Kerala High Court

Muthalib C.H vs State Of Kerala on 14 December, 2023

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

CRL.MC NO. 10155 OF 2023             1



                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
              THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 14TH DAY OF DECEMBER 2023 / 23RD AGRAHAYANA, 1945
                           CRL.MC NO. 10155 OF 2023
      CRIME NO.1422/2020 OF Hosdurg Police Station, Kasargod
  AGAINST THE ORDER/JUDGMENT CC 26/2022 OF JUDICIAL MAGISTRATE
                           OF FIRST CLASS -I,HOSDRUG
PETITIONER/S:

      1        MUTHALIB C.H
               AGED 40 YEARS
               S/O MUHAMMED HAJI, C.H. HOUSE, KALLURAVI, KANHANGAD
               VILLAGE, KASARAGOD, PIN - 671315

      2        MASOOD K.T
               AGED 32 YEARS
               /O ABDUL RAHMAN, KALLURAVI, KANHANGAD SOUTH,
               KANHANGAD VILLAGE, KASARAGOD-, PIN - 671315

      3        NOUSHAD C.H
               AGED 32 YEARS
               S/O KUNHAMU C.H., VYTHIL MUHAMMED (H), NEAR PUNCHAVI
               LP SCHOOL, PAZHAYA KADAPPURAM, KANHANGAD SOUTH,
               KANHANGAD VILLAGE, KASARAGOD, PIN - 671315

      4        ASHRAF M. @ CHIRIKKUDUKKA ASHRAF
               AGED 37 YEARS
               S/O MOIDU HAJI, KALLURAVI, KANHANGAD SOUTH,
               KANHANGAD VILLAGE, KASARAGOD- 671315, PIN - 671315

      5        RANEESH K
               AGED 31 YEARS
               S/O KUNHIKRISHNAN V.M., KALLURAVI (H), KANHANGAD
               SOUTH, KANHANGAD VILLAGE, KASARAGOD, PIN - 671315

      6        NIKHIL K.K.
               AGED 21 YEARS
               S/O KARUNAN T., KALAYIKKUNNUMMEL (H), KALLURAVI,
               KANHANGAD SOUTH, KANHANGAD VILLAGE, KASARAGOD, PIN -
 CRL.MC NO. 10155 OF 2023            2


               671315

      7        ISMAIL C.K
               AGED 39 YEARS
               S/O ABDUL RAHMAN, C.K. HOUSE, KALLURAVI, KANHANGAD
               SOUTH, KANHANGAD VILLAGE, KASARAGOD-, PIN - 671315

               BY ADV A.ARUNKUMAR



RESPONDENT/S:

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

      2        AFSAL K.P
               AGED 34 YEARS
               S/O AYISHA, PUZHAKKARA HOUSE, KALLURAVI, KANHANGAD
               VILLAGE, KASARAGOD, PIN - 671315

               SMT.SREEJA V.PP, SRI.VIPIN T JOSE, RESPONDENT


       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. 10155 OF 2023         3


                       P.V.KUNHIKRISHNAN, J
                   ---------------------------------------
                     Crl.M.C. No.10155 of 2023
                    --------------------------------------
            Dated this the 14th day of December, 2023


                              ORDER

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. 26/2022

on the file of the Judicial First Class Magistrate Court-I,

Hosdurg arising from Crime No. 1422/2020 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

8.00 pm, the accused along with 20 other unidentified persons

formed themselves into an unlawful assembly armed with

dangerous weapons and vandalised the Chicken centre run by

the defacto complainant 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 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 victim in support of his contention. The

counsel appearing for the victim also submitted that the matter

is settled and the victim has no objection in quashing the

prosecution.

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, victim and the Public Prosecutor and has also gone

through the records including the affidavit filed by the victim.

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 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 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.

Therefore, this Criminal Miscellaneous case is allowed.

All further proceedings against the petitioners in CC No.

26/2022 on the file of the Judicial First Class Magistrate Court-

I, Hosdurg arising from Crime No. 1422/2020 of Hosdurg

Police Station are quashed.

Sd/-