Kerala High CourtT.H. Badarudheen vs State Of Kerala on 17 March, 2013IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                           PRESENT:

                     THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

                MONDAY,THE 3RD DAY OF OCTOBER 2016/11TH ASWINA, 1938

                                 Crl.MC.No. 2409 of 2015 ()
                                     ---------------------------


      CP 4/2015 of J.M.F.C.-I, ALUVA IN CRIME NO. 908/2013 OF ALUVA EAST POLICE
                                   STATION , ERNAKULAM


PETITIONER(S):
---------------------

                T.H. BADARUDHEEN
                S/O.HASSAN, THANDICKAL HOUSE,
                KAPRASSERY, NEDUMABASSERY PO,
                ERNAKULAM DISTRICT, PIN 683585


                     BY ADVS.SRI.T.S.RAJAN
                             SMT.MAREEJA MOOSA
                             SRI.K.ABDUL HAKEEM

RESPONDENT(S):
-----------------------

        1. STATE OF KERALA
           REPRESENTED BY THE INSPECTOR OF POLICE, ALUVA
           REPRESENTED BY PUBLIC PROSECUTOR,
           HIGH COURT OF KERALA, COCHIN 682018

        2. SUMESH
           S/O.SUKUMARAN, PUTHENPURAKAL HOUSE,
           CHIRATTAPALAM, FORT KCOHI PO,
           ERNAKULAM DISTRICT 682002

        3. YASSIR
           S/O.KAMAL, PUTHIYAVEETIL HOUSE,
           CHULLIKAL KARA, THOPPUMPADY PO,
           ERNAKULAM DISTRICT, NOW RESIDING AS LIFT OPERATOR IN JEDDAH,
           SAUDI ARABIA


                     R2 & 3 BY ADV. SRI.K.A.SALIL NARAYANAN
                     R1 BY PUBLIC PROSECUTOR SAIGI JACOB PALATTY

            THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03-10-2016,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

Crl.MC.No. 2409 of 2015 ()
---------------------------

                                            APPENDIX

PETITIONER(S)' EXHIBITS
------------------------------------

ANNEXURE 1:CERTIFIED COPY OF THE FIR AND FIS IN CRIME NUMBER 908/2013 OF
                   ALUVA EAST POLICE STATION

ANNEXURE II:CERTIFIED COPY OF THE CHARGE IN CP.NO.4/2015 PENDING BEFORE
                    THE JFCM I ALUVA

ANNEXURE III:CERTIFIED COPY OF THE ACCIDENT REGISTER CUM WOUND
                    CERTIFICATE OF CWI SUMESH DATED 17.03.2013 ISSUED
                     BY DR. AJEESH PR

ANNEXURE IV:AFFIDAVIT OF 2ND RESPONDENT, DEFACTO COMPLAINT

ANNEXURE V:AFFIDAVIT OF 3RD RESPONDENT

RESPONDENT(S)' EXHIBITS                        NIL
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                                                     // True Copy //

                                                      P.A. To Judge

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                     ALEXANDER THOMAS, J.
                 --------------------------
                   CRL.M.C. No.2409 of 2015
                 --------------------------
             Dated this the 3rd day of October, 2016

                             O R D E RThe petitioner is the 5th accused in C.P.No.4/2015 in

Annexure I, Crime No.908/2013 of the Aluva East Police Station

pending before the Judicial First Class Magistrate Court-I, Aluva,

wherein, the offences alleged are those underSections 365,395,

and307of IPC. The case alleged against the petitioner is that

the 5th accused had taken the de facto complainant/CW1 (R-2

herein ) and CW2 (R-3 herein) with their lorry from Aluva on

17.03.2013 at 11.15 p.m. to Thottakkattukara and when the lorry

reached in front of the Safi Dry cleaners at Desom road, the other

accused (A1,2,3,4, 6 &7) had attacked them and inflicted severe

injury and thereby committed the offence. There was also an

allegation that the accused persons had robbed Rs.4000/- from

the 3rd respondent.    The alleged motive is that the accused

persons were having inimical relationship with CW1 and CW2 on

account of the dispute in the matter of CW1 and CW2 removing

waste in the locality. It is contended by the petitioner is that

Annexure-III, wound certificate does not disclose any seriousCRL.M.C. No.2409 of 2015        2injuries on CW1 and it only state that it support tenderness to his

