Yousuf vs State Of Kerala
2023 Latest Caselaw 12655 Ker

Kerala High Court

Yousuf vs State Of Kerala on 24 November, 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 24TH DAY OF NOVEMBER 2023 / 3RD AGRAHAYANA, 1945
                        CRL.MC NO. 9436 OF 2023
   CRIME NO.35/2009 OF PERUMPADAPPU POLICE STATION, MALAPPURAM
AGAINST THE ORDER/JUDGMENT IN SC 1372/2021 OF ADDITIONAL DISTRICT
   COURT & SESSIONS COURT - III, MANJERI / III ADDITIONAL MACT,
                                MANJERI
PETITIONER/S:

          SHOUKATH
          AGED 37 YEARS
          S/O.KHALID MUSLIAR, VALIYAPURAKKAL HOUSE, VELIYAMCODE,
          PONNANI TALUK, MALAPURAM DISTRICT, PIN - 679579
          BY ADVS.
          E.A.HARIS
          M.A.AHAMMAD SAHEER
          MUHAMMED YASIL


RESPONDENT/S:

          STATE OF KERALA
          REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
          PIN - 682031
OTHER PRESENT:

          SRI MP PRASANTH , PP


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
24.11.2023, ALONG WITH Crl.MC.9440/2023, 9448/2023, THE COURT ON
THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NOs. 9436, 9440,9448 OF 2023
                             2



         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
       THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 24TH DAY OF NOVEMBER 2023 / 3RD AGRAHAYANA, 1945
                  CRL.MC NO. 9440 OF 2023
CRIME NO.35/2009 OF PERUMPADAPPU POLICE STATION, MALAPPURAM
  AGAINST THE ORDER/JUDGMENT IN     CC 196/2021 OF JUDICIAL
           MAGISTRATE OF FIRST CLASS -I, PONNANI
PETITIONER/S:

         SADIK
         AGED 36 YEARS
         S/O.MAMMUNNI, MUKRIYATH HOUSE, AYOTTICHIRA,
         VELIYAMCODE, PONNANI TALUK, MALAPURAM DISTRICT,
         PIN - 679579
         BY ADVS.
         E.A.HARIS
         M.A.AHAMMAD SAHEER
         MUHAMMED YASIL


RESPONDENT/S:

         STATE OF KERALA
         REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
         KERALA, PIN - 682031
         OTHER PRESENT:
         SRI MP PRASANTH , PP


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 24.11.2023, ALONG WITH Crl.MC.9436/2023 AND CONNECTED
CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NOs. 9436, 9440,9448 OF 2023
                             3



          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 24TH DAY OF NOVEMBER 2023 / 3RD AGRAHAYANA, 1945
                  CRL.MC NO. 9448 OF 2023
CRIME NO.35/2009 OF PERUMPADAPPU POLICE STATION, MALAPPURAM
 AGAINST THE ORDER/JUDGMENT IN SC 1257/2021 OF ADDITIONAL
    DISTRICT COURT & SESSIONS COURT - II, MANJERI / II
                  ADDITIONAL MACT, MANJERI
PETITIONER/S:

         YOUSUF
         AGED 45 YEARS
         S/O.ENU, MUKRIYATH HOUSE, VELIYANCODE, PONNANI
         TALUK, MALAPURAM DISTRCT, PIN - 679579
         BY ADVS.
         E.A.HARIS
         M.A.AHAMMAD SAHEER
         MUHAMMED YASIL


RESPONDENT/S:

    1    STATE OF KERALA
         REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
         KERALA, PIN - 682031
    2    SIDDIQUE
         AGED 62 YEARS
         S/O.ENU, PADINJARAKATHU HOUSE, VELIYAMCODE AMSOM,
         PONNANI TALUK, MALAPURAM DISTRICT, PIN - 695512


OTHER PRESENT:
          SRI. HRITHWIK C S; PP
          SRI. WAKARUL ISLAM K.S FOR R2
     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 24.11.2023, ALONG WITH Crl.MC.9436/2023 AND CONNECTED
CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NOs. 9436, 9440,9448 OF 2023
                                            4

