Vishnu T., Vasishnav K.B., and Abhilash Kumar v. State of Kerala represented by Public Prosecutor, High Court of Kerala; The Station House Officer, Kodumon Police Station; Sreejith G.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV THURSDAY,THE15[TH]DAYOFJUNE2023/25THJYAISHTA,1945 CRL.MCNO.5804OF2022 CRIMENO.413OF2022OFKODUMONPOLICESTATION ``` ## **`- PETITIONERS/ACCUSED NOS.1 TO 3 :`** - **`1 VISHNU T, AGED 24 YEARS S/O THAMPI, VISHNU BHAVAN, IDATHITTA P.O., KODUMON, PATHANAMTHITTA DISTRICT, PIN - 691555`** - **`2 VASISHNAV K.B., AGED 25 YEARS S/O VIJEESH, KOOLIYATTUMETHALA, KODUNGALLUR, THRISSUR, NOW RESIDING AT MIDHUNATHETHIL, IDATHITTA P.O., KODUMON, PATHANAMTHITTA DISTRICT., PIN - 691555`** - **`3 ABHILASH KUMAR, AGED 22 YEARS S/O AJAYAN, MIDHUNATHUVEETIL, IDATHITTA P.O., KODUMON, PATHANAMTHITTA DISTRICT, PIN - 691555`** ``` BYADVS. P.HARIDAS BIJUHARIHARAN SHIJIMOLM.MATHEW P.C.SHIJIN RISHIKESHHARIDAS ``` ## **`RESPONDENTS/STATE & DE FACTO COMPLAINANT :-`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031`** - **`2 THE STATION HOUSE OFFICER KODUMON POLICE STATION, KODUMON, PATHANAMTHITTA DISTRICT., PIN - 691555`** - **`3 SREEJITH G. AGED 35 YEARS S/O. GOPI G, VALIYAMAMVILAYIL, KODUMON P.O., KODUMON, PATHANAMTHITTA, PIN - 691555`** ``` CRL.MCNO.5804OF2022 ``` ``` 2 ``` ## **`MATHEW DEVASSI`** ``` SRI.VIPINNARAYAN,SR.PP ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 15.06.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` ``` CRL.MCNO.5804OF2022 ``` ``` 3 ``` ## **ORDER** The petitioners herein are the accused Nos.1 to 3 in Crime No.413/2022 of Kodunmon Police Station. In the aforesaid case, the accused having committed offence punishable under Sections 323, 326, 342, 324 and 308 r/w Section 34 of the IPC. 2. The prosecution allegation, as borne out from Annexure-1 FIR, is that on 13 June 2023 at about 7:30 PM, due to previous enmity, the accused wrongfully restrained the de facto complainant and the first accused is alleged to have attacked him with a square pipe, causing a fracture to his skull. The specific allegation against petitioners 2 and 3 is that they wrongfully restrained the de facto complainant with a view to enable the first accused to inflict injuries. 3. Sri.P.Haridas, the learned counsel appearing for the petitioners, submits that the parties have resolved the issues and the de facto complainant has filed an Annexure-2 affidavit stating that the incident had not happened as alleged by the prosecution or in the FIR. 4. The learned Public Prosecutor has opposed the submission. It is pointed out that the 1st accused is a person with criminal antecedents, and he is involved in not less than 10 crimes registered against him. It is further ``` CRL.MCNO.5804OF2022 ``` ``` 4 ``` submitted that the proceedings under Section 107 has also been initiated against him. It is further submitted that insofar as the petitioners 2 and 3 is concerned, there are specific allegations in the FIR. Reliance is also placed on the judgment rendered by the Hon’ble Supreme Court in **State of M.P. v. Laxmi Narayan** [(2019) 5 SCC 688], and it is asserted that this Court cannot be justified in quashing the proceedings based on settlement when the accused is a person with criminal antecedents. 5. In response, it is submitted by the learned counsel appearing for the petitioners that the main overt act is alleged against the 1st petitioner alone, and the allegations against petitioners 2 and 3 is that they had wrongfully restrained the victim and nothing more. 6. I have considered the submissions and have gone through the records. 