Sideeque Thayyil and Others v. State of Kerala and Kasim

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 25TH DAY OF NOVEMBER 2016/4TH AGRAHAYANA, 1938** ## **Crl.MC.No. 7420 of 2016 ()** **--------------------------SC. NO.1022/2014 OF ADDL. SESSIONS COURT, KOZHIKODE. CRIME NO. 271/2014 OF KUTTIYADI POLICE STATION, KOZHIKODE.** **......** ## **PETITIONERS/ACCUSED NO.1 TO 5:** ## **------------------------------------------------------** **1. SIDEEQUE THAYYIL, S/O. IBRAYI, AGED 23 YEARS, MEETHALE, THAYYIL HOUSE, NITTUR, KAKKATTIL, VATTAKANDIPARA, KOZHIKODE-673 507.** **2. NASEER CHOIRKULLANGARA, S/O.KASIM, AGED 23 YEARS, CHOYYARKULANGARA HOUSE, POOMUKKAM, CHERAPUAM, KOZHIKODE-673 507.** **3. MUHAMMED SADIQUE, S/O.MOIDU, AGED 25 YEARS, CHOYYARKULANGARA HOUSE, POOMUKKAM, CHERAPUAM, KOZHIKODE-673 507** **4. MUHAMMED C.K., S/O.MOIDU, AGED 26 YEARS, CHOYYARKULANGARA HOUSE, POOMUKKAM, CHERAPUAM, KOZHIKODE-673 507** **5. MUHAMMED P.C., S/O.SOOPY, AGED 25 YEARS, POOVOOTTUMCHALIL HOUSE, NITTOOR (PO), KAKKATTIL KOZHIKODE-673 507.** **BY ADVS.SRI.MATHEWS K.UTHUPPACHAN, SRI.TERRY V.JAMES, SRI.SHARAN SHAHIER.** ## **Crl.MC.No. 7420 of 2016** ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** **----------------------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. KASIM, S/O.KUNJABDULLA, AGED 46 YEARS, PARAMBATH HOUSE, NITTUR P.O., KAKKATIL VAZHI, KOZHIKODE-673 507.** **R1 BY PUBLIC PROSECUTOR SRI.T.R. RENJITH. R2 BY ADV. SRI.ARJUN S.RAJ** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** rs. ## **Crl.MC.No. 7420 of 2016** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** |**ANNEXURE**|**1**|**:**|**A TRUE FAIR COPY OF THE FINAL REPORT IN**| |---|---|---|---| ||||**CRIME NO.271/2014 OF KUTTIYADI POLICE STATION,**| ||||**KOZHIKODE.**| |**ANNEXURE**|**2**|**:**|**THE AFFIDAVIT DATED 28-10-2016 SWORN BY THE**| ||||**2ND RESPONDENT/DEFACTO COMPLAINANT.**| |**ANNEXURE**|**3**||**COPY OF THE WOUND CERTIFICATE DATED 28/03/2014.**| |**ANNEXURE**|**4**||**TRUE COPY OF THE JUDGMENT IN CRIME NO.248/2014 WAS**| ||||**TAKEN ON FILE AS CC.721/2014 BEFORE THE JUDICIAL**| ||||**FIRST CLASS MAGISTRATE-II, THAMARASSERY.**| ## **RESPONDENT'S ANNEXURES:NIL.** **//TRUE COPY//** ## **P.S. TO JUDGE** rs. ## **RAJA VIJAYARAGHAVAN, V., J.** ------------------------------------------ ## **Crl.M.C. No.7420 of 2016** -----------------------------------------Dated this the 25[th] day of November, 2016 ## **O R D E R ~~~~~~~~** - 1.This petition is filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') with a prayer to invoke the extraordinary inherent powers and to quash the pending criminal proceedings. 2. The petitioners herein are the accused Nos.1 to 5 in S.C.No.1022 of 2014 on the file of the Additional Sessions Judge, Kozhikode. They stand indicted under Sections 143, 147, 148, 447, 324, 307 r/w Section 149 of the IPC. The 2[nd] respondent herein is the de facto complainant. - 3.The prosecution allegation is that on 28.03.2014, the petitioners formed themselves into an unlawful assembly and in prosecution of their common object wrongfully Crl.M.C. No.7420 of 2016 **-2-** restrained the 2[nd] respondent and thereafter assaulted him with weapons causing injuries. - 4.Heard the learned counsel appearing for the petitioners, the 2[nd] respondent as well as the learned Public Prosecutor. - 5.The learned counsel appearing for the 2[nd] respondent submits that the dispute between the parties has been amicably resolved. Attention of this Court is invited to the affidavit filed by him to buttress his submission. It is urged that the dispute is purely personal in nature and would not affect public peace or tranquility. Summing up it is prayed that the criminal proceedings be terminated to promote peace and harmony. - 6.The learned Public Prosecutor after getting instructions submits that the petitioners are involved in two other crimes and that it is not in the interest of justice to quash Crl.M.C. No.7420 of 2016 **-3-** the proceedings. It is also submitted that the offence under Section 307 of the IPC falls in the grave category and cannot be quashed on the ground of compromise. 