T. H. Badarudheen v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 3RD DAY OF OCTOBER 2016/11TH ASWINA, 1938** ## **Crl.MC.No. 2409 of 2015 ()** ## **---------------------------** ## **CP 4/2015 of J.M.F.C.-I, ALUVA IN CRIME NO. 908/2013 OF ALUVA EAST POLICE STATION , ERNAKULAM** ## **PETITIONER(S): ---------------------** **T.H. BADARUDHEEN S/O.HASSAN, THANDICKAL HOUSE, KAPRASSERY, NEDUMABASSERY PO, ERNAKULAM DISTRICT, PIN 683585** **BY ADVS.SRI.T.S.RAJAN SMT.MAREEJA MOOSA SRI.K.ABDUL HAKEEM** **RESPONDENT(S): -----------------------** **1. STATE OF KERALA REPRESENTED BY THE INSPECTOR OF POLICE, ALUVA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, COCHIN 682018** ## **2. SUMESH** **S/O.SUKUMARAN, PUTHENPURAKAL HOUSE, CHIRATTAPALAM, FORT KCOHI PO, ERNAKULAM DISTRICT 682002** ## **3. YASSIR** **S/O.KAMAL, PUTHIYAVEETIL HOUSE, CHULLIKAL KARA, THOPPUMPADY PO, ERNAKULAM DISTRICT, NOW RESIDING AS LIFT OPERATOR IN JEDDAH, SAUDI ARABIA** ## **R2 & 3 BY ADV. SRI.K.A.SALIL NARAYANAN R1 BY PUBLIC PROSECUTOR SAIGI JACOB PALATTY** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 2409 of 2015 ()** **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **------------------------------------** **ANNEXURE 1:CERTIFIED COPY OF THE FIR AND FIS IN CRIME NUMBER 908/2013 OF ALUVA EAST POLICE STATION** **ANNEXURE II:CERTIFIED COPY OF THE CHARGE IN CP.NO.4/2015 PENDING BEFORE THE JFCM I ALUVA** **ANNEXURE III:CERTIFIED COPY OF THE ACCIDENT REGISTER CUM WOUND CERTIFICATE OF CWI SUMESH DATED 17.03.2013 ISSUED BY DR. AJEESH PR** **ANNEXURE IV:AFFIDAVIT OF 2ND RESPONDENT, DEFACTO COMPLAINT** **ANNEXURE V:AFFIDAVIT OF 3RD RESPONDENT** **RESPONDENT(S)' EXHIBITS NIL ----------------------------------------** **// True Copy // P.A. To Judge** **rmm** ALEXANDER THOMAS, J. -------------------------CRL.M.C. No.2409 of 2015 -------------------------Dated this the 3[rd] day of October, 2016 ## O R D E R The petitioner is the 5[th] accused in C.P.No.4/2015 in Annexure I, Crime No.908/2013 of the Aluva East Police Station pending before the Judicial First Class Magistrate Court-I, Aluva, wherein, the offences alleged are those under Sections 365, 395, and 307 of IPC. The case alleged against the petitioner is that the 5[th] accused had taken the de facto complainant/CW1 (R-2 herein ) and CW2 (R-3 herein) with their lorry from Aluva on 17.03.2013 at 11.15 p.m. to Thottakkattukara and when the lorry reached in front of the Safi Dry cleaners at Desom road, the other accused (A1,2,3,4, 6 &7) had attacked them and inflicted severe injury and thereby committed the offence. There was also an allegation that the accused persons had robbed Rs.4000/- from the 3[rd] respondent. The alleged motive is that the accused persons were having inimical relationship with CW1 and CW2 on account of the dispute in the matter of CW1 and CW2 removing waste in the locality. It is contended by the petitioner is that Annexure-III, wound certificate does not disclose any serious CRL.M.C. No.2409 of 2015 2 injuries on CW1 and it only state that it support tenderness to his cheek and on the lower back. Annexure-VII statement given by CW2 (R-3) which form part of the impugned Annexure II charge sheet, which clearly disclosed that there are no specific allegations raised against the petitioner herein, especially, in the alleged act of violence etc. 2. Respondents 2 & 3 who have separately filed affidavits as per Annexure 4 and 5, in which, they clearly stated that they have not identified the petitioner in the incident and they have not given the name of the petitioner to the police and that they have no grievances against the petitioner and that they have no objection in the quashment of the petition as against the petitioner alone who is A5 and that there are no disputes pending between them and the petitioner. The said 2[nd] and 3[rd] respondents have entered appearance through the learned counsel who has also reiterated the said submissions on the basis of the affidavits sworn to by the parties that CW1 and CW2 ( R-2 and R-3) have no grievances against the petitioner and that this Court may consider the exercise of the extra ordinary discretion conferred under Section 482 of Cr.P.C so as to quash the impugned criminal proceedings as against the petitioner alone. It CRL.M.C. No.2409 of 2015 3 is seriously urged by the petitioner that he has secured employment as peon in the State Bank of Travancore (SBT) as evident by Annexure -VI and that the matter has been settled between the de facto complainants (R-2 and R-3) and the petitioner as evident from the aforesaid affidavits filed by the parties and as the petitioner had not