Kerala High Court

Shan Johny vs State Of Kerala on 25 August, 2023

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
    THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
 FRIDAY, THE 25TH DAY OF AUGUST 2023 / 3RD BHADRA, 1945

                 CRL.MC NO. 3713 OF 2023
   AGAINST THE ORDER/JUDGMENT CC 1275/2020 OF JUDICIAL
  MAGISTRATE OF FIRST CLASS - IX, ERNAKULAM (TEMPORARY)

PETITIONER/S:

    1     SHAN JOHNY
          AGED 32 YEARS
          S/O. JOHNY,
          KUMBANAYIL HOUSE, VAYALAR ROAD,
          SOUTH CHITTOOR, CHITTOOR P.O.,
          ERNAKULAM,, PIN - 682027

    2     ANTONY
          AGED 37 YEARS
          S/O. FRANCIS,
          PALIYATHARA HOUSE, SOUTH CHITTOOR,
          CHITTOOR P.O., ERNAKULAM, PIN - 682027

    3     SIRIL ANTONY
          AGED 35 YEARS
          S/O. AUGUSTINE
          CHOORAYIL HOUSE, NEAR ST. GEORGE CHAPPEL,
          SOUTH CHITTOOR, CHITTOOR P.O.,
          ERNAKULAM, PIN - 682027

    4     JOSE CLINTON
          AGED 28 YEARS
          S/O. ANTONY,
          THANNIKOTTU HOUSE, SOUTH CHITTOOR,
          CHITTOOR P.O., ERNAKULAM, PIN - 682027

    5     ASHIQ
          AGED 24 YEARS
          S/O. APPU,
          RAMAKKODATH HOUSE, SOUTH CHITTOOR, CHITTOOR P.O.,
          ERNAKULAM, PIN: 682 027, PIN - 682027

    6     JISHNU SURESH
          AGED 26 YEARS
          S/O. SURESH,
          THOOVADAM HOUSE, RAEEV NAGAR, SOUTH CHITTOOR,
          CHITTOOR P.O., ERNAKULAM, PIN: 682 027.
 CRL.MC NO. 3713 OF 2023

                             2




    7     SANGEETH AUGUSTINE
          AGED 26 YEARS
          S/O. AUGUSTINE,
          VYMELIL HOUSE, POURASAMITHI ROAD,
          SOUTH CHITTOOR, CHITTOOR P.O.,
          ERNAKULAM, PIN - 682027

          BY ADVS.
          K.R.VINOD
          M.S.LETHA
          NABIL KHADER
          CHITHRA C.EDADAN

RESPONDENT/S:

    1     STATE OF KERALA
          REPRESENTED BY PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA, PIN - 682031

    2     STEPHIN JOSE
          S/O. JOSY,
          EZHUTHAIKKAL HOUSE, ODONAL ROAD,
          SOUTH CHITTOOR, CHITTOOR P.O.,
          ERNAKULAM,, PIN - 682027

    3     ROMON
          S/O. AUGUSTINE ANTONY,
          AVITTAMPILLY HOUSE, NEAR HMC TELEPHONES,
          SOUTH CHITTOOR, CHITTOOR P.O.,
          ERNAKULAM,, PIN - 682027

          SRI. VIPIN NARAYAN, SR. PP


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 25.08.2023, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
 CRL.MC NO. 3713 OF 2023

                                   3



                                ORDER

This petition is filed invoking the powers of this Court under

Section 482 of the Code of Criminal Procedure, 1973 ("the Code" for

the sake of brevity).

2. The petitioners herein are accused Nos. 1 to 7 in C. C. No.

1275 of 2020 on the file of the Judicial Magistrate of First Class-IX,

Ernakulam, registered for the offences punishable under Sections 141,

143, 148, 341,294(b), 323, 324 506(i), 452 r/w Section 149 of the IPC.

3. The prosecution allegation, as borne out from the records,

are:

On 19.01.2020 at about 5.30 p.m., the petitioners, formed

themselves into an unlawful assembly, and in prosecution of their

common object, wrongfully restrained party respondents and assaulted

them with weapons causing injuries.

4. The learned counsel for the petitioners submits that the

parties have settled their dispute and do not wish to pursue the

prosecution proceedings. He relies on the affidavits filed by the party

respondents in support of their contentions. Counsel argues that if the

proceedings are terminated, with the recording of the amicable

settlement, the parties can move forward in an atmosphere of peace CRL.MC NO. 3713 OF 2023

and mutual respect.

5. The learned Public Prosecutor, on instructions, has

expressed reservations about quashing the proceedings solely on the

basis of the settlement. He argues that the facts and circumstances

may not warrant the exercise of the court's inherent jurisdiction under

Section 482 of the Code of Criminal Procedure. However, it is fairly

submitted that there have been no other crimes of serious nature

registered against the petitioners to date. It is further submitted that

the statement of the party respondents have been recorded, and they

have unequivocally stated that they do not have any lasting grievances.

6. I have considered the submissions and have gone through

the records.

7. In State of M.P. v. Laxmi Narayan,1, a three-judge

bench of the Hon'ble Supreme Court has summarized the law as laid

down in Gian Singh v. State of Punjab2, Narinder Singh v. State

of Punjab3 and in subsequent cases. 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

(2019) 5 SCC 688

(2012) 10 SCC 303

2014 (6) SCC 466 CRL.MC NO. 3713 OF 2023

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 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 CRL.MC NO. 3713 OF 2023

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 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. Having carefully analyzed the prayer sought in the light of

the principles laid down above and also the nature of the allegations, CRL.MC NO. 3713 OF 2023

the gravity of the offence, the severity of injuries inflicted, antecedents

of the accused, and the amicable relationship that now exists between

the parties, I am of the considered opinion that quashing the

proceedings on the basis of the settlement will not have any adverse

impact on society. In fact, it would only serve to bring about peace and

secure the ends of justice. Additionally, persisting with the prosecution

would be a waste of time, as the prospects of conviction are bleak. In

light of all of the relevant circumstances, I am of the considered view

that this Court would be well justified in invoking its extraordinary

powers under Section 482 of the Code to quash the proceedings.