7.In response, the learned counsel appearing for the petitioners has produced Annexure-A4 judgment of acquittal rendered in C.C.No.721 of 2014 which involves Crime No.248 of 2014 of Kuttiyadi Police Station. It is further submitted that the only other offence is one under Section 427 of the IPC. The learned counsel has also produced the Accident Register cum Wound Certificate of the 2[nd] respondent as Annexure-3 which would reveal that the injuries sustained by the 2[nd] respondent are minor in nature. - 8.I have considered the submissions . - 9.In **Gian singh v. State of Punjab** [(2012) 10 SCC 303] Apex Court has laid down that in appropriate cases, the Crl.M.C. No.7420 of 2016 **-4-** High Court can take note of the amicable resolution of disputes between the victim and the wrongdoer to put an end to the criminal proceedings. It was observed as follows : _“61. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceedings or continuation of criminal proceedings would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceedings.”_ 10.The aforesaid dictum stands reiterated by the Apex Court in **Narinder Singh v. State of Punjab** [(2014) 6 SCC 466], in which case the accusation involved offence under Section 307 of the IPC as well. After exhaustively considering the various aspects, it was observed as Crl.M.C. No.7420 of 2016 **-5-** ## follows in paragraph No.29 of the judgment. ## _XXXXXXXXXXXX_ _29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:_ _(i) ends of justice, or_ _(ii) to prevent abuse of the process of any court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives._ ## _Xxx xxx_ _29.6 Offences under S.307 IPC would fall in the category of heinous and serious offences and therefore is to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of S.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 S.307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under S.307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury_ Crl.M.C. No.7420 of 2016 **-6-** _sustained, whether such injury is inflicted on the vital / delegate parts of the body, nature of weapons used etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the later case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship_ _xxxxx_ 11.In **Yogendra Yadav and Others v. State of Jharkhand and Another** [2014(9) SCC 653], the Apex Court had occasion to take note of the compromise arrived at between the injured and the accused in a case involving Section 307 of the IPC and had quashed the proceedings. Crl.M.C. No.7420 of 2016 **-7-** 12.In **Narinder Singh** and **Yogendra Yadav** (supra), the Supreme Court had held that even in cases where Section 307 of the IPC is incorporated, this Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case, it can refuse to accept the settlement and quash the criminal proceedings whereas in the later case it would be permissible for the High Court to accept the plea of compounding the offence based on complete settlement between the parties. It was held that at that stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship. 13.In view of the binding precedents of the Apex Court and after examining the facts of the instant case, this Court is of the view that having regard to the affidavit filed and the ## Crl.M.C. No.7420 of 2016 **-8-** compromise entered into between the parties, there is minimum chance of the witnesses coming forward in support of the prosecution case. The chance of conviction is remote. It also does not appear that the offence will have a serious impact on the society. Having taken all these factors into consideration, I am of the considered view that this Court will be well justified in invoking its extra ordinary powers under Section 482 of the Code to quash the proceedings. In the result, this petition will stand allowed. Annexure-1 final report and all proceedings pursuant thereto against the petitioners now pending as S.C.1022 of 2014 on the file of the Additional Sessions Judge, Kozhikode are quashed. **Sd/-** **RAJA VIJAYARAGHAVAN, V. JUDGE** Ps/25/11/16