Umaerul Farooq C.H and others v. State of Kerala and others

CRL.MC NO. 10166 OF 2023 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 14[TH] DAY OF DECEMBER 2023 / 23RD AGRAHAYANA, 1945 CRL.MC NO. 10166 OF 2023** **CRIME NO.1419/2020 OF Hosdurg Police Station, Kasargod AGAINST THE ORDER/JUDGMENT CC 1187/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,HOSDRUG** ## **PETITIONER/S:** 1 UMAERUL FAROOQ C.H AGED 44 YEARS S/O MUHAMMED HAJI, C.H MANZIL, PUNCHAVI, KANHANGAD VILLAGE, KASARAGOD, PIN - 671315 2 MUTHALIB C.H. AGED 40 YEARS S/O MUHAMMED HAJI, C.H MANZIL, PUNCHAVI, KANHANGAD VILLAGE, KASARAGOD, PIN - 671315 3 ISMAIL C.K. AGED 39 YEARS S/O ABDUL RAHMAN C.K., C.K. HOUSE, KALLOORAVI, KANHANGAD VILLAGE, KASARAGOD, PIN - 671315 4 NOUSHAD C.H AGED 32 YEARS S/O KUNJAHAMMED C.H., BYTHOOL MUHAMMED, PAZHAYA KADAPPURAM, PUNCHAVI, KANHANGAD VILLAGE, KASARAGOD, PIN - 671315 5 SANEESH K. AGED 32 YEARS S/O JANARDHANAN, KUNNUMMAL HOUSE, KANHANGAD SOUTH, KANHANGAD VILLAGE, KASARAGOD, PIN - 671315 BY ADV A.ARUNKUMAR ## **RESPONDENT/S:** CRL.MC NO. 10166 OF 2023 2 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 KAREEM K. AGED 46 YEARS S/O AHAMMED KUNHI, KALLURAVI HOUSE, KALLURAVI, KANHANGAD VILLAGE, HOSDURG TALUK, KASARAGOD, PIN - 671315 3 POYYAKKARA MUHAMMED AGED 69 YEARS SON OF MOOSA, THASNEEM HOUSE, PAZHAYAKADAPPURAM ROAD, KALLURAVI, KANHANGAD VILLAGE, HOSDURG TALUK, KASARAGOD., PIN - 671315 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14.12.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC NO. 10166 OF 2023 3 **P.V.KUNHIKRISHNAN, J --------------------------------------Crl.M.C. No.10166 of 2023 -------------------------------------Dated this the 14[th] day of December, 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 CC No. 1187/2021 on the file of the Judicial First Class Magistrate Court-I, Hosdurg arising from Crime No. 1419/2020 of Hosdurg Police Station. The above case is chargesheeted alleging offences punishable under Sec.143 147, 148, 427 r/w 149 IPC. The offence under Secs. 3 r/w 5 of the Kerala Prevention of Damage to Public Property and Payment of Compensation Act is also alleged. 3. The prosecution case is that on 24.12.2020 at about 8.30 pm, the accused along with 100 other unidentified persons CRL.MC NO. 10166 OF 2023 4 formed themselves into an unlawful assembly armed with dangerous weapons and vandalised the shop causing a loss of Rs.20,000/-. It is submitted that this incident happened in connection with a murder case. Several cases were registered in connection with that murder case and all the cases were settled. The Public Prosecutor submitted that there are some criminal antecedents to the petitioners. But since all the cases are settled to avoid a further incident in this area, I am of the considered opinion that the settlement can be accepted and the case can be quashed. Crl.M.C. Nos. 10083/2023, 10097/2023, 10153/2023 & 10155/2023, 10157/2020 & 10160/2023 are already allowed by this Court quashing the proceedings in connected cases. 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 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. CRL.MC NO. 10166 OF 2023 5 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 petitioners, 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 **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 CRL.MC NO. 10166 OF 2023 6 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 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 CRL.MC NO. 10166 OF 2023 7 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. 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. CRL.MC NO. 10166 OF 2023 8 Therefore, this Criminal Miscellaneous case is allowed. All further proceedings against the petitioners in CC No. 1187/2021 on the file of the Judicial First Class Magistrate Court-I, Hosdurg arising from Crime No. 1419/2020 of Hosdurg Police Station are quashed. **Sd/P.V.KUNHIKRISHNAN JUDGE** SKS CRL.MC NO. 10166 OF 2023 9 ## **APPENDIX OF CRL.MC 10166/2023** PETITIONER ANNEXURES Annexure AI A TRUE COPY OF THE F.I.R IN CRIME NO.1419 OF 2020 OF HOSDURG POLICE STATION Annexure AII CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 1419 OF 2020 OF HOSDURG POLICE STATION Annexure AIII THE AFFIDAVIT SWORN TO BY THE 2ND RESPONDENT 25-06-2023 Annexure AIV THE AFFIDAVIT SWORN TO BY THE 3RD RESPONDENT 25-06-2023