Bishnu vs State Of Kerala
2023 Latest Caselaw 9931 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
  MONDAY, THE 18TH DAY OF SEPTEMBER 2023 / 27TH BHADRA, 1945
                     CRL.MC NO. 6675 OF 2023
     AGAINST THE ORDER/JUDGMENT CC 4888/2021 OF JUDICIAL
                MAGISTRATE OF FIRST CLASS ,VARKALA
PETITIONER/S:

    1     BISHNU, AGED 44 YEARS
          S/O NOUSHAD, VILAYIL VEEDU, MAULAVI JUNCTION,
          VAKKOM VILLAGE, VAKKOM (P.O) THIRUVANANTHAPURAM,
          PIN - 695308
    2     FAIZAL, S/O THAHIR, KURANGHAN THOTTAM VEEDU, VAKKOM
          VILLAGE, VAKKOM (P.O) THIRUVANANTHAPURAM, PIN -
          695308
    3     ASHOKAN, S/O KESHAVAN KORUKAAN VILAGHAM VEEDU,
          VAKKOM VILLAGE, VAKKOM (P.O) THIRUVANANTHAPURAM,
          PIN - 695308
          BY ADV K.RAJESH KANNAN


RESPONDENT/S:

    1     STATE OF KERALA
          REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
          KERALA, ERNAKULAM,, PIN - 682031
    2     RAJEEV, AGED 62 YEARS
          S/O PRABHAKARAN, VELIKKAKAGATH VEEDU, NEAR
          PULIVILAGOM TEMPLE, VAKKOM VILLAGE, VAKKOM (P.O)
          THIRUVANANTHAPURAM, PIN - 695308
OTHER PRESENT:

          HRITWICK C.S PP


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
18.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.M.C.6675/2023                        2


                  P. V. KUNHIKRISHNAN, J.
               -------------------------------------------
                   Crl.M.C.No.6675 of 2023
               -------------------------------------------
           Dated this the 18th day of September, 2023

                               ORDER

The petitioners are the accused in C.C.No.4888/2021 on the

file of Judicial First Class Magistrate Court, Varkala arising from

Crime No.1741/2021 of Kadakkavoor Police Station. The above case

is chargesheeted alleging offences punishable under sections 323,

326 r/w 34 of the Indian Penal Code.

2. The prosecution case is that on 02.08.2021 at about 11

a.m, the son of the defacto complainant, who is intellectually

disabled, was standing near the Government Higher Secondary

School, Vakkom, the accused persons tried to beat him and as he

tried to run way, had fracture in the left ankle.

3. The learned counsel for the petitioners submit 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.

4. 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.

5. 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.

6. 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 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 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."

7. 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.

The further proceedings in C.C.No.4888/2021 on the file of Judicial

First Class Magistrate Court, Varkala arising from Crime

No.1741/2021 of Kadakkavoor Police Station are quashed.

Sd/-

P. V. KUNHIKRISHNAN JUDGE Sbna/

APPENDIX OF CRL.MC 6675/2023

PETITIONER ANNEXURES Annexure A1 CERTIFIED COPY OF THE FINAL REPORT IN C.C. NO.4888/2021 ON THE FILE OF JUDICIAL 1ST CLASS MAGISTRATE COURT, VARKALA WHICH AROSE FROM CRIME NO.1741/2021 OF KADAKKAVOOR POLICE STATION, THIRUVANANTHAPURAM (RURAL) DISTRICT DATED 15.09.2021 Annexure A2 ORIGINAL AFFIDAVIT DATED 14.07.2023 SWORN BY THE 2ND RESPONDENT/DE-FACTO COMPLAINANT