cheek and on the lower back. Annexure-VII statement given by

CW2 (R-3) which form part of the impugned Annexure II charge

sheet, which clearly disclosed that there are no specific

allegations raised against the petitioner herein, especially, in the

alleged act of violence etc.2.     Respondents 2 & 3 who have separately filed affidavits

as per Annexure 4 and 5, in which, they clearly stated that they

have not identified the petitioner in the incident and they have

not given the name of the petitioner to the police and that they

have no grievances against the petitioner and that they have no

objection in the quashment of the petition as against the

petitioner alone who is A5 and that there are no disputes pending

between them and the petitioner.           The said 2nd and 3rd

respondents have entered appearance through the learned

counsel who has also reiterated the said submissions on the basis

of the affidavits sworn to by the parties that CW1 and CW2 ( R-2

and R-3) have no grievances against the petitioner and that this

Court may consider the exercise of the extra ordinary discretion

conferred underSection 482of Cr.P.C so as to quash the

impugned criminal proceedings as against the petitioner alone. ItCRL.M.C. No.2409 of 2015       3is seriously urged by the petitioner that he has secured

employment as peon in the State Bank of Travancore (SBT) as

evident by Annexure -VI and that the matter has been settled

between the de facto complainants (R-2 and R-3) and the

petitioner as evident from the aforesaid affidavits filed by the

parties and as the petitioner had not committed any overt acts

against R2 and R3, this Court may exercise discretion under 482

ofCr.P.C. so as to quash the criminal proceedings against the

petitioner alone, as otherwise the pendency of the case will

adversely affect his continuance of his job as peon in the service

of the State Bank of Travancore and that he belongs to a poor

family etc. When the matter was heard in detail on an earlier

occasion, the petitioner had strongly urged that going by the

entire circumstances pointed out in the impugned FI statement

and the charge sheet and the other materials from records as well

as   the    other   attendance materials   on  record    and     the

circumstances emerging in this case, that some of the major

offences alleged in the impugned criminal proceedings are not in

any way disclose as against the petitioner, especially, in the light

of attendant circumstances. This Court had passed an interim

order in the impugned criminal proceedings on 08.06.2015, theCRL.M.C. No.2409 of 2015               4said order reads as follows:-"Admit Crl.M.C.
             P.P. takes notice for R-1 State of Kerala.          Sri.K.A.Salil
     Narayanan takes notice for R-2 and R-3.Arguments were heard in detail in this case.       The learned
     counsel for the petitioner has strongly urged that going by the entire
     circumstances projected in the impugned FI statement and the
     materials on record as well as the other attendant materials on
     record and the circumstances emerging in this case, it can be seen
     that some of the major offences alleged against the petitioner are not
     really disclosed against the petitioner     in the light of the those
     attendant circumstances. The learned counsel for the petitioner has
     further submitted that the petitioner has secured an appointment in
     the subordinate cadre of the State Bank of Travancore, as a Peon as
     evident from Anx.A-VI order.       It is pointed by the learned Public
     Prosecutor on the basis of the instructions from the investigating
     officer that except for this crime, no other criminal cases are pending
     against the present petitioner. The apprehension of the petitioner is
     that the pendency of this crime may be taken as an adverse factor for
     deciding on the issue as to his continuance in service of the public
     sector bank.opinionHavinginterim stay should be granted in this case. Accordingly,
                     heard both sides, this Court is of the considered
              that
     it is ordered that all impugned criminal proceedings pending against
     the petitioner pursuant to the final report/charge sheet filed in Anx.I
     Crime No.908/2013 of Aluva East Police Station, which has led to the
     pendency of C.P.No.4/2015 on the file of the Judicial First Class
     Magistrate's Court, Aluva, will remain stayed as far as the petitioner
     alone is concerned.     In view of the above said order staying the
     impugned criminal proceedings in this case, it is made clear that
     those impugned criminal proceedings, need not by itself be taken as
     an adverse factor for deciding on the question of continuance in
     service of the petitioner in any public sector employment."3.     Heard Sri.T.S. Rajan, the learned counsel appearing for

the petitioner, learned Prosecutor appearing for the R-1 State

and Sri.K.A.Salil Narayanan, the learned counsel appearing for R2

and R3.4.     The learned counsel appearing respectively for the

petitioner and respondents 2 and 3 have relied on the ruling of

this Court in the case Manoj and Others v. State of Kerala andCRL.M.C. No.2409 of 2015            5Others [2014 (3) KHC 524 =2014 Cri LJ 4040] and have pointed

out that in similar case therein, this Court has quashed the

impugned criminal proceedings as against the petitioner therein

alone, taking into account the fact that he had secured a

Government employment.           The offences charged in that case

against the petitioner therein was underSections 143,147,148,149,307,324,506(ii)IPC andSection 27of the Arms Act. There

were 8 accused in that case who had jointly filed the petition to

quash the impugned criminal proceedings in the light of the

settlement rival to the victims.5.     This Court referred to the legal principles laid by the

