Delvin Paul vs State Of Kerala
2024 Latest Caselaw 11459 Ker

Kerala High Court

Delvin Paul vs State Of Kerala on 23 April, 2024

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
           THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
     TUESDAY, THE 23RD DAY OF APRIL 2024 / 3RD VAISAKHA, 1946
                       CRL.MC NO. 3472 OF 2024
CRIME NO.5/2019 OF CYBER CRIME POLICE STATION, THRISSUR, THRISSUR
  AGAINST THE ORDER/JUDGMENT DATED IN CC NO.365 OF 2022 OF CHIEF
                    JUDICIAL MAGISTRATE, THRISSUR
PETITIONERS:

    1     DELVIN PAUL, AGED 28 YEARS, S/O PAULY,
          MELEDATH HOUSE, KATHIKUDAM DESOM,
          KADUKUTTI PANCHAYATH, THRISSUR DISTRICT,
          PIN - 680309

    2     BENSON THOMAS, AGED 34 YEARS, S/O THOMAS,
          MELEDATH HOUSE, KATHIKUDAM DESOM,
          KADUKUTTI PANCHAYATH, THRISSUR, PIN - 680309

          BY ADVS.
          JERRY MATHEW
          DEVIKA K.R.


RESPONDENTS:

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

    2     SREEKALA M.S., AGED 44 YEARS, D/O SREEKUMAR,
          SREESAVIDAM, THEKKEPURAM, KUNNAMKULAM,
          THRISSUR DISTRICT, PIN - 680503


          BY ADVS.
          SMT. SEETHA S - SR. P.P.
          SRI.REGHU SREEDHARAN - R2


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
23.04.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CrlMC 3472/24
                                   2

                            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 CC No.365/2022

on the files of the Chief Judicial Magistrate's Court, Thrissur,

arising from Crime No.5/2019 of Cyber Crime Police Station,

Thrissur. The above case is charge-sheeted alleging offences

punishable under Sections 469, 500 r/w 34 of Indian Penal

Code.

3. The prosecution case is that in order to defame and

insult the complainant and her News Channel where she was

working, the accused persons morphed nude photographs of

the defacto complainant and posted them on Face Book and

circulated them on social media and thereby alleged to have

committed the aforesaid offences.

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 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

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."

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

and all further proceedings against the petitioners in CC

No.365/2022 on the files of the Chief Judicial Magistrate's

Court, Thrissur, arising from Crime No.5/2019 of Cyber

Crime Police Station, Thrissur, are quashed.

Sd/-

RR                                    P.V.KUNHIKRISHNAN
                                           JUDGE





PETITIONER ANNEXURES
Annexure I          ACCUSED COPY OF THE FINAL REPORT DATED

30.08.2022 IN CC NO.365/2022 OF CJM COURT THRISSUR, THRISSUR DISTRICT Annexure II AFFIDAVIT SWORN BY THE 2ND RESPONDENT DATED 06/04/2024