Dismissed

Vinu and Another v. Nijo.P.Thambi and Another

Kerala HC24 Sept 2008Crl.MC/3491/2008

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a Criminal Misc. Case seeking to quash an FIR alleging robbery under Sections 34, 394 IPC. Despite claims of settlement and the private complaint's waiver, the court held that non-compoundable offences cannot be quashed merely on the basis of private settlement against the State's interests.

What did the court decide?

None. The application to quash the crime registered is dismissed.

Vinu and Another Vs Nijo.P.Thambi and Another — Property and Title | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 24TH SEPTEMBER 2008 / 2ND ASWINA 1930

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Crl.MC.No. 3491 of 2008()

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CRIME NO.383/08 OF THE THRISSUR TOWN EAST POLICE STATION

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PETITIONER(S):

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VINU, S/O.RAJAN, PAREMAL HOUSE PULLAZHI PO., OLARIKKARA, THRISSUR.

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JITHESH.T.R., S/O.T.C.RADHAKRISHNAN THEKKOTTUKALARICKAL HOUSE KUTTUMUKKU, THRISSUR.

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BY ADV. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA

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RESPONDENT(S):

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NIJO P. THAMBI, S/O. THAMBI, PULIKOTTIL HOUSE, WARRIAM LANE, PUTTURAICKAL, THRISSUR.

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STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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ADV. SRI.M.REVIKRISHNAN FOR R PUBLIC PROSECUTOR SRI.S.U. NAZAR.

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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R. BASANT, J.

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------------------------------------------------Crl.M.C. No.3491 of 2008

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Dated this the 24^th day of September, 2008

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ORDER

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The petitioners are the accused persons in Crime No.383/08 of the Thrissur Town East Police Station. Respondent No.1 is the de facto complainant in that crime. That crime is registered alleging the offence punishable under Sec.394 read with Sec.34 IPC. The crux of the allegations is that on the night of 5/6/08 at about 9 p.m. when the de facto complainant – a Priest, was present at a public place, he was attacked and assaulted and a gold ring worn by him and a mobile phone possessed by him were forcibly removed from his possession by the two unidentified persons. The crime was registered at 9.30 a.m. on 6/6/08. Investigation is in progress.

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In the course of investigation, it is now alleged that the petitioners are the persons responsible for the commission

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of the crime. Both of them are persons who have just completed 20 years and are students. The allegedly robbed articles have already been seized by the police. The de facto complainant/the 1^st respondent and the petitioners have now come before this Court to report to this Court that they have settled all their disputes. The 1^st respondent has compounded the offence allegedly committed by the petitioners. He does not, in these circumstances, want to prosecute the petitioners. It is prayed that the settlement and the composition may be accepted and the crime registered may be quashed invoking the extraordinary inherent jurisdiction under Sec.482 Cr.P.C. as enabled by the dictum in Madhan Mohan Abbot v. State of Punjab (2008 AIR SCW 2287).

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The learned counsel for the petitioners submits and the learned counsel for the 1^st respondent accepts and endorses such submission that the accused persons appear to have committed the crime as a matter of momentary indiscretion allegedly under the influence of alcohol and that they deserve the compassion and concern of the system. The case may not be proceeded against them. A lenient view may be taken and the crime registered may be quashed, it is prayed.

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The offence alleged is not compoundable. Under

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Sec.320 Cr.P.C. composition of such offence is impermissible. The learned counsel for the contestants rely on the decisions of the Supreme Court in B.S. Joshy v. State of Haryana (AIR 2003 SC 1386); Madhan Mohan Abbot v. State of Punjab (2008 AIR SCW 2287) and Nikhil Merchant v. C.B.I. (