Thomas Varghese @ Babu vs State Of Kerala
2023 Latest Caselaw 13077 Ker

Kerala High Court

Thomas Varghese @ Babu vs State Of Kerala on 15 December, 2023

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
             THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
   FRIDAY, THE 15TH DAY OF DECEMBER 2023 / 24TH AGRAHAYANA, 1945
                       CRL.MC NO. 10217 OF 2023
        CRIME NO.419/2018 OF Edathua Police Station, Alappuzha
 AGAINST THE ORDER/JUDGMENT CC 481/2019 OF JUDICIAL MAGISTRATE OF
                       FIRST CLASS ,AMBALAPUZHA
PETITIONER(S)/ACCUSED:

            THOMAS VARGHESE @ BABU
            AGED 68 YEARS
            S/O CHANDY VARGHESE, KUNNEL VEEDU, EDATHWA VILLAGE,
            ALAPPUZHA, PIN - 689573
            BY ADV GOVIND CHANDRABHANU


RESPONDENT(S)/STATE/DEFACTO COMPLAINANT:

    1       STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
            PIN - 682031
    2       SOJAN FRANCIS
            AGED 56 YEARS
            S/O JOSEPH THOMAS, VANNIYAMPURAKAL THURUTHEL VEEDU,
            EDATHWA VILLAGE, ALAPPUZHA, PIN - 689573
            BY ADV. MANU HARSHAKUMAR
            SMT.SREEJA V., PP



     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
15.12.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.M.C.No.10217 of 2023


                                 2


                  P.V.KUNHIKRISHNAN, J.
                 ------------------------------
                 Crl.M.C.No.10217 of 2023
         ----------------------------------------------
        Dated this the 15th 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. Petitioner is the accused in C.C.No.481/2019 on the

file of the Judicial First Class Magistrate Court,

Ambalapuzha arising from Crime No.419/2018 of Edathua

Police Station, Alappuzha. The above case is charge-

sheeted against the petitioner alleging offences punishable

under Sections 294(b), 323 and 326 IPC.

3. The prosecution case is that the accused assaulted

the victim using filthy languages and the victim sustained

grievous hurt.

4. The learned counsel for the petitioner 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

petitioner, 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 petitioner in

C.C.No.481/2019 on the file of the Judicial First Class

Magistrate Court, Ambalapuzha arising from Crime

No.419/2018 of Edathua Police Station, Alappuzha are

quashed.

Sd/-

                                         P.V.KUNHIKRISHNAN
DM                                             JUDGE





                  APPENDIX OF CRL.MC 10217/2023

PETITIONER ANNEXURES
ANNEXURE I            TRUE COPY FIR AND FIS IN CRIME NO
                      419/2018 OF EDATHWA POLICE STATION
                      DATED 25.03.2018
ANNEXURE II           THE CERTIFIED COPY OF FINAL REPORT IN

CC 481//2019 OF JFCM COURT AMBALAPPUZHA DATED NIL ANNEXURE3 AFFIDAVIT SWORN BY THE 2ND RESPONDENT DATED 05.07.2023

RESPONDENTS EXHIBITS : NIL //TRUE COPY// PA TO JUDGE