7. In **State of M.P (supra),** a three-judge bench of the Hon’ble Supreme Court has summarised the law as laid down in **Gian Singh v. State of Punjab[1]** , **Narinder Singh v. State of Punjab[2]** , **State of Rajasthan v. Shambhu Kewat[3]** , **State of M.P. v. Deepak[4] , State of** > 1 (2012) 10 SCC 303 > 2 2014 (6) SCC 466 > 3 (2014) 4 SCC 149 > 4 (2014) 10 SCC 285 ``` CRL.MCNO.5804OF2022 ``` ``` 5 ``` **M.P. v. Manish[5]** , **J. Ramesh Kamath v. Mohana Kurup[6]** ; **State of M.P. v. Rajveer Singh[7]** , **Parbatbhai Aahir v. State of Gujarat[8] , State of M.P. v. Kalyan Singh[9] and State of M.P. v. Dhruv Gurjar[10]** . It was laid down as under: 15. Considering the law on the point and the other decisions of this Court on the point referred to hereinabove, it is observed and held as under: 15.1. That the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 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; - 15.2. 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; - 15.3. Similarly, such power is not to be exercised for the offences under the special statutes like the Prevention of > 5 (2015) 8 SCC 307 > 6 2016) 12 SCC 179 > 7 (2016) 12 SCC 471 > 8 (2017) 9 SCC 641 > 9 (2019) 4 SCC 268 > 10 (2019) 5 SCC 570] ``` CRL.MCNO.5804OF2022 ``` ``` 6 ``` 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; 15.4. Offences under Section 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 Section 307 IPC and/or the Arms Act, etc. which have a serious impact on the society cannot be quashed in exercise of powers under Section 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 Section 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 Section 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 Section 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/delicate 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 paras 29.6 and 29.7 of the decision of this Court in Narinder Singh [Narinder Singh v. State of ``` CRL.MCNO.5804OF2022 ``` ``` 7 ``` Punjab, (2014) 6 SCC 466 : (2014) 3 SCC (Cri) 54] should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove; 15.5. While exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offenses, which are private in nature and do not have a serious impact 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. The 1st petitioner is involved in numerous crimes during the past several years. Needless to say, his continuous involvement necessarily has societal ramifications. It will have to be construed as a transgression infringing upon the fabric of society rather than a private dispute. Consequently, it is infeasible to terminate the ongoing criminal proceedings on the basis of a settlement arrived at with the de facto complainant. This Court is also unsure whether the settlement was arrived at with a free or open mind or whether it was obtained by threat or coercion, given the criminal antecedents of the 1st accused and his propensity to involve in crimes disturbing the peace, one after the other. The Apex Court had also observed that while considering the prayer for quashing on the basis of settlement, this ``` CRL.MCNO.5804OF2022 ``` ``` 8 ``` Court is bound to consider the antecedents and conduct of the accused and the manner in which the accused had managed to enter into a compromise. In the facts and circumstances, I am also not inclined to quash the proceedings against accused Nos. 2 and 3 as it would undermine the case of the prosecution in its entirety. Having considered the facts and circumstances and the antecedents of the petitioners, I am not inclined to exercise the powers conferred on this Court under Section 482 of the Code to put a premature end to the prosecution. This petition is accordingly dismissed. Sd/- ## **RAJA VIJAYARAGHAVAN V** **JUDGE** ``` SMA ``` ``` CRL.MCNO.5804OF2022 ``` ``` 9 ``` ## **`APPENDIX OF CRL.MC 5804/2022`** ## **`PETITIONER ANNEXURES :`** ``` Annexure1TRUECITIZENCOPYOFTHEFIRINCRIMENO. 413/2022OFKODUMONPOLICESTATIONDATED 14.06.2022 Annexure2ORIGINALOFTHEAFFIDAVITFILEDBY3RD RESPONDENTINSUPPORTOFTHISCRL.M.C.DATED 10.08.2022 ```