Apex Court in various decisions especially that inNarinder Singh

and Others v. State of Punjab and Anotherreported in [2014 (6)

SCC 466 =2014 (4) SCALE 195=2014 KHC 4195] and held that

ordinarily in the case of serious offences, the criminal

proceedings cannot be quashed merely on the basis of the

settlement arrived at between the accused and victims.Paragraphs 14 to 16 the ruling of this Court in Manoj's case

(supra) (which deals with the ruling of the Apex Court inNarinder

Singh's case supra) reads as follows:-"14.  Further in the decision reported inNarinder Singh
       and Others v. State of Punjab and Another, 2014 KHC 4195:2014
       (4)SCALE 195:ILR 2014 (2) Ker.85:2014(2) KLJ 252 the Hon'bleCRL.M.C. No.2409 of 2015              6Supreme Court has held that:"At the same time, one has to keep in mind the subtle
       distinction between the power of compounding of offences given
       to Court under S.320 of the Code and quashing of criminal
       proceedings by the High Court in exercise of its inherent
       jurisdiction conferred upon it under S.482 of the Code. Once, it is
       found that compounding is permissible only if a particular offence
       is covered by the provisions of S.320 of the Code and the Court in
       such cases is guided solitary and squarely by the compromise
       between the parties, insofar as power of quashing under S.482 of
       the Code is concerned, it is guided by the material on record as to
       whether the ends of justice would justify such exercise of power,
       although the ultimate consequence may be acquittal or dismissal
       of indictment."15.    Further in the same decision while considering the
       question as to whether offence underS.307of the Indian Penal
       Code can be quashed on the ground of compromise, it has been
       observed that:" Finding an answer to this question becomes imperative as
       the philosophy and jurisprudence of sentencing is based
       thereupon. If it is heinous crime of serious nature, then it has to
       be treated as a crime against the society and not against the
       individual alone. Then it becomes the solemn duty of the State to
       punish the crime doer. Even if there is a settlement/compromise
       between the perpetrator of crime and the victim, that is of no
       consequence.    Law prohibits certain acts and /or conduct and
       treats them as offences.    Any person committing those acts is
       subject to penal consequences which may be of various kind."16.    In the same decision it has been held that:" Therefore, in respect of such offences which are
       treated against the society, it becomes the duty of the State to
       punish the offender.     Thus, even when there is a settlement
       between the offender and the victim, their will would not prevail as
       in such cases the matter is in public domain. Society demands
       that the individual offender should be punished in order to deter
       other effectively as it amounts to greatest good of the greatest
       number of persons in a society."6.     However, this Court in Manoj's case (Supra) further

held in paragraph 17 that it has also been laid down by the Apex

Court inNarinder Singh's case supra that, there may be, offences

falling in the category where "correctional" objective of criminal

law would have to be given more weightage in contrast withCRL.M.C. No.2409 of 2015         7"deterrence" philosophy.     Punishment, whatever else may be,

must be fair and conducive to good rather than further evil and if

in a particular case, the Court is of the opinion that the

settlement between the parties would lead to more good, better

relations between them; would prevent further occurrence of

such encounters between the parties, it may hold settlement to

be on a better pedestal and that it is a delicate balance between

the two conflicting interests which is to be achieved by the Court

after examining all these parameters and then deciding as to

which course of action it should take in a particular case."7.     Accordingly, on the basis of the aforesaid ruling of the

