Thomas, Tomy, Devassy, Rita Tomy and Gracy v. State of Kerala and Francis

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 02ND DAY OF AUGUST 2019 / 11TH SRAVANA, 1941 ## Crl.MC.No.1816 of 2019 CC NO.286/2017 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, ANGAMALY CRIME NO.2882/2016 OF ANGAMALI POLICE STATION, ERNAKULAM ## PETITIONERS/ACCUSED: - 1 THOMAS, AGED 58 YEARS, S/O.ITTOOP POULO, KAITHARATH HOUSE, VATHAKKAD, THURAVOOR, ANGAMALY, ERNAKULAM DISTRICT - 683 586. - 2 TOMY, AGED 61 YEARS, S/O.VARGHESE, GOPURATHINGAL HOUSE, KARAYAMPARAMBU, KARUKUTTY, ANGAMALY, ERNAKULAM DISTRICT- 683 576. - 3 DEVASSY, AGED 60 YEARS, S/O.OUSEPH, KULANGARA HOUSE, KARAYAMPARAMBU, KARUKUTTY, ANGAMALY, ERNAKULAM DISTRICT-683 576. - 4 RITA TOMY, AGED 56 YEARS, W/O.TOMY, GOPURATHINGAL HOUSE, KARAYAMPARAMBU, KARUKUTTY, ANGAMALY, ERNAKULAM DISTRICT-683 576. - 5 GRACY, AGED 57 YEARS, W/O.DEVASSY, KULANGARA HOUSE, KARAYAMPARAMBU, KARUKUTTY, ANGAMALY, ERNAKULAM DISTRICT-683 576. BY ADV. SRI.P.K.SAJEEV ## RESPONDENTS/COMPLAINANT & DE FACTO COMPLAINANT: - 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. - 2 FRANCIS, AGED 47 YEARS, S/O.POULO, KAITHARATH HOUSE, VATHAKKAD, THURVOOR, ANGAMLY, ERNAKULAM DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER, POULOSE T.V., AGED 66 YEARS, S/O.VARKEY, THELEPPILLY HOUSE, PULIYANAMKARA, PARAKKADAVU VILLAGE, ERNAKULAM DISTRICT-683 572. BY ADV. SRI.P.RAMACHANDRAN Crl.MC.No.1816 of 2019 2 ## SMT. M.K.PUSHPALATHA, SR. PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02.08.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No.1816 of 2019 3 ## **ORDER** Invoking the powers of this Court under Section 482 of the Code of Criminal Procedure (“the Code” for short), the petitioners have approached this Court seeking to quash the criminal proceedings initiated against them by the 2[nd] respondent, which is now pending on the files of the Judicial First Class Magistrate Court, Angamaly as C.C. No.286 of 2017. In the above proceeding, the petitioners face indictment for offences punishable under Sections 456, 448, 109, 506(1) r/w. Section 34 of the IPC. 2. From the prosecution records, it is discernible that the allegation is that on 2.12.2016 at about 7 pm, the petitioners herein committed lurking house trespass and thereafter criminally intimidated the power of attorney holder of the de facto complainant. 3. Heard Sri.P.K.Sajeev, the learned counsel appearing for the petitioners, Sri.P.Ramachandran, the learned counsel appearing for the 2[nd] respondent, and the learned Public Prosecutor. 4. Sri.P.Ramachandran, the learned counsel appearing for the party respondent, submitted that after much deliberations, the victim has resolved his disputes and differences with the petitioners and he has now decided that the continuance of criminal proceedings is an unwanted exercise. He refers to the Crl.MC.No.1816 of 2019 4 affidavit filed by the victim before this Court and asserts that he has no objection in bringing the prosecution proceedings to a premature termination. 5. Sri. P.K.Sajeev, the learned counsel appearing for the petitioners, urged that in view of the compromise arrived at between the victim and the offender, the possibility of conviction is bleak and the continuation of the criminal proceedings will only inure to put both the parties to oppression and prejudice. Both sides submit that the wrong is basically private in nature and no public interest is involved. 6. The learned Public Prosecutor, on instructions, submitted that the investigating officer has reported that the petitioners are not involved in any other crimes. It is further submitted that the State has no serious objection in quashing the proceedings in view of the settlement arrived at between the parties. 7. I have considered the submissions advanced and have gone through the records. 