Shihabudheen and Hamsa v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV MONDAY,THE12[TH]DAYOFJUNE2023/22NDJYAISHTA,1945 ``` ``` CRL.MCNO.2220OF2023 ``` ``` INCC622/2022OFJUDICIALMAGISTRATEOFFIRSTCLASS-I,OTTAPPALAM PETITIONERS/ACCUSEDNOS.1AND2: ``` ``` 1SHIHABUDHEEN AGED39YEARS ,S/OSAIDALAVI,MELETHALAKKALHOUSE,NELLAYAP.O, POTTACHIRA,OTTAPPALAMTALUK,PALAKKADDISTRICT, - PIN679335. 2HAMSA AGED49YEARS S/OMOIDEEN,MALAYILHOUSE,NELLAYAPO,POTTACHIRA, - OTTAPPALAMTALUK,PALAKKADDISTRICT.,PIN679335. BYADVS. SHAHIMBINAZIZ MOHAMMEDSHAFI.K ``` ## **`RESPONDENTS/STATE/DE FACTO COMPLAINANT:`** ``` 1STATEOFKERALA REPRESENTEDBYITSPUBLICPROSECUTOR,HIGHCOURTOF - KERALA,ERNAKULAM,KOCHI,PIN682031. 2MUHAMMEDNIYAS AGED36YEARS S/OABDULLA,MELETHALAKKALHOUSE,NELLAYAPO, POTTACHIRA,OTTAPPALAMTALUK,PALAKKADDISTRICT, - PIN679335. 3MUHAMMEDNISHAD AGED36YEARS S/OMUHAMMED,MALAYILHOUSE,NELLAYAPO,POTTACHIRA, - OTTAPPALAMTALUK,PALAKKADDISTRICT.,PIN679335. BYADVM.IANWARSADATH ``` ``` SRI.VIPINNARAYAN,SRPP ``` Crl.M.C No. 2220 of 2023 2 ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 12.06.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C No. 2220 of 2023 3 ## **ORDER** This petition is filed invoking the powers of this Court under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity). 2. The petitioners herein are the accused Nos.1 and 2 in C.C.No.622 of 2022 on the files of the Judicial First Class Magistrate Court, Ottapalam. In the said case, they are accused of having committed offences punishable under Sections 341, 323, 324, 201 r/w 34 of the IPC. 3. The prosecution allegation, as borne out from the records, are as under: On 25.8.2022 at about 21.30 hrs., the petitioners, in furtherance of their common intention, wrongfully restrained respondents Nos. 2 and 3 and attacked them with weapons causing injuries. 4. The learned counsel appearing for the petitioners submitted that the parties have settled their disputes and they are not desirous of pursuing the prosecution proceedings. Reliance is placed on Annexures A3 and A4 affidavits filed by the party respondents to substantiate their contention. According to the learned counsel, if the proceedings are terminated, recording the amicable settlement, the parties can embark upon their future paths in an Crl.M.C No. 2220 of 2023 4 atmosphere of tranquility and mutual respect. 5. When the matter had come up for admission, this court had directed the investigating officer concerned to record the statement of the defacto complainant/injured/victim and report as to whether the assertion in the petition and the affidavit filed in support that entire disputes have been resolved between the parties concerned is true and genuine. The investigating officer was also directed to report as to whether the petitioners are persons with criminal antecedents and whether there is any other impediment in terminating the criminal proceedings. 6. The learned Public Prosecutor has raised reservations with regard to the prospect of quashing the present proceedings purely on the basis of the settlement. It is urged that the extant circumstances may not warrant the exercise of the court's inherent jurisdiction, as conferred under Section 482 of the Code of Criminal Procedure. However, it is fairly submitted that no other transgressions or complaints stand registered against the petitioners hitherto. It is further submitted that the statements of the party respondents have been recorded, and they have unequivocally expressed that they harbor no enduring grievances. 