                         P.V.KUNHIKRISHNAN, J.
            ...................................................................
               Crl.M.C Nos.9436, 9440,9448 of 2023
           .....................................................................
           Dated this the 24th day of November, 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. Petitioners are accused in Crime No.35/2009 of

Perumpadappu Police Station, Malappuram. The case against the

petitioner in Crl.M.C No.9436/2023 is pending as S.C No. 1372/2021

on the file of Additional District Court & Sessions Court-III, Manjeri /

III Additional MACT, Manjeri, in Crl.M.C No.9440/2023 is pending as

C.C No. 196/2021 on the file of Judicial First Class Magistrate Court-I,

Ponnani and in Crl.M.C No. 9448/2023 is pending as S.C No. 1257 /

2021 on the file of Additional District Court & Sessions Court-II,

Manjeri / II Additional MACT, Manjeri.

3. The prosecution case is that accused formed themselves into

an unlawful assembly and after trespassing to the house of the victim,

committed mischief.

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 CRL.MC NOs. 9436, 9440,9448 OF 2023

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 affidavits 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 CRL.MC NOs. 9436, 9440,9448 OF 2023

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 CRL.MC NOs. 9436, 9440,9448 OF 2023

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 Crl.M.C No.9436/2023 is

pending as S.C No. 1372/2021 on the file of Additional District Court

& Sessions Court-III, Manjeri / III Additional MACT, Manjeri, in

Crl.M.C No.9440/2023 is pending as C.C No. 196/2021 on the file of

Judicial First Class Magistrate Court-I, Ponnani and in Crl.M.C No.

9448/2023 is pending as S.C No. 1257 / 2021 on the file of Additional

District Court & Sessions Court-II, Manjeri / II Additional MACT,

Manjeri arising from Crime No.35/2009 of Perumpadappu Police

Station are quashed.

Sd/-

P.V.KUNHIKRISHNAN JUDGE SJ CRL.MC NOs. 9436, 9440,9448 OF 2023

PETITIONER ANNEXURES Annexure A1 THE TRUE COPY OF THE FINAL REPORT IN C.C.196/2021 OF THE JUDICIAL FIRST CLASS MAGISTRATE, PONNANI Annexure A2 THE TRUE COPY OF THE MEMO OF EVIDENCE IN C.C.196/2021 OF THE JUDICIAL FIRST CLASS MAGISTRATE, PONNANI Annexure A3 THE TRUE COPY OF THE JUDGMENT DATED 25- 02-2021 IN S.C.194/2015 OF THE HON'BLE ADDL.SESSIONS COURT-II, MANJERI CRL.MC NOs. 9436, 9440,9448 OF 2023

PETITIONER ANNEXURES Annexure A1 CERTIFIED COPY OF THE FINAL REPORT IN S.C.1257/2021 OF THE ADDL-SESSIONS COURT-II, MANJERI Annexure A2 TRUE COPY OF THE MEMO OF EVIDENCE IN S.C.1257/2021 OF THE ADDL-SESSIONS COURT-II, MANJERI Annexure A3 TRUE COPY OF THE JUDGMENT DATED 25-02- 2021 IN S.C.194/2015 OF THE HON'BLE ADDL.SESSIONS COURT-II, MANJERI Annexure A4 THE AFFIDAVIT OF THE 2ND RESPONDENT DATED 10-09-2023 CRL.MC NOs. 9436, 9440,9448 OF 2023

PETITIONER ANNEXURES Annexure A1 THE TRUE COPY OF THE FINAL REPORT IN S.C.1372/2021 OF THE ADDL-SESSIONS COURT-III, MANJERI Annexure A2 THE TRUE COPY OF THE MEMO OF EVIDENCE IN S.C.1372/2021 OF THE ADDL-SESSIONS COURT-III, MANJERI Annexure A3 THE TRUE COPY OF THE JUDGMENT DATED 25- 02-2021 IN S.C.194/2015 OF THE HON'BLE ADDL.SESSIONS COURT-II, MANJERI