Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 31ST DAY OF MAY 2023 / 10TH JYAISHTA, 1945 SC 363/2022 OF ADDITIONAL DISTRICT & SESSIONS COURT -III, KOZHIKODE / II ADDITIONAL MACT, KOZHIKODE CRIME NO.96/2021 OF PANNIYAKARA POLICE STATION, KOZHIKODE PETITIONERS/ACCUSED:
1 ARJAS S/O BHASHEER, AGED 32 YEARS RESIDING AT ARJAS MANSIL HOUSE, CHAPPILTHODI, KAPPAKAL, KALLAI, KOZHIKODE, PIN - 673003 2 MOHAMMED NAISHAB K.P AGED 27 YEARS S/O MOHAMMED SHAFI, RESIDING AT KALIYATU PARAMBU, VELAYIL, NADAKAVU PO, KOZHIKODE, PIN - 673006 3 MOHAMMED ASLAM K AGED 28 YEARS S/O, MOIDEEN KOYA, RESIDING AT VALIYAPATAM PARAMBU HOUSE, PAYANAKAL KALLAI, KOZHIKODE, PIN - 673003 4 MOHAMMED YASAR N.P AGED 28 YEARS S/O ABOOBAKAR, RESIDING AT MAVOLIKADI PARAMBU, KALLAI, KOZHIKODE, PIN - 673003 5 ABIN RAJ.P AGED 26 YEARS S/O RAJEEV, RESIDING AT KALATHUMMAR HOUSE, WEST KANNANCHERRY, KALLAI POST, KOZHIKODE, PIN - 673003 6 MOHAMMED SALU T.V AGED 43 YEARS S/O MOIDEEN KOYA, RESIDING AT KIZHAKTHODI HOUSE, PAYANAKAL, KALLAI POST, KOZHIKODE, PIN - 673003
7 SHAMMAS S.M AGED 26 YEARS S/O SHARIF, RESIDING AT SHABANA PLAZA HOUSE, NEAR RAILWAY GATE, FISH MARKET, MEENCHANTHA, KOZHIKODE, PIN - 673018
BY ADVS. P.JERIL BABU SRINATH GIRISH RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 MUHAMMED RIZWAN AGED 22 YEARS S/O RIYAS, THALIYADATHU POYIL PARAMBU,YMRC, ARTS COLLEGE POST, KOZHIKODE, PIN - 673018 3 RIYAS.P AGED 48 YEARS S/O BEERAN KOYA, THALIYADATHU POYIL PARAMBU, YMRC, ARTS COLLEGE POST, KOZHIKODE, PIN - 673018 4 AJMAL SHAHID.N. V AGED 18 YEARS S/O NAZAR, VALIYA PADAM PARAMB HOUSE, PAYANAKKAL KALLAI P.O, KOZHIKODE, PIN - 673003 BY ADVS. PUBLIC PROSECUTOR Prasudha S SRI VIPIN NARAYAN, SR PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 31.05.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ORDER
This petition is filed invoking the powers of this Court under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity).
2. The petitioners herein are the accused in SC.No.363 of
2022 on the file of the Additional District & Sessions Court III, Kozhikode. In the said case, they face indictment for having committed offences punishable under Sections 143,147, 148, 324, 307 r/w Section 149 of the IPC.
3. The prosecution allegation, as borne out from the
records, are as under: On 04.04.2021 at about 5.30 p.m., the petitioners formed themselves into an unlawful assembly and, in the prosecution of their common object, entered the committee office of the UDF and attacked respondents 2 to 4 and caused injuries.
4. The learned counsel appearing for the petitioners
submitted that the parties have settled their disputes and they are not desirous of pursuing the prosecution proceedings. Reliance is placed on Annexures - A5 to A7 affidavits filed by respondents 2 to 4 to substantiate his contention. According to the learned counsel, if the proceedings are terminated, recording the amicable settlement, the parties can embark upon their future paths in an atmosphere of tranquility and mutual respect.
5. When the matter had come up for admission, this
Court had directed the investigating officer concerned to record the statement of the de facto complainant/injured/victim and report as to whether the assertion in the petition and the affidavit filed in support that entire disputes have been resolved between the parties concerned is true and genuine. The investigating officer was also directed to report as to whether the petitioners are persons with criminal antecedents and whether there is any other impediment in terminating the criminal proceedings.
6. The learned Public Prosecutor has raised reservations
with regard to the prospect of quashing the present proceedings purely on the basis of the settlement. It is urged that the extant circumstances may not warrant the exercise of the court's inherent jurisdiction, as conferred under Section 482 of the Code of Criminal Procedure. He would highlight that among the offenses against the petitioners in the Charge, the offense under Section 307 of the IPC also has been included. However, it is fairly submitted that no other transgressions or complaints stand registered against the Petitioners hitherto. It is further submitted that the statement of the party respondents has been recorded, and they have unequivocally expressed that they harbor no enduring grievances.