7. I have considered the submissions and have gone through the records. Crl.M.C No. 2220 of 2023 5 8. In **State of M.P. v. Laxmi Narayan,[1]** , a three-judge bench of the Hon’ble Supreme Court has summarised the law as laid down in **Gian Singh v. State of Punjab[2]** , **Narinder Singh v. State of Punjab[3]** , **State of Rajasthan v. Shambhu Kewat[4]** , **State of M.P. v. Deepak[5] , State of M.P. v. Manish[6]** , **J. Ramesh Kamath v. Mohana Kurup[7]** ; **State of M.P. v. Rajveer Singh[8]** , **Parbatbhai Aahir v. State of Gujarat[9] , State of M.P. v. Kalyan Singh[10] and State of M.P. v. Dhruv Gurjar[11]** . It was laid down as under: 15. Considering the law on the point and the other decisions of this Court on the point referred to hereinabove, it is observed and held as under: - 15.1. That the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves; - 15.2. Such power is not to be exercised in those prosecutions which involved heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society; - 1 [(2019) 5 SCC 688] 2 (2012) 10 SCC 303 3 2014 (6) SCC 466 4 (2014) 4 SCC 149 5 (2014) 10 SCC 285 6 (2015) 8 SCC 307 7 2016) 12 SCC 179 8 (2016) 12 SCC 471 9 (2017) 9 SCC 641 10 (2019) 4 SCC 268 11 (2019) 5 SCC 570] Crl.M.C No. 2220 of 2023 6 - 15.3. Similarly, such power is not to be exercised for the offences under the special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender; - 15.4. Offences under Section 307 IPC and the Arms Act, etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone, and therefore, the criminal proceedings for the offence under Section 307 IPC and/or the Arms Act, etc. which have a serious impact on the society cannot be quashed in exercise of powers under Section 482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to framing the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delicate parts of the body, nature of weapons used, etc. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge-sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paras 29.6 and 29.7 of the decision of this Court in Narinder Singh [Narinder Singh v. State of Punjab, (2014) 6 SCC 466 : (2014) 3 SCC (Cri) 54] should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove; - 15.5. While exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offenses, which are private in nature and do not have a serious impact on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and Crl.M.C No. 2220 of 2023 7 why he was absconding, how he had managed with the complainant to enter into a compromise, etc. 9. Having carefully analyzed the nature of the allegations, the gravity of the offense, the severity of injuries inflicted, antecedents of the petitioners, and the amicable relationship that now exist between the parties, I am of the considered opinion that the quashing of proceedings on the basis of the settlement will not have any adverse impact on the society and it would only inure to bring about peace and secure the ends of justice. Even otherwise, persisting with the prosecution would be nothing but a waste of time as the prospects of conviction are bleak. Having considered all the relevant circumstances, I am of the considered view that this Court will be well justified in invoking its extraordinary powers under Section 482 of the Code to quash the proceedings. Resultantly, this petition will stand allowed. Annexure-A2 Final Report in Crime No. 530/2022 of Cherupulassery Police Station and all further proceedings pending against the petitioners as C.C.No.622 of 2022 on the files of the Judicial First Class Magistrate Court, Ottapalam are quashed. Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** sru Crl.M.C No. 2220 of 2023 8 ## **`APPENDIX OF CRL.MC 2220/2023`** ``` PETITIONERSANNEXURES ``` ``` Annexure-A1ATRUECOPYOFTHEFIRNO.530/2022DATED 1.10.2022OFCHERPULASSERRYPOLICESTATIONOF PALAKKADDISTRICT. ``` ``` Annexure-A2THECERTIFIEDCOPYOFTHEFINALREPORTINCC 622/2022,DATED2.11.2022INCRIMENO. 530/2022,SUBMITTEDBEFORETHEJFCM OTTAPPALAM. ``` ``` Annexure-A3ATRUECOPYOFTHESETTLEMENTAFFIDAVITDATED 2.11.2022EXECUTEDBYTHE2ND RESPONDENT/DEFACTOCOMPLAINANT. ``` ``` Annexure-A4ATRUECOPYOFTHESETTLEMENTAFFIDAVITDATED 2.11.2022OFTHE3RDRESPONDENT. ```