committed any overt acts against R2 and R3, this Court may exercise discretion under 482 of Cr.P.C. so as to quash the criminal proceedings against the petitioner alone, as otherwise the pendency of the case will adversely affect his continuance of his job as peon in the service of the State Bank of Travancore and that he belongs to a poor family etc. When the matter was heard in detail on an earlier occasion, the petitioner had strongly urged that going by the entire circumstances pointed out in the impugned FI statement and the charge sheet and the other materials from records as well as the other attendance materials on record and the circumstances emerging in this case, that some of the major offences alleged in the impugned criminal proceedings are not in any way disclose as against the petitioner, especially, in the light of attendant circumstances. This Court had passed an interim order in the impugned criminal proceedings on 08.06.2015, the CRL.M.C. No.2409 of 2015 4 ## said order reads as follows:- “Admit Crl.M.C. P.P. takes notice for R-1 State of Kerala. Sri.K.A.Salil Narayanan takes notice for R-2 and R-3. Arguments were heard in detail in this case. The learned counsel for the petitioner has strongly urged that going by the entire circumstances projected in the impugned FI statement and the materials on record as well as the other attendant materials on record and the circumstances emerging in this case, it can be seen that some of the major offences alleged against the petitioner are not really disclosed against the petitioner in the light of the those attendant circumstances. The learned counsel for the petitioner has further submitted that the petitioner has secured an appointment in the subordinate cadre of the State Bank of Travancore, as a Peon as evident from Anx.A-VI order. It is pointed by the learned Public Prosecutor on the basis of the instructions from the investigating officer that except for this crime, no other criminal cases are pending against the present petitioner. The apprehension of the petitioner is that the pendency of this crime may be taken as an adverse factor for deciding on the issue as to his continuance in service of the public sector bank. Having heard both sides, this Court is of the considered opinion that interim stay should be granted in this case. Accordingly, it is ordered that all impugned criminal proceedings pending against the petitioner pursuant to the final report/charge sheet filed in Anx.I Crime No.908/2013 of Aluva East Police Station, which has led to the pendency of C.P.No.4/2015 on the file of the Judicial First Class Magistrate's Court, Aluva, will remain stayed as far as the petitioner alone is concerned. In view of the above said order staying the impugned criminal proceedings in this case, it is made clear that those impugned criminal proceedings, need not by itself be taken as an adverse factor for deciding on the question of continuance in service of the petitioner in any public sector employment.” 3. Heard Sri.T.S. Rajan, the learned counsel appearing for the petitioner, learned Prosecutor appearing for the R-1 State and Sri.K.A.Salil Narayanan, the learned counsel appearing for R2 and R3. 4. The learned counsel appearing respectively for the petitioner and respondents 2 and 3 have relied on the ruling of this Court in the case Manoj and Others v. State of Kerala and CRL.M.C. No.2409 of 2015 5 Others [2014 (3) KHC 524 =2014 Cri LJ 4040] and have pointed out that in similar case therein, this Court has quashed the impugned criminal proceedings as against the petitioner therein alone, taking into account the fact that he had secured a Government employment. The offences charged in that case against the petitioner therein was under Sections 143,147,148, 149, 307, 324, 506(ii) IPC and Section 27 of the Arms Act. There were 8 accused in that case who had jointly filed the petition to quash the impugned criminal proceedings in the light of the settlement rival to the victims. 