Ijas vs State Of Kerala
2023 Latest Caselaw 10147 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
           THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
   THURSDAY, THE 21ST DAY OF SEPTEMBER 2023 / 30TH BHADRA, 1945
                     CRL.MC NO. 6819 OF 2023
 AGAINST THE ORDER/JUDGMENT CC 90/2011 OF JUDICIAL MAGISTRATE OF
                     FIRST CLASS -II, KOLLAM
PETITIONER/1ST ACCUSED:

          IJAS
          AGED 33 YEARS
          S/O. IBRAHIMKUTTY. RESIDING AT KAYYALACKAL LEKSHM
          VEEDU, PATTANITHANGAL NAGAR-91, KAYYALAKKAL CHERRY,
          ERAVIPURAM.P.O., KOLLAM, PIN - 691011
          BY ADV B.K.GOPALAKRISHNAN


RESPONDENTS/STATE/DEFACTO COMPLAINANT:

    1     STATE OF KERALA
          REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA
          ERNAKULAM, PIN - 682031
    2     SHINU
          AGED 33 YEARS
          S/O. SIRAJUDEEN, THEKKEZHIKATHU VADAKKATHIL,
          SNEHA NAGAR-148, ERAVIPURAM. P.O., KOLLAM, KERALA,
          PIN - 691011
          BY ADV.
          SRI.HRITWICK CS PP



     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
21.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.M.C.No.6819 of 2023


                            2




            P.V.KUNHIKRISHNAN, J.
           ------------------------------
            Crl.M.C.No.6819 of 2023
   ----------------------------------------------
  Dated this the 21st day of September, 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. Petitioner is the accused in C.C.No.90/2011

on the file of the Judicial First Class Magistrate

Court - II, Kollam arising from Crime No.1518/2010

of Eravipuram Police Station. The above case is

registered against the petitioner alleging offences

punishable under Sections 143, 144, 147, 148,

120(b), 323, 324, 341 r/w 149 IPC.

3. The prosecution case is that the accused Crl.M.C.No.6819 of 2023

formed themselves into an unlawful assembly and

assaulted the victim and thereby committed the

above said offences.

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 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 Crl.M.C.No.6819 of 2023

the petitioner, 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 discussed the law in detail and the

same is extracted hereunder:

Crl.M.C.No.6819 of 2023

"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 Crl.M.C.No.6819 of 2023

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 Crl.M.C.No.6819 of 2023

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 in C.C.No.90/2011

on the file of the Judicial First Class Magistrate

Court - II, Kollam arising from Crime No.1518/2010

of Eravipuram Police Station are quashed.

Sd/-

P.V.KUNHIKRISHNAN DM JUDGE Crl.M.C.No.6819 of 2023

APPENDIX OF CRL.MC 6819/2023

PETITIONER ANNEXURES ANNEXURE A1 A TRUE PHOTOCOPY OF THE FIR NO:

1518/2010 OF ERAVIPURAM POLICE STATION DATED 04/12/2010 ANNEXURE A2 A TRUE PHOTOCOPY OF THE FINAL REPORT IN FIR NO. 1518/2010 OF ERAVIPURAM POLICE STATION ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT - II, KOLLAM AS C.C. NO. 90/2011 DATED 10/01/2011 ANNEXURE A3 AN ORIGINAL AFFIDAVIT OF THE 2ND RESPONDENT DATED 11TH DAY OF JULY, 2023 AS NO. 116753 SWORN BEFORE EMBASSY OF INDIA, DOHA, QATAR

RESPONDENTS EXHIBITS :NIL //TRUE COPY// PA TO JUDGE