Swathik and Vaishnava Unnithan v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 26[TH] DAY OF SEPTEMBER 2023 / 4TH ASWINA, 1945 CRL.MC NO. 7343 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT CC IN 2643/2020 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOLLAM ``` ## **`PETITIONERS/ACCUSED NO. 1 & 2:`** - `1 SWATHIK AGED 30 YEARS S/O SUDHIPEDA, KETTUNKASSSERI VEEDU, ASRAMAM CHERRY, KOLLAM EAST VILLAGE, ASHRAMAM PO, KOLLAM, PIN - 691002` ``` 2VAISHNAVA UNNITHAN AGED 34 YEARS D/O RAJENDRAN UNNITHAN, MULAVANA PUTHEN VEEDU POOVATTOOR WEST, MAVADI P.O, KOLLAM-, PIN - 691507 BY ADV M.RAJESH ``` ## **`RESPONDENTS/COMPLAINANTS:`** - `1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031` - `2 THE INSPECTOR OF POLICE KOLLAM EAST POLICE STATION, CHINNAKKADA PO, KOLLAM (DIST), PIN - 691001` - `3 UNNIKRISHNAN AGED 28 YEARS` ``` CRL. M.C. NO.7343 OF 2023 ``` **==> picture [7 x 9] intentionally omitted <==** ``` S/O SANAL KUMAR, SRINILAYAM, PERUMPUZHA CHERRY, ELAMPALLOOR VILLAGE, ELAMPALLOOR PO, KOLLAM, PIN - 691501 ``` ## **`PRESENT:`** ``` SMT. SREEJA V., PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL. M.C. NO.7343 OF 2023 ``` 3 **P.V.KUNHIKRISHNAN, J. -------------------------------Crl.M.C. No. 7343 of 2023 ---------------------------------------------Dated this the 26[th] day of September, 2023** ## **O R D E R** This Criminal Miscellaneous Case is filed under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity). 2. The petitioners are the accused in C.C. No. 2643/2020 on the files of the Judicial Magistrate of First Class Court – II, Kollam, arising from Crime No.3081/2020 of Kollam East Police Station. The above case is charge sheeted against the petitioners alleging offenses punishable under Sections 447 and 427 r/w Section 34 of IPC. 4 ``` CRL. M.C. NO.7343 OF 2023 ``` 3. The prosecution case is that the accused persons trespassed into the property of the victim and committed mischief. 4. The learned counsel for the petitioners submits that the parties have settled their dispute and do not wish to pursue the prosecution proceedings. The counsel relies on the affidavit filed by the victim in support of his contention. The counsel appearing for the victim also submitted that the matter is settled and the victim has no objection in quashing the prosecution. 5. The learned Public Prosecutor, on instructions, has expressed reservations about quashing the proceedings solely on the basis of the settlement. But the Public Prosecutor conceded that the matter is settled between the parties. 6. This Court has considered the submission of 5 ``` CRL. M.C. NO.7343 OF 2023 ``` the petitioners, victim and the Public Prosecutor and has also gone through the records including the affidavit filed by the victim. 7. In State of **Madhya Pradesh v Laxmi Narayan and Others (2019 (5) SCC 688),** three judge bench of the Hon'ble Supreme Court has summarized the situation in which non compoundable offences can be quashed invoking the powers under Section 482 of the Code. The apex court in Laxmi Narayan's case (supra) also relied on the law laid down in **Gian Singh v. State of Punjab and another (2012 (10) SCC 303)** and **Narinder Singh and others v. State of Punjab and another (2014 (6) SCC 466).** The apex court in paragraph 13 of the Laxmi Narayan's case discussed the law in detail and the same is extracted hereunder: “13. Considering the law on the point and the other decisions of this Court on the point, referred ``` CRL. M.C. NO.7343 OF 2023 ``` 6 to herein above, it is observed and held as under: i) that the power conferred under S.482 of the Code to quash the criminal proceedings for the non - compoundable offences under S.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; ii) 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; iii) similarly, such power is not to be exercised for the offences under the special statutes like 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; iv) offences under S.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 S.307 IPC and / or the Arms Act etc. which have a serious impact on the society cannot be quashed in exercise of powers under S.482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves. However, the High Court would not ``` CRL. M.C. NO.7343 OF 2023 ``` 7 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 framing the charge under S.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 / delegate 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 paragraphs 29.6 and 29.7 of the decision of this Court in the case of **Narinder Singh** (supra) should be read harmoniously and to be read as a whole and in the circumstances stated herein above; v) while exercising the power under S.482 of the Code to quash the criminal proceedings in respect of non- compoundable offences, which are private in nature and do not have a serious impart 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 why he was absconding, how he had managed with the complainant to enter into a compromise etc.” 8 ``` CRL. M.C. NO.7343 OF 2023 ``` 8. Keeping in mind the above dictum laid down by the apex court, this court perused the facts in this case and also perused the documents produced by the parties. After going through the entire facts and circumstances, I am of the considered opinion that the dispute is private in nature and the settlement can be accepted. Therefore, this Criminal Miscellaneous Case is allowed. All further proceedings against the petitioners in C.C. No. 2643/2020 on the files of the Judicial Magistrate of First Class Court – II, Kollam, arising from Crime No.3081/2020 of Kollam East Police Station, are quashed. Sd/- nvj ## **P.V.KUNHIKRISHNAN JUDGE** ``` CRL. M.C. NO.7343 OF 2023 ``` 9 ## **`APPENDIX OF CRL.MC 7343/2023`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE1THE TRUE COPY OF THE CHARGE SHEET IN CRIME NO. 3081/2020 OF KOLLAM EAST POLICE STATION ``` ``` ANNEXURE2AN AFFIDAVIT SUBMITTED BY THE 3RD RESPONDENT DATED 09.09.2023 ``` RESPONDENTS EXHIBITS :NIL //TRUE COPY// PA TO JUDGE