5. This Court referred to the legal principles laid by the Apex Court in various decisions especially that in Narinder Singh and Others v. State of Punjab and Another reported in [2014 (6) SCC 466 =2014 (4) SCALE 195=2014 KHC 4195] and held that ordinarily in the case of serious offences, the criminal proceedings cannot be quashed merely on the basis of the settlement arrived at between the accused and victims. Paragraphs 14 to 16 the ruling of this Court in Manoj's case (supra) (which deals with the ruling of the Apex Court in Narinder Singh's case supra) reads as follows:- “14. Further in the decision reported in Narinder Singh and Others v. State of Punjab and Another, 2014 KHC 4195:2014 (4)SCALE 195:ILR 2014 (2) Ker.85:2014(2) KLJ 252 the Hon'ble CRL.M.C. No.2409 of 2015 6 Supreme Court has held that: “At the same time, one has to keep in mind the subtle distinction between the power of compounding of offences given to Court under S.320 of the Code and quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction conferred upon it under S.482 of the Code. Once, it is found that compounding is permissible only if a particular offence is covered by the provisions of S.320 of the Code and the Court in such cases is guided solitary and squarely by the compromise between the parties, insofar as power of quashing under S.482 of the Code is concerned, it is guided by the material on record as to whether the ends of justice would justify such exercise of power, although the ultimate consequence may be acquittal or dismissal of indictment.” 15. Further in the same decision while considering the question as to whether offence under S.307 of the Indian Penal Code can be quashed on the ground of compromise, it has been observed that: “ Finding an answer to this question becomes imperative as the philosophy and jurisprudence of sentencing is based thereupon. If it is heinous crime of serious nature, then it has to be treated as a crime against the society and not against the individual alone. Then it becomes the solemn duty of the State to punish the crime doer. Even if there is a settlement/compromise between the perpetrator of crime and the victim, that is of no consequence. Law prohibits certain acts and /or conduct and treats them as offences. Any person committing those acts is subject to penal consequences which may be of various kind.” 16. In the same decision it has been held that: “ Therefore, in respect of such offences which are treated against the society, it becomes the duty of the State to punish the offender. Thus, even when there is a settlement between the offender and the victim, their will would not prevail as in such cases the matter is in public domain. Society demands that the individual offender should be punished in order to deter other effectively as it amounts to greatest good of the greatest number of persons in a society.” 6. However, this Court in Manoj's case (Supra) further held in paragraph 17 that it has also been laid down by the Apex Court in Narinder Singh's case supra that, there may be, offences falling in the category where “correctional” objective of criminal law would have to be given more weightage in contrast with CRL.M.C. No.2409 of 2015 7 “deterrence” philosophy. Punishment, whatever else may be, must be fair and conducive to good rather than further evil and if in a particular case, the Court is of the opinion that the settlement between the parties would lead to more good, better relations between them; would prevent further occurrence of such encounters between the parties, it may hold settlement to be on a better pedestal and that it is a delicate balance between the two conflicting interests which is to be achieved by the Court after examining all these parameters and then deciding as to which course of action it should take in a particular case.” 7. Accordingly, on the basis of the aforesaid ruling of the Apex Court in Narinder Singh's case (supra), this Court in Manoj's case (supra) held that ordinarily, the impugned proceedings therein cannot be quashed merely on the basis of settlement. But however, it was noticed therein that there was exceptional circumstances in the case of one of the accused therein, viz., A6 in as much as he had got a Government employment and that with a view to give him an opportunity to reform himself and settle in life, this Court would exercise its extra ordinary discretion conferred under Section 482 of Cr.P.C. so as to quash the impugned criminal proceedings as against the said accused CRL.M.C. No.2409 of 2015 8 ## alone. Paragraph 19 of Manoj's case (supra) reads as follows:- ''19. So under the circumstances this Court feels that it is not a fit case to quash the proceedings as against all the accused persons merely on the ground that it was settled between the parties especially when it is a political clash and grave offences have been incorporated. But, as far as the 6[th] petitioner is concerned, it is seen that he has got an employment now and he is undergoing training which is evident from Annexure -IV letter. It is true that this Court has in one writ petition observed that criminalisation in service has to be eliminated. This petitioner had without knowing the consequences, under the blind belief of politics involved in this