Valiyakath Basheer and others v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 1704 of 2002(C) ------------------------------CRA.194/1997 of ADDL. SESSIONS COURT (ADHOC-I), THALASSERY CC.444/1992 of JUDL. MAGISTRATE OF FIRST CLASS COURT, THALASSERY .................... REVN. PETITIONER(S): APPELLANTS 1 AND 3 TO 5 - ACCUSED 1 & 3 TO 5: ------------------------------------------------------------------ 1. VALIYAKATH BASHEER, S/O. MOHAMMED, AGED 39 YEARS, VALIYAKATH HOUSE, THIRUVANGAD AMSOM, CHALIL, THALASSERY TALUK. 2. V.HANEEF, S/O. MOHAMMED, AGED 40 YEARS, -DO- -DO-. 3. V.SATHAR, S/O. MOHAMMED, AGED 41 YEARS, -DO- -DO-. 4. V.HAMZA KOYA, S/O. MAMMED, AGED 42 YEARS, NAYANAR COLONY, THIRUVANGAD, CHALIL, THALASSERY TALUK. BY ADV. SMT.VIDHYA. A.C RESPONDENT(S): RESPONDENT-COMPLAINANT: -------------------------------------- STATE OF KERALA (SHO THALASSERY POLICE STATION), REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.C.P.KUNJHIKANNAN BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** **-------------------------------------Crl.R.P.No.1704 of 2002 & Crl.M.P.Nos.1745 & 1746 of 2003 in Crl.R.P.No.1704 of 2002** **-------------------------------------Dated this the 1[st] day of December, 2008.** ## **ORDER** Heard counsel for petitioners and the Public Prosecutor. 2. Following points arise for consideration:- I. Whether permission could be granted to compound the offences found against the revision petitioners? ## II. Regarding sentence. ## 3. **Point No.I.** Revision petitioners along with the second accused faced trial in the court of learned Judicial First Class Magistrate, Thalassery in C.C.No.444 of 1992 for offences punishable under Sections 143, 147, 148, 323, 341 and 324 read with Section 149 of the Indian Penal Code (for short, “the Code”). They were found guilty, convicted and sentenced to undergo imprisonment for various periods. **Crl.R.P.No.1704/2002** 2 They challenged the conviction and sentence in Crl.Appeal No.194 of 1997. It is submitted by the learned counsel for revision petitioners that while the appeal was pending, second accused died and the charge against him abated. Learned Additional Sessions Judge (Adhoc-I), Thalassery heard the appeal and dismissed the same confirming the conviction and sentence of revision petitioners (A1 and A3 to A5). Hence this revision. 4. Revision petitioners and PW1, the defacto complainant filed Crl.M.P.No.1746 of 2003 reporting settlement of all disputes between them and Crl.M.P.No.1745 of 2003 seeking permission to compound the offences. So far as the offences punishable under Sections 143, 147 and 148 of the Code are concerned, it is stated in the petition that revision petitioners are not separately sentenced for the said offences. Learned counsel for revision petitioners contended that since the matter has already been settled between the parties and it is essentially a private dispute between the revision petitioners and the defacto complainant (PW1), this Court is well within its power to permit composition of the substantive offences and also, invoking the power under Section 482 of the Code, quash the finding against the revision petitioners for the offences under Sections 143, 147 and 148 of the Code. Learned counsel relied on the decision of the Hon'ble Supreme Court in **Mohd. Abdul Sufan Laskar v. State of Assam [(2008) 9 SCC 333]** . There, the substantive offence **Crl.R.P.No.1704/2002** 3 found against the accused was under Sections 147 and 324 of the Code. Question arose whether the offence under Section 324 is compoundable in view of the amendment Act, 2005. It was held that though the amendment pertaining to the compoundability of the offence has taken effect, compoundability has to be decided as on the date of commission of the offence and permission was granted. 5. Revision petitioners are found guilty and convicted for offences punishable under Sections 341, 323 and 324 as also under Section 143, 147 and 148 of the Code. Offences punishable under Section 341 and 323 are compoundable. Offence under Section 324 was compoundable with the permission of the court as on the date of incident. 