Kerala High Court

Josephshibu vs Jossy on 27 October, 2023

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
         THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
   FRIDAY, THE 27TH DAY OF OCTOBER 2023 / 5TH KARTHIKA, 1945
                   CRL.MC NO. 8262 OF 2023
 AGAINST THE ORDER/JUDGMENT IN CC 241/2023 OF JUDICIAL FIRST
                CLASS MAGISTRATE COURT-I,KOCHI
PETITIONERS/ACCUSED 1 AND 2:
     1    JOSEPHSHIBU
          AGED 47 YEARS
          S/OAVARACHAN, KOCHERY VEEDU, SASATRI ROAD,
          KUMBALANGI VILLAGE, KUMBALANGI P.O,ERNAKULAM, PIN -
          682007

    2     HANEESHAKUMAR
          AGED 40 YEARS
          S/O HARSHAN,THANEEKKALVEED,KUMBALANGI P.O,ERNAKULAM,
          PIN - 682007

          BY ADV SHERIN VARGHESE


RESPONDENTS/COMPLAINANT/FORMAL PARTY:
     1    JOSSY
          AGED 43 YEARS
          S/O PAILY, KADUNGAPARAMBU HOUSE, SASHTRI ROAD,
          KUMBALANGI P.O,ERNAKULAM, PIN - 682007

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

    3     INSPECTOR OF POLICE
          PALLURUTHY,KASABAPOLICESTATION,NADAKAVU,PALLURUTHY,E
          RNAKULAM, PIN - 682005

          BY ADV P.K.RAKESH KUMAR .


OTHER PRESENT:
          SRI HRITHWIK, PP


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
27.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC No.8262 of 2023

                                2

                  P.V.KUNHIKRISHNAN
             ---------------------
                  CRL.MC No.8262 of 2023
          ---------------------------
           Dated this the 27th 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.241/2023 on the files of the Judicial First Class

Magistrate Court-I, Kochi arising from Crime No.1331/2019

of Palluruthy Police Station. The above case is charge

sheeted against the petitioners alleging offences punishable

under Sections 341 and 324 r/w Section 34 IPC.

3. The prosecution case is that the accused

wrongfully confined the victim and 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 victim in support of his

contention. The counsel appearing for the victim also CRL.MC No.8262 of 2023

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

petitioners, 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 CRL.MC No.8262 of 2023

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 CRL.MC No.8262 of 2023

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. CRL.MC No.8262 of 2023

All further proceedings against the petitioners in

C.C.No.241/2023 on the files of the Judicial First Class

Magistrate Court-I, Kochi arising from Crime No.1331/2019

of Palluruthy Police Station are quashed.

Sd/-