8. The factors that are to be borne while exercising powers conferred on this Court by Section 482 of the Code in the context of considering a prayer for quashing criminal proceedings on the basis of resolution of disputes between Crl.MC.No.1816 of 2019 5 the offender and the victim have been laid down by the Apex Court in **Gian Singh v. State of Punjab and Anr** . [(2012) 10 SCC 303]; **Jitendra Raghuvanshi and Others v. Babita Raghuvanshi and Another** [(2013) 4 SCC 58]; **Narinder Singh and Others v. State of Punjab and Another** [(2014) 6 SCC 466]; **Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Others v. State of Gujarat and Another** [(2017) 9 SCC 641] and **State of Madhya Pradesh v. Laxmi Narayan and others** , [(2019) 4 SCALE 200]. It was held that the inherent jurisdiction vested in the High Court, as recognized and preserved by Section 482 of the Cr.P.C, is primarily to prevent abuse of the process of court or to secure the ends of justice. The guiding light behind the exercise of inherent power is to do real, complete and substantial justice. It was also held that while examining the prayer for quashing of a non compoundable offence, on the basis of settlement of the dispute between the wrongful doer and the victim, this Court must necessarily consider whether the possibility of conviction is remote and oblique and further as to whether the continuation of the criminal proceedings would lead to oppression and prejudice. The courts were reminded that the antecedents of the accused, possible lack of bona fides, his past conduct, including his earlier abscondance, and as to how he had managed to enter into a compromise with the victim are some of the factors which are to reckoned while exercising this extraordinary power. The Apex Court had also cautioned that this Court, when called upon to exercise the power Crl.MC.No.1816 of 2019 6 under Section 482 of the Cr.P.C to bring the criminal case to an end on the basis of settlement, must steer clear of intervention in heinous or serious offences, including those involving mental depravity, as indeed economic offences affecting the financial and economic well being of the State, such as murder, attempt to murder, extortion, forgery, rape, dacoity, financial or economic frauds, cases under Arms Act, etc. Those offences were held as having a tendency to have a serious impact upon the society and continuation of trial thereof is essential due to overriding element of public interest. It was also held that the mere fact that the police have incorporated a grave offence in the FIR or the final report would not be a deterrent if the records reveal that the ingredients of the offence are not made out 9. In the light of the above principles, I have perused the prosecution records. I have also noted the submission of the learned Public Prosecutor that the statement of the victim has been recorded by the investigating officer and that he has asserted that it is not in his best interest that the prosecution proceedings continue. Having considered the case in hand on the tourchstone of the aforementioned parameters, I am of the view that quashing of proceedings on account of compromise would bring about peace. In a case such as the instant one, even if the prosecution is allowed to continue, it would not serve any purpose as the possibility of conviction is remote and bleak. It can only result in putting the victim and the accused to unwanted oppression and Crl.MC.No.1816 of 2019 7 prejudice. Settlement will augur well for the interest of the community and will enable the parties to live in peace and harmony. In the result, this petition is allowed. Annexure-A2 final report and all further proceedings pursuant thereto against the petitioners now pending as C.C. No.286 of 2017 on the file of the Judicial First Class Magistrate Court, Angamaly, are quashed. **Sd/-** **RAJA VIJAYARAGHAVAN V., JUDGE** IAP Crl.MC.No.1816 of 2019 8 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1** **TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.2882/2016 OF ANGAMALY POLICE STATION, ERNAKULAM DISTRICT.** **ANNEXURE A2 TRUE COPY OF THE FINAL REPORT IN CRIME NO.2882/2016 OF ANGAMALY POLICE STATION, ERNAKULAM DISTRICT.** **ANNEXURE A3 AFFIDAVIT OF THE POWER OF ATTORNEY HOLDER OF THE 2ND RESPONDENT DATED 31/01/2019.** **RESPONDENTS' EXHIBITS:** NIL