6. Then the next question is whether offences punishable under Sections 143, 147 and 148 of the Code are compoundable. These offences are separate and distinct offences and hence, question whether the said offences are compoundable must be decided with reference to the provisions of Section 320 of Code of Criminal Procedure. Considerably the offences punishable under Sections 143, 147 and 148 are not made compoundable under Section 320 of the Code of Criminal Procedure (for short, 'the Cr.P.C.). Offences punishable under Sections 143, 147 and 148 are not made compoundable by **Crl.R.P.No.1704/2002** 4 Section 320 of the Cr.P.C. In **State of U.P. v. Janni and others (AIR 1970 All. 235** ) it was held that offence under Section 147 of the Code is not compoundable as it is an offence against public tranquility and is of aggravated nature. Hon'ble Supreme Court in **Ramesh Chandra J.Thakur v. A.P.Jhaveri (AIR 1973 SC 84)** held that an indivisible permission to withdraw a compoundable offence and a non-compoundable offence is invalid in its entirety. Hon’ble Supreme Court has held in **Manoj Sharma v. State (2008 (4) KLT 417)** that provisions of Section 482 of the Cr.P.C. or Article 226 of the Constitution can be used by the High Court to quash the charge even in respect of non-compoundable offences provided, it is a private dispute between the parties. Therefore, in considering whether the request of the learned counsel to quash the charge and consequent conviction of the revision petitioners under Sections 143, 147 and 148 of the Code is to be entertained, it is necessary to go into the facts and circumstances of the case. 7. On 6.2.1992 while revision petitioner No.1 and defacto complainant (PW1) who were employees of the fish chappa belonging to one Moidu Haji were engaged in unloading fish packets from a lorry, there was wordy altercation between revision petitioner No.1 and defacto complainant for revision petitioner No.1 allegedly not doing work properly, revision petitioner No.1 went out of the chappa, collected revision petitioners 2 to 4 and the second accused, came **Crl.R.P.No.1704/2002** 5 back to the chappa, wrongfully restrained and voluntarily caused hurt to the defacto complainant, stabbing with knife, hitting with a bottle and assaulting with hands. According to the revision petitioners, defacto complainant attacked revision petitioner No.1, the latter was hospitalized and a case was registered against the defacto complainant also. 8. Though, it is true that Sections 143, 147 and 148 of the Code are also invoked and which are offences against public tranquility, evidence on record would show that this was essentially a dispute between revision petitioner No.1 and defacto complainant and that too, inside the fish chappa where the incident occurred. I am inclined to think that public tranquility as such was not affected. So far as offences punishable under Sections 341, 323 and 324 are concerned, parties have settled the dispute and have come to terms. Going through Crl.M.P.Nos.1745 of 2003 and 1746 of 2003, I find no reason to think that settlement is not voluntarily. Therefore, to the extent it concerned offences punishable under Section 323 and 341 of the Code, that petition is only to be allowed, and I do so. 9. In the circumstances I have stated, I am inclined to invoke the power of this Court under Section 482 of the Code of Criminal Procedure. Accordingly, conviction of the revision petitioners and the charge against them under Sections 143, 147 and 148 of the Code can be quashed. Resultantly, revision petition is allowed in the following lines:- **Crl.R.P.No.1704/2002** 6 i. Crl.M.P.Nos.1745 of 2003 and 1746 of 2003 are allowed and the composition of offences punishable under Sections 341, 323 and 324 of the Code is accepted. That composition shall have the effect of acquittal of the revision petitioners of the said offences under Section 320(8) of the Cr.P.C. ii. Conviction of the revision petitioners and charge against them under Sections 143, 147 and 148 of the Code are hereby quashed and the revision petitioners are acquitted of those charges. iii. Bail bonds are cancelled. Crl.M.P.No.9102 of 2002 will stand dismissed. **THOMAS P.JOSEPH, JUDGE.** **cks** **Crl.R.P.No.1704/2002** 7 **Thomas P.Joseph, J.** **Crl.R.P.No.1704 of 2002** **ORDER** **1[st] December, 2008**