7. I have considered the submissions and have gone through the records.
8. In State of M.P. v. Laxmi Narayan,1 a three-judge
bench of the Hon’ble Supreme Court has summarised the law as laid down in Gian Singh v. State of Punjab2, Narinder Singh v. State of Punjab3, State of Rajasthan v. Shambhu Kewat4, [(2019) 5 SCC 688]
(2012) 10 SCC 303 2014 (6) SCC 466
(2014) 4 SCC 149
State of M.P. v. Deepak5, State of M.P. v. Manish6, J. Ramesh Kamath v. Mohana Kurup7; State of M.P. v. Rajveer Singh8, Parbatbhai Aahir v. State of Gujarat9, State of M.P. v. Kalyan Singh10 and State of M.P. v. Dhruv Gurjar11. It was laid down as under:
15. Considering the law on the point and the other decisions of this Court on the point referred to hereinabove, it is observed and held as under:
15.1. That the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 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; 15.2. Such power is not to be exercised in those prosecutions which involved heinous and serious offences of mental
(2014) 10 SCC 285
(2015) 8 SCC 307 2016) 12 SCC 179
(2016) 12 SCC 471
(2017) 9 SCC 641
(2019) 4 SCC 268
(2019) 5 SCC 570]
depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society; 15.3. Similarly, such power is not to be exercised for the offences under the special statutes like the 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; 15.4. Offences under Section 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 Section 307 IPC and/or the Arms Act, etc. which have a serious impact on the society cannot be quashed in exercise of powers under Section 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 Section 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 Section 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 Section 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/delicate 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 paras 29.6 and 29.7 of the decision of this Court in Narinder Singh [Narinder Singh v. State of Punjab, (2014) 6 SCC 466 : (2014) 3 SCC
(Cri) 54] should be read harmoniously and to be read as
a whole and in the circumstances stated hereinabove; 15.5. While exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offenses, which are private in nature and do not have a serious impact 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.
9. In the case on hand, the offenses alleged include
Section 307 of the IPC as well. In Laxmi Narayanan (supra), the Apex Court has reminded it would be open to this Court to examine whether incorporation of Section 307 of the IPC is there for the sake of it or whether the prosecution has collected sufficient evidence, which, if proven, would lead to framing the charge under Section 307 IPC. For this purpose, this Court was required to go by the nature of the injury sustained, whether such injury is inflicted on the vital/delicate parts of the body, the nature of weapons used, etc. I have gone through the copies of the wound certificates of Muhammed Rizwan, Riyas, and Ajmal, which are produced as Annexure A4 series. I find that the injured were seen by the Asst.Surgeon of the Govt.General Hospital on 04.4.2021. Insofar as Muhammed Riswan and Ajmal are concerned, no external injuries have been noted by the Asst.Surgeon. However, insofar as Riyas is concerned, a single lacerated wound was noted on his scalp on the parietal region, having a dimension of 6 x 1 cm. It is stated therein that the aforesaid person was hit with a stick on his head. The injury noted by the doctor cannot be said to be grave warranting incorporation of a charge under Section 307 of the IPC. Furthermore, the petitioners and the party respondents are members of rival political parties and as it appears from the affidavit, they have settled all their disputes and are living in peace and harmony. In that view of the matter, despite the incorporation of Section 307 of the IPC in the Charge, this Court would be well justified in quashing the proceedings recording the settlement. The quashing of proceedings on the basis of the settlement will not have any adverse impact on the society and it would only inure to bring about peace and secure the ends of justice. Even otherwise, persisting with the prosecution would be nothing but a waste of time as the prospects of conviction are bleak. Having considered all the relevant circumstances, I am of the considered view that this Court will be well justified in invoking its extraordinary powers under Section 482 of the Code to quash the proceedings. Resultantly, this petition will stand allowed. Annexure-A2 Final Report in Crime No.96/2021 of Panniyankara Police Station and all further proceedings pending against the petitioners as S.C.No.363/2022 on the file of the Additional District & Sessions Court-III, Kozhikode are quashed. Sd/- RAJA VIJAYARAGHAVAN V., JUDGE IAP APPENDIX OF CRL.MC 5963/2022 PETITIONERS’ ANNEXURES: Annexure A1 A CERTIFIED COPY OF THE FIR DATED 04-04-2021 ALONG WITH FIS IN CRIME NO. Annexure A2 A CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 0096/2021 Annexure A3 A TRUE COPY OF THE MEMORANDUM OF EVIDENCE IN CRIME NO.0096/2021 Annexure A4 Series TRUE COPIES OF WOUND CERTIFICATES OF 2ND 3RD AND 4TH RESPONDENTS IN CRIME NO. Annexure A5 AFFIDAVIT FILED BY 2ND RESPONDENT Annexure A6 AFFIDAVIT FILED BY 3RD RESPONDENT Annexure A7 AFFIDAVIT FILED BY 4TH RESPONDENT