incident and he has no other criminal background as well. If this opportunity is denied to him, he is likely to get frustration in life and that may lead to other consequence as well. So giving an opportunity to man to reform himself, correct himself and lead a good life always must be the policy in criminal matters if the Court is of the opinion that, that will give him a better thinking in his future life. So hoping that this will be a lesson for him that involving in criminal activities on the basis of politics without knowing his responsibility to the society will land him in trouble in future and hoping that he might have understood consequences of his act and considering the nature of overt act alleged against him shows that he has no intention to commit grave offence alleged, this Court feels that taking this as an exceptional circumstances, composition as regards the 6[th] petitioner alone can be accepted for the purpose of quashing the proceedings invoking the power under S.482 of the Code under the hope that he might have understood the consequences of his act and that he will not repeat the same even after he is getting an employment and he will work for the society as a Government servant and not as a political servant of any particular party. So under the circumstance, this Court feels that this is not a fit case to quash the entire proceedings as against all the petitioners especially when it is a political clash between two groups and such clash are causing threat to life of persons belonging to both groups and also considering the fact that some of the accused are accused in other cases as well. But taking an exceptional circumstance, this Court feels that the power can be exercised only in respect of 6[th] petitioner alone as he has got an employment and as an opportunity to reform himself and settle in life. So the application is allowed in part. The prayer of quashing the proceedings as against the petitioners 1 to 5 and 7 (as per clause title 1 to 3,5,6 and 8) is rejected and proceedings as against the 6[th] petitioner namely Renjith Kumar alone is quashed and further proceedings in SC No.1065/13 as against the petitioner namely Renjith Kumar (Crime No.299/2011 of Poochakkal Police Station) pending before Additional Sessions Court No.III, Alappuzha alone is quashed and the prayer to quash in respect of other petitioners is rejected.'' According this Court in Manoj's case (supra), while rejecting CRL.M.C. No.2409 of 2015 9 the prayer to quash the proceedings against all other accused in the case, allowed the application in part to the extent of quashing the impugned criminal proceedings as against the said accused No.6 therein who had secured a Government employment. 8. On a consideration of the facts of this case, this Court is of the considered opinion that going by the materials on record as well as various attendant circumstances brought to notice by the parties concerned, the facts of the case of the petitioner herein (A-5) are quite similar to the one dealt with the case of the accused in Manoj's case (supra) wherein this Court had quashed the impugned criminal proceedings to the limited extent, it affected that accused therein alone. It has been brought to the notice that based on the stay order granted by this Court, the petitioner herein who had secured employment in the State Bank of Travancore has been allowed to continue his service. It is not in dispute that the petitioner belongs to a socially and economically weaker section of the society and he had secured the job as a peon in the Bank and that he has no previous criminal antecedents. Therefore, as held by this Court in Manoj's case (supra), he has been fortunate enough to get a Government job and therefore, this Court could take a view that an CRL.M.C. No.2409 of 2015 10 opportunity should be given to correct and reform himself and settle in life. In this view of the matter, it is ordered in the interest of justice that the impugned criminal proceedings at Annexure II (arising out of Annexure I FIR), which has led to the pendency of C.P.No.4/2015 on the file of the Judicial First Class Magistrate Court - I, Aluva and all other proceedings taken in pursuance thereof will stand quashed as against the petitioner alone. It is made clear that none of the observations in this order will any manner affect the trial as against the other accused, which has to proceed untrammelled and uninfluenced by any of the observations of this order. With these observations and directions, the Criminal Miscellaneous Case stands finally disposed of. Sd/ALEXANDER THOMAS JUDGE // True Copy // P.A. To Judge rmm