Noushad vs State Of Kerala
2023 Latest Caselaw 6651 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                        PRESENT
    THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 20TH DAY OF JUNE 2023 / 30TH JYAISHTA, 1945

                 CRL.MC NO. 4385 OF 2023
  AGAINST THE ORDER/JUDGMENT IN CC 564/2021 OF JUDICIAL
            MAGISTRATE OF FIRST CLASS ,ALATHUR

PETITIONER/S:

    1     NOUSHAD
          AGED 30 YEARS
          S/O ALIYAR,
          ODUNGOTTU PARAMABU VEEDU (H),
          PULLINELLI (PO), KOTTAYI,
          PALAKKAD DISTRICT, PIN - 678572

    2     ALIYAR
          AGED 58 YEARS
          S/O BAPPU,
          ODUNGOTTU PARAMABU VEEDU (H),
          PULLINELLI (PO), KOTTAYI,
          PALAKKAD DISTRICT, PIN - 678572

    3     SHAJAHAN
          AGED 28 YEARS
          S/O ALIYAR,
          ODUNGOTTU PARAMABU VEEDU (H),
          PULLINELLI (PO), KOTTAYI,
          PALAKKAD DISTRICT, PIN - 678572

          BY ADVS.
          ARJUN C BHASKAR
          GOKUL DEVIS

RESPONDENT/S:

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

    2     ARIEFKHAN
          MAIMOONA MANZIL, CHERANAD,
          ERIMAYUR, ERIMAYUR P.O, ALATHUR TALUK,
          PALAKKAD DISTRICT, PIN - 678546

          SRI. VIPIN NARAYAN, SR. PP
 CRL.MC NO. 4385 OF 2023

                            2


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 20.06.2023, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
 CRL.MC NO. 4385 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 3 in C.C. No.

564 of 2021 on the file of the Judicial Magistrate of First Class, Alathur.

In the aforesaid case, they are accused of having committed offences

punishable under Sections 341, 294(b), 323, 324, 326 r/w Section 34 of

the IPC.

3. The prosecution allegation is that on 20.08.2021 at about

03.30 p.m., the petitioners herein, in furtherance of their common

intention, are alleged to have entered the courtyard of the de facto

complainant and attacked him with a wooden stick, causing injuries.

4. The learned counsel appearing for the petitioners

submitted that the parties have settled their disputes and they are not

desirous of pursuing the prosecution proceedings. Reliance is placed on

Annexure- A3 affidavit filed by the 2nd respondent to substantiate his

contention. According to the learned counsel, if the proceedings are

terminated, recording the amicable settlement, the parties can embark

upon their future paths in an atmosphere of tranquility and mutual

respect.

CRL.MC NO. 4385 OF 2023

5. When the matter had come up for admission, this court

had directed the investigating officer concerned to record the statement

of the defacto complainant/injured/victim and report as to whether the

assertion in the petition and the affidavit filed in support that entire

disputes have been resolved between the parties concerned is true and

genuine. The investigating officer was also directed to report as to

whether the petitioners are persons with criminal antecedents and

whether there is any other impediment in terminating the criminal

proceedings.

6. The learned Public Prosecutor has raised reservations with

regard to the prospect of quashing the present proceedings purely on

the basis of the settlement. It is urged that the extant circumstances

may not warrant the exercise of the court's inherent jurisdiction, as

conferred under Section 482 of the Code of Criminal Procedure.

However, it is fairly submitted that no other transgressions or

complaints stand registered against the petitioners hitherto. It is further

submitted that the statement of the party respondent has been

recorded, and he has unequivocally expressed that he harbors no

enduring grievances.

7. I have considered the submissions and have gone through

the records.

CRL.MC NO. 4385 OF 2023

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

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

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

of Punjab3, State of Rajasthan v. Shambhu Kewat4, State of

M.P. v. Deepak5, State of M.P. v. Manish6, J. Ramesh Kamath v.

Mohana Kurup7, State of M.P. v. Rajveer Singh8, Parbatbhai

Aahir v. State of Gujarat9, State of M.P. v. Kalyan Singh10 and

State of M.P. v. Dhruv Gurjar11. 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

[(2019) 5 SCC 688]

(2012) 10 SCC 303

2014 (6) SCC 466

(2014) 4 SCC 149

(2014) 10 SCC 285

(2015) 8 SCC 307

2016) 12 SCC 179

(2016) 12 SCC 471

(2017) 9 SCC 641

(2019) 4 SCC 268

(2019) 5 SCC 570] CRL.MC NO. 4385 OF 2023

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 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 CRL.MC NO. 4385 OF 2023

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.

9. Having carefully analyzed the nature of the allegations, the

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

the petitioners, and the amicable relationship that now exists between

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

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

impact on the society and it would only inure to bring about peace and

secure the ends of justice. Even otherwise, persisting with the

prosecution would be nothing but a waste of time as the prospects of

conviction are bleak. Having considered all the relevant circumstances,

I am of the considered view that this Court will be well justified in CRL.MC NO. 4385 OF 2023

invoking its extraordinary powers under Section 482 of the Code to

quash the proceedings.

Resultantly, this petition will stand allowed. Annexure-A2 Final

Report in Crime No. 778/2021 of Alathur Police Station and all further

proceedings pending against the petitioners as C.C. No. 564 of 2021 on

the file of the Judicial Magistrate of First Class, Alathur, are quashed.

Sd/-

RAJA VIJAYARAGHAVAN V JUDGE

avs CRL.MC NO. 4385 OF 2023

APPENDIX OF CRL.MC 4385/2023

PETITIONER ANNEXURES

Annexure A1 THE CERTIFIED COPY OF THE FIR 0778/2021 OF ALATHUR POLICE STATION DATED 22/08/2021

Annexure A2 THE CERTIFIED COPY OF THE FINAL REPORT/CHARGE SHEET IN C.C.NO.564/2021 ON THE FILES OF HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT, ALATHUR DATED 20/12/2021

Annexure A2(a) THE TRUE COPY OF THE WITNESS MEMORANDUM C.C.NO.564/2021 ON THE FILES OF HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT, ALATHUR DATED 20/12/2021

Annexure A3 THE COPY OF THE AFFIDAVIT FILED BY THE 2ND RESPONDENT DATED AS ON 25.03.2023