Thajudheen and others v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 29[TH] DAY OF SEPTEMBER 2023 / 7TH ASWINA, 1945 ``` ## **`CRL.MC NO. 7308 OF 2023`** ``` AGAINST THE ORDER/JUDGMENT CC 767/2021 OF JUDICIAL ``` ## **`MAGISTRATE OF FIRST CLASS , KAYAMKULAM`** ## **`PETITIONER/S:`** ``` 1THAJUDHEEN AGED 38 YEARS ``` ``` S/O BASHEER, THARAMEL PUTHEN VEEDU, KANNAMBALLI BHAGOM, KEERIKKAD VILLAGE, ALAPPUZHA, PIN - 690502 ``` ``` 2IJAS AGED 24 YEARS S/O RASHEED, PULIMOOTTIL THEKKETHIL, NEAR FIRE STATION, KAYAMKULAM VILLAGE, ALAPPUZHA, PIN - 690572 ``` - `3 AJAS AGED 22 YEARS S/O RASHEED, PULIMOOTTIL THEKKETHIL, NEAR FIRE STATION, KAYAMKULAM VILLAGE, ALAPPUZHA, PIN - 690572` - `4 ABDUL SHUKKOOR @ KOCHUMON AGED 33 YEARS` ``` S/O HASSAN KUNJU, VELLALI VADAKKATHIL, NEAR FIRE STATION, KAYAMKULAM VILLAGE, ALAPPUZHA, PIN - 690572 ``` ``` 5RAJEESH AGED 35 YEARS S/O RASHEED, PATTATH MURIYIL HOUSE, KAYAMKULAM, MUNICIPAL 10, ERUVA MURI, PATHIYUR VILLAGE, KAYAMKULAM, ALAPPUZHA, PIN - 690572 6NIYAS H AGED 31 YEARS S/O HUSSAIN, VALAYIKKAKATH THARAYIL, NEAR FIRE STATION, KAYAMKULAM, KAYAMKULAM VILLAGE, ALAPPUZHA, PIN - 690572 ``` - `7 ANSHAD` Crl.M.C No. 7308 of 2023 -2- ``` AGED 32 YEARS S/O NASAR, VELLALIL VADAKKATHIL, KANNAMBALLI BHAGOM, KEERIKKAD VILLAGE, ALAPPUZHA, PIN - 690502 8SHEHEER @ PANAMBALLI AGED 31 YEARS S/O SHEREEF, KOTTAKUZHI HOUSE, NEAR FIRE STATION, KAYAMKULAM VILLAGE, ALAPPUZHA, PIN - 690572 BY ADVS. BASIL CHANDY VAVACHAN CHANDHANA BHAIJU CHARUTHA BHAIJU BASIL SAJAN FATHIM NAVAS BASIL SCARIA ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2RIYAZ YOOSUF S/O YOOSUF, SAINABA MANZIL, KAYAMKULAM VILLAGE, CHERAVALLY MURI, ALAPPUZHA, PIN - 690502 3SHEMI AGED 32 YEARS S/O YOOSUF, KALLELIL HOUSE, CHERAVALLY MURI, KAYAMKULAM VILLAGE, ALAPPUZHA, PIN - 690502 4SHEFEEK AGED 34 YEARS S/O YOOSUF, SAINABA MANZIL, CHERAVALLY MURI, KAYAMKULAM VILLAGE, ALAPPUZHA, PIN - 690502 5SHANAVAS AGED 39 YEARS S/O ABDUL SALAM, KALLELIL HOUSE, CHERAVALLY MURI, KAYAMKULAM VILLAGE, ALAPPUZHA, PIN - 690502 6SHEBIN AGED 27 YEARS S/O BASHEER, KALLELIL HOUSE, CHERAVALLY MURI, KAYAMKULAM VILLAGE, ALAPPUZHA, PIN - 690502 7AFSAL AGED 28 YEARS S/O HASSAN KUNJU, KALLELIL HOUSE, CHERAVALLY ``` -3- Crl.M.C No. 7308 of 2023 ``` MURI, KAYAMKULAM VILLAGE, ALAPPUZHA, PIN - 690502 8NAVAS AGED 38 YEARS S/O ABDUL SALAM, KAVANATTU THARAYIL HOUSE, CHERAVALLY MURI, KAYAMKULAM VILLAGE, ALAPPUZHA, PIN - 690502 BY ADV GEORGIE SIMON ``` ## **`OTHER PRESENT:`** ``` RENJITH TR PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` -4- Crl.M.C No. 7308 of 2023 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== Crl.M.C No. 7308 of 2023 ============================================================= Dated this the 29[th] day of September, 2023 ## **ORDER** 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 CC No.767 of 2021 of Judicial First Class Magistrate Court, Kayamkulam arising from Crime No.428 of 2019 of Kayamkulam Police Station, Alappuzha. The above case is charge sheeted against the petitioners alleging offences punishable under Sections 143, 147, 148, 452, 324, 326 and 201 read with 149 IPC. 3. The prosecution case is that the accused formed themselves into an unlawful assembly and assaulted the victims and the victims sustained grievous hurt. 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 victims in -5- Crl.M.C No. 7308 of 2023 support of his contention. The counsel appearing for the victims also submitted that the matter is settled and the victims have 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 the petitioner, victims and the Public Prosecutor and has also gone through the records including the affidavits filed by the victims. 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 -6- Crl.M.C No. 7308 of 2023 _**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 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_ -7- Crl.M.C No. 7308 of 2023 _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 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_ -8- Crl.M.C No. 7308 of 2023 _had managed with the complainant to enter into a compromise etc.”_ 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 in CC No.767 of 2021 of Judicial First Class Magistrate Court, Kayamkulam arising from Crime No.428 of 2019 of Kayamkulam Police Station, Alappuzha, as against the petitioners, are quashed. sd/- **P.V.KUNHIKRISHNAN JUDGE** das -9- Crl.M.C No. 7308 of 2023 ## **`APPENDIX OF CRL.MC 7308/2023`** ``` PETITIONER ANNEXURES Annexure 1THE TRUE COPY OF FIR IN CRIME NO. 428/2019 OF KAYAMKULAM POLICE STATION, ALAPPUZHA DATED 09/02/2019 Annexure 2THE CERTIFIED COPY OF FINAL REPORT IN CRIME NO. 428/2019 OF KAYAMKULAM POLICE STATION, KOLLAM Annexure 3THE ORIGINAL OF AFFIDAVIT OF THE 2ND RESPONDENT Annexure 4THE ORIGINAL OF AFFIDAVIT OF THE 3RD RESPONDENT Annexure 5THE ORIGINAL OF AFFIDAVIT OF THE 4TH RESPONDENT Annexure 6THE ORIGINAL OF AFFIDAVIT OF THE 5TH RESPONDENT Annexure 7THE ORIGINAL OF AFFIDAVIT OF THE 6TH RESPONDENT Annexure 8THE ORIGINAL OF AFFIDAVIT OF THE 7TH RESPONDENT Annexure 9THE ORIGINAL OF AFFIDAVIT OF THE 8TH RESPONDENT ```