Kerala High Court
Sudheesh Babu vs State Of Kerala on 27 January, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 27TH DAY OF JANUARY 2023 / 7TH MAGHA, 1944
CRL.MC NO. 5431 OF 2022
THIRURANGADI POLICE STATION, MALAPPURAM
CRIME NO.280/2022
PETITIONER/ACCUSED:
SUDHEESH BABU, AGED 37 YEARS
S/O. PADMANABHAN, PALAMADATHIL CHALIL,
CHEMBAZHIMADU HOUSE, OLAKKARA. P.O.,
MALAPPURAM, PIN - 676306.
BY ADVS.
C.P.UDAYABHANU
NAVANEETH.N.NATH
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, PIN - 682031.
2 VINEESH
AGED 28 YEARS
S/O. UNNI, CHEMBAZHIMADU HOUSE,
PERUVALLUR, OLAKKARA. P.O.,
MALAPPURAM, PIN - 676306, PIN - 676306.
BY ADVS.
PUBLIC PROSECUTOR SRI G.SUDHEER
FOR R2 RASSAL JANARDHANAN A.
CP Udayabhanu
A.N.SANTHOSH(S-190)
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
13.01.2023 ALONG WITH CRMC.NO.6844/2022, THE COURT ON
27.01.2023 THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.Nos.5431/2022 &
6844/2022 2
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 27TH DAY OF JANUARY 2023 / 7TH MAGHA, 1944
CRL.MC NO. 6844 OF 2022
AGAINST THE ORDER IN CRMP 1128/2022 OF SPECIAL COURT
(ATROCITIES AGAINST SC/ST), MANJERI
THIRURNAGADI POLICE STATION
CRIME NO.280/2022
PETITIONER/ACCUSED:
SUDHEESH BABU, AGED 37 YEARS
S/O. PADMANABHAN, PALAMADATHIL CHALIL,
CHEMBAZHIMADU HOUSE,
OLAKKARA. P.O., MALAPPURAM, PIN - 676306.
BY ADVS.
C.P.UDAYABHANU
NAVANEETH.N.NATH
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031.
BY ADV PUBLIC PROSECUTOR SRI.SANAL P.RAJ
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
13.01.2023 ALONG WITH CRMC.NO.5431/2022, THE COURT ON
27.01.2023 THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.Nos.5431/2022 &
6844/2022 3
"C.R"
A. BADHARUDEEN, J.
================================
Crl.M.C Nos.5431 of 2022
and
6844 of 2022
================================
Dated this the 27th day of January, 2023
ORDER
The petitioner in the above Crl.M.Cs is the sole accused
in Crime No.280 of 2022 of Thirurangadi Police Station, where he
alleged to have committed offences under Sections 324 and
307 of Indian Penal Code (hereinafter referred to as `IPC' for
convenience) as well as under Sections 3(1) (s), 3(2) (va) of
the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities)
Act, 2015 (hereinafter referred to as the `SC/ST Act' for short).
Crl.M.C No.684 of 2022 has been filed under Section 482
Crl.M.C.Nos.5431/2022 &
of the Code of Criminal Procedure (hereinafter referred to as
`Cr.P.C' for short) to quash Annexure 2 order dated 20.09.2022
rejecting release of car bearing Registration No.KL 65 P 0790
involved in the above crime.
2. Crl.M.C.No.5431 of 2022 has been filed under Section
482 of Cr.P.C and the prayer therein is to quash Annexure 1 FIR (in
crime No.280/2022 of Thirurangadi Police Station) and all further
proceedings initiated by the 2nd respondent acting on the affidavit,
filed as Annexure 4 in this case.
3. Heard the learned counsel for the petitioner as well as
the learned Public Prosecutor. Advocate Rassal Janardhanan
appeared for the 2nd respondent.
4. It is argued by the learned counsel for the petitioner that
the matter has been settled in between the defacto complainant and
the accused. In order to substantiate the settlement, the learned
counsel placed affidavit produced as Annexure 4, sworn by
Crl.M.C.Nos.5431/2022 &
Vineesh, S/o.Unni, the defacto complainant/injured in this case. In
the affidavit it has been stated that except the act of assault by
accused, the other averments recorded by the police are not
completely true. Further, the defacto complainant did not hear
calling his caste name, as alleged in his statement. It has been
submitted that the defacto complainant had no objection in
accepting the affidavit for the purpose of quashing the proceedings.
5. The relevant paragraphs in the affidavit are as under:
"4. I respectfully swear before this Hon'ble Court that
except the act of assault by the accused the other averments
recorded by the police are not completely true. In fact I have not
heard the accused calling me by caste name. My friends who
were present nearby the scene of occurrence told me that he had
uttered some abusive words which he presumes as my caste name.
Because of the pressure exerted on me by my friends and relatives
I was constrained to give a statement against the accused before
police.
5. Even though I have sustained two injuries on both
sides of my body, none of the injury was serious. After about four
days I was discharged from the hospital. I have recovered from
Crl.M.C.Nos.5431/2022 &
the injury thereafter and is now attending my regular job.
9. The accused is known to me from the glimmering of
my senses. Because of the incident the local respectable persons
and upon their intervention we both participated in the meeting
and decided to settle the issues that lead to the incident. I have no
grievance against the accused. I am not intending to prosecute
the above case further."
6. Cursory glimpse on the recitals in the affidavit also
would suggest that the defacto complainant reiterates the assault,
consequential injuries and his treatment for the same as inpatient.
The defacto complainant did not state those allegations as false. As
far as the seriousness of the injury, the treatment records and
opinion of the Doctor/Doctors are decisive.
7. Accordingly, the learned counsel for the petitioner
pressed for quashment of Annexure 1 F.I.R and further proceedings
as also release of the vehicle involved in the above crime on the
submission that the learned Special Judge went wrong in
dismissing the application on the ground that the petitioner did not
Crl.M.C.Nos.5431/2022 &
co-operate with the investigation and he had been evading from
arrest. He also submitted that initially offence under Section 307
was not there and the same said offence incorporated subsequently.
8. Per contra, the learned Public Prosecutor would submit
that though the defacto complainant/the 2 nd respondent herein filed
affidavit not objecting quashment of the proceedings, for the said
reason the proceedings could not be quashed since serious offences
under Section 307 of I.P.C as well as under Section 3(2)(va) of the
SC/ST Act also were alleged.
9. In order to substantiate quashment of the F.I.R and
further proceedings, the learned counsel for the petitioner placed
decision of the Apex Court reported in [2019 (2) KHC 190 : AIR
2019 SC 1296 : 2019 (2) KLJ 226 : 2019 (5) SCC 688], State of
Madhya Pradesh v. Laxmi Narayan & Ors. In the said decision,
the Apex Court laid down the principles regarding the matters to be
considered while compounding non compoundable offences. The
Crl.M.C.Nos.5431/2022 &
principles are as under:
"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.
Crl.M.C.Nos.5431/2022 &
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 therefore 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
Crl.M.C.Nos.5431/2022 &
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."
10. Thus the law emerges is that offence under Section 307
of IPC would fall under the category of heinous and serious
offences and, therefore, the same is to be treated as crime against
the society and not against the individual alone. 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 the powers under S.482 of the Cr.P.C, on
the ground that the parties have resolved their entire dispute
Crl.M.C.Nos.5431/2022 &
amongst themselves.
11. At the same time, the Apex Court carved out exceptions
to the said proposition holding that when FIR was already filed
alleging commission of offence under Section 307 of IPC, such
proceedings can be quashed in view of settlement of dispute
between the parties, only after the evidence is collected after
investigation and the charge sheet is filed/charge framed and/or
during trial and such an exercise is not permissible when the matter
is still under investigation. Similarly, it was held that 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 proving 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. Medical report in respect of injuries suffered by
Crl.M.C.Nos.5431/2022 &
the victim can generally be the guiding factor. On the basis of this
prima facie analysis, the High Court can examine as to whether
there is a strong possibility of conviction or the chances of
conviction are remote and bleak.
12. In the former case it can refuse to accept the settlement
and quash the criminal proceedings whereas in the latter case it
would be permissible for the High Court to accept the plea
compounding the offence based on complete settlement between
the parties. At this stage, the Court can also be swayed by the fact
that the settlement between the parties is going to result in harmony
between them which may improve their future relationship.
13. In the case on hand, the case is under investigation and
so far no final report filed. Therefore, the quashment of the F.I.R
on the submission that the parties resolved their dispute could not
be considered at the crime stage, since such an exercise in cases
involving offence under Section 307 of IPC is not permissible,
Crl.M.C.Nos.5431/2022 &
before filing final report. It is relevant to note that in this matter
very serious offences are alleged to be committed by the accused.
On reading the case diary, the specific allegation is that at 8 p.m on
27.04.2022, out of enmity, the petitioner herein, who was
proceeding in a car caused hindrance to the defacto complainant on
the road and consequently he called his caste name and threatened
him that he would face dire consequences. Thereafter at 9 p.m on
28.04.2022, the petitioner stabbed the defacto complainant with a
knife and inflicted serious injury. This is the base on which,
initially crime was registered alleging commission of offence under
Section 324 of I.P.C as well as under Sections 3(1)(s), 3(2)(va) of
the SC/ST Act against the accused, and without much delay,
offence under Section 307 of I.P.C also was incorporated. The
copies of the medical records showing the treatment of the defacto
complainant at Medical Hospital, Kozhikode as inpatient, are part
of the case diary. In the third page of the treatment records
Crl.M.C.Nos.5431/2022 &
(referred as `case record') it has been stated that the physical
condition of the defacto complainant during the stage of admission
at the hospital was very serious and the said fact was duly informed
to the relatives. It is relevant to note that the following injuries
were also noted when he was taken to casualty and subsequent to
thereafter.
"1) Stapled wound 2 cm over ® upper abdomen (Hypochondria)
2) Stapled wound 3 cm over posterior aspect ® hypochondria
3) Incised wound 4 cm over lateral aspect (L) upper abdomen."
14. The defacto complainant underwent treatment for
penetrating injury on the chest due to the stab injury caused by the
accused, which is fatal, even as per the statement recorded as that
of the doctor, who treated him. Therefore, it appears that even
though as per the ratio in State of Madhya Pradesh v. Laxmi
Narayan & Ors. (supra), quashment of crime involving offence
under Section 307 of IPC is permissible for a court, after
investigation and filing of final report, then also, if the prosecution
Crl.M.C.Nos.5431/2022 &
is one which would show commission of heinous and serious
offences and has a serious impact on society prima facie, with
reference to the nature of injuries, it could not be held that the same
is a fit case for quashment.
15. It is relevant to refer further that the petitioner herein
had approached the Special Court seeking anticipatory bail and the
same was dismissed by the Special Court. Against which, the
petitioner had filed Crl.Appeal No.691/2022 before this Court and
as per judgment dated 12.10.2022 this Court dismissed the
application after discussing the nature and seriousness of the
offences and also highlighting the above fact. It is thereafter, the
present petition to quash the complaint acting on the affidavit of the
defacto complainant has been filed, during the progress of
investigation, by the petitioner/accused without conceding to the
domain of the investigating officer, so as to co-operate with the
investigation. In fact, such a petition cannot be entertained by this
Crl.M.C.Nos.5431/2022 &
Court in view of the decision reported in State of Madhya Pradesh
v. Laxmi Narayan & Ors. (supra). Further, the argument advanced
by the learned counsel for the petitioner that initially offence under
Section 307 was not there and the said offence was incorporated
subsequently also is of least significance, in a case, commission of
offence under Section 307 of IPC could be gathered from the
prosecution records inclusive of the medical records.
16. Therefore, Crl.M.C No.5431 of 2022 is liable to be
dismissed and is accordingly dismissed.
17. Accordingly, the petitioner is directed to surrender
before the Investigating Officer in this crime to facilitate the proper
investigation of the crime, within three days from today, failing
which the investigating officer shall arrest the accused and go with
investigation of the case without fail.
As far as Crl.M.C.No.6844 of 2022 for release of the vehicle
(Polo car bearing Registration No.KL 65 P 0790) is concerned, I
Crl.M.C.Nos.5431/2022 &
am inclined to set aside Annexure 2 order and remand the matter
back to the Special Court to consider the same afresh within ten
days of surrender or production of the petitioner (in the event of his
arrest), in accordance with law.
Sd/-
(A. BADHARUDEEN, JUDGE)
rtr/
Crl.M.C.Nos.5431/2022 &
APPENDIX OF CRL.MC 5431/2022
PETITIONER'S ANNEXURES
Annexure1 A CERTIFIED COPY OF THE FIR IN CRIME NO.
280/2022 OF THIRURANGADI POLICE STATION,
MALAPPURAM DISTRICT PENDING ON THE FILE
OF SPECIAL COURT FOR SC/ST (POA) CASES,
MANJERI.
Annexure2 STATEMENT DATED 01.05.2022.
Annexure3 THE REPORT DATED 06.06.2022 SUBMITTED BY
R1.
Annexure4 THE AFFIDAVIT DATED 01.08.2022 SWORN BY
R2/VICTIM.
Crl.M.C.Nos.5431/2022 &
APPENDIX OF CRL.MC 6844/2022
PETITIONER'S ANNEXURES
Annexure 1 COPY OF THE FIR IN CRIME NO. 280/2022 OF
THIRURANGADI POLICE STATION, MALAPPURAM
DISTRICT PENDING ON THE FILE OF SPECIAL
COURT FOR SC/ST (POA) CASES, MANJERI.
Annexure 2 ORDER IN CRL. M.P. NO. 1128/2022 DATED
20.09.2022 PASSED BY THE HON'BLE SPECIAL
COURT FOR SC/ST (POA) ACT & NDPS CASES,
MANJERI.