Apex Court inNarinder Singh's case (supra), this Court in Manoj's

case (supra) held that ordinarily, the impugned proceedings

therein cannot be quashed merely on the basis of settlement. But

however, it was noticed therein that there was exceptional

circumstances in the case of one of the accused therein, viz., A6

in as much as he had got a Government employment and that

with a view to give him an opportunity to reform himself and

settle in life, this Court would exercise its extra ordinary

discretion conferred underSection 482of Cr.P.C. so as to quash

the impugned criminal proceedings as against the said accusedCRL.M.C. No.2409 of 2015               8alone.Paragraph 19 of Manoj's case (supra) reads as follows:-''19.  So under the circumstances this Court feels that it is
      not a fit case to quash the proceedings as against all the accused
      persons merely on the ground that it was settled between the parties
      especially when it is a political clash and grave offences have been
      incorporated. But, as far as the 6th petitioner is concerned, it is seen
      that he has got an employment now and he is undergoing training
      which is evident from Annexure -IV letter. It is true that this Court
      has in one writ petition observed that criminalisation in service has to
      be
      consequences, under the blind beliefhad politics involved in this
            eliminated.     This   petitioner        without     knowing    the
                                                 of
      incident and he has no other criminal background as well. If this
      opportunity is denied to him, he is likely to get frustration in life and
      that may lead to other consequence as well. So giving an opportunity
      to man to reform himself, correct himself and lead a good life always
      must be the policy in criminal matters if the Court is of the opinion
      that, that will give him a better thinking in his future life. So hoping
      that this will be a lesson for him that involving in criminal activities
      on the basis of politics without knowing his responsibility to the
      society will land him in trouble in future and hoping that he might
      have understood consequences of his act and considering the nature
      of overt act alleged against him shows that he has no intention to
      commit grave offence alleged, this Court feels that taking this as an
      exceptional circumstances, composition as regards the 6th petitioner
      alone can be accepted for the purpose of quashing the proceedings
      invoking the power under S.482 of the Code under the hope that he
      might have understood the consequences of his act and that he will
      not repeat the same even after he is getting an employment and he
      will work for the society as a Government servant and not as a
      political servant of any particular party. So under the circumstance,
      this Court feels that this is not a fit case to quash the entire
      proceedings as against all the petitioners especially when it is a
      political clash between two groups and such clash are causing threat
      to life of persons belonging to both groups and also considering the
      fact that some of the accused are accused in other cases as well. But
      taking an exceptional circumstance, this Court feels that the power
      can be exercised only in respect of 6th petitioner alone as he has got
      an employment and as an opportunity to reform himself and settle in
      life. So the application is allowed in part. The prayer of quashing the
      proceedings as against the petitioners 1 to 5 and 7 (as per clause
      title 1 to 3,5,6 and 8) is rejected and proceedings as against the 6th
      petitioner namely Renjith Kumar alone is quashed and further
      proceedings in SC No.1065/13 as against the petitioner namely
      Renjith Kumar (Crime No.299/2011 of Poochakkal Police Station)
      pending before Additional Sessions Court No.III, Alappuzha alone is
      quashed and the prayer to quash in respect of other petitioners is
      rejected.''

      According this Court in Manoj's case (supra), while rejectingCRL.M.C. No.2409 of 2015         9the prayer to quash the proceedings against all other accused in

the case, allowed the application in part to the extent of quashing

the impugned criminal proceedings as against the said accused

No.6 therein who had secured a Government employment.8.     On a consideration of the facts of this case, this Court

is of the considered opinion that going by the materials on record

as well as various attendant circumstances brought to notice by

the parties concerned, the facts of the case of the petitioner

herein (A-5) are quite similar to the one dealt with the case of the

accused in Manoj's case (supra) wherein this Court had quashed

the impugned criminal proceedings to the limited extent, it

affected that accused therein alone. It has been brought to the

notice that based on the stay order granted by this Court, the

petitioner herein who had secured employment in the State Bank

of Travancore has been allowed to continue his service. It is not

in dispute that the petitioner belongs to a socially and

economically weaker section of the society and he had secured

the job as a peon in the Bank and that he has no previous

criminal antecedents. Therefore, as held by this Court in Manoj's

case (supra), he has been fortunate enough to get a Government

job and therefore, this Court could take a view that anCRL.M.C. No.2409 of 2015         10opportunity should be given to correct and reform himself and

settle in life.   In this view of the matter, it is ordered in the

interest of justice that the impugned criminal proceedings at

Annexure II (arising out of Annexure I FIR), which has led to the

pendency of C.P.No.4/2015 on the file of the Judicial First Class

Magistrate Court - I, Aluva and all other proceedings taken in

pursuance thereof will stand quashed as against the petitioner

alone. It is made clear that none of the observations in this order

will any manner affect the trial as against the other accused,

which has to proceed untrammelled and uninfluenced by any of

the observations of this order.With these observations and directions, the Criminal

Miscellaneous Case stands finally disposed of.Sd/-ALEXANDER THOMAS
                                          JUDGE

                                   // True Copy //

                                    P.A. To Judge




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