Kerala High Court

Nelvin Varghese vs State Of Kerala on 26 October, 2023

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 26TH DAY OF OCTOBER 2023 / 4TH KARTHIKA, 1945
                  CRL.MC NO. 8100 OF 2023
AGAINST THE ORDER/JUDGMENT IN CC 1032/2020 OF JUDICIAL MAGI
           FIRST CLASS MAGISTRATE COURT, ANGAMALY
PETITIONERS/ACCUSED:

    1     NELVIN VARGHESE
          AGED 35 YEARS
          S/O V.O. VARGHESE, VALLOORAN HOUSE, PULLANI,
          THURAVOOR (POST), ANGAMALY, ERNAKULAM DISTRICT.
          PIN 683572, PIN - 683572

    2     BAVARIN JOHN
          AGED 28 YEARS
          (MISTAKENLY WRITTEN AS BEVARIN JOHN IN THE FIR)
          AGED 28 YEARS, S/O M.A. YOHANNAN, MULAVARICKAL
          HOUSE, VATHAKKADU, THURAVOOR (POST), ANGAMALY,
          ERNAKULAM DISTRICT., PIN - 683572

    3     VINU JOSEPH
          AGED 30 YEARS
          S/O M.M. JOSEPH, MADAVANA HOUSE, VATHAKKADU,
          THURAVOOR (POST), ANGAMALY, ERNAKULAM DISTRICT.,
          PIN - 683572

    4     JERIEN JOSE
          AGED 32 YEARS
          (MISTAKENLY WRITTEN AS JERRIN IN THE FIR) S/O
          P.M. JOSE, PAYYAPPILLY KOLUVAN HOUSE, VATHAKKADU,
          THURAVOOR (POST), ANGAMALY, ERNAKULAM DISTRICT.,
          PIN - 683572

          BY ADV JESWIN P.VARGHESE



RESPONDENTS/COMPLAINANT:

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

    2     BIJOY. T.D
          AGED 43 YEARS
 CRL.MC No.8100 of 2023

                                 2

          S/O DEVASIKUTTY, THOTTAPPILLY (HOUSE),
          VATHAKKADU, THURAVOOR (POST), ANGAMALY, ERNAKULAM
          DISTRICT., PIN - 683572


OTHER PRESENT:

          SRI SANAL P RAJ, PP




      THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON   26.10.2023,   THE   COURT   ON   THE   SAME   DAY   PASSED   THE
FOLLOWING:
 CRL.MC No.8100 of 2023

                                  3

                  P.V.KUNHIKRISHNAN
             ---------------------
                  CRL.MC No.8100 of 2023
          ---------------------------
           Dated this the 26th day of October, 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

C.C.No.1032/2020 on the files of the Judicial First Class

Magistrate Court, Angamaly arising from Crime

No.1016/2020 of Angamaly Police Station. The above case

is charge sheeted against the petitioners alleging offences

punishable under Sections 323, 324, 325, 326, 327, 330,

331, 341, 356 r/w Section 34 IPC.

3. The prosecution case is that the accused

assaulted the victim.

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 victims in support of his CRL.MC No.8100 of 2023

contention. The counsel appearing for the victims also

submitted that the matter is settled and the victims have

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, victims and the Public Prosecutor and has also

gone through the records including the affidavit filed by the

victims.

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 CRL.MC No.8100 of 2023

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 CRL.MC No.8100 of 2023

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 CRL.MC No.8100 of 2023

and the settlement can be accepted.

Therefore, this Criminal Miscellaneous case is allowed.

All further proceedings against the petitioners in

C.C.No.1032/2020 on the files of the Judicial First Class

Magistrate Court, Angamaly arising from Crime

No.1016/2020 of Angamaly Police Station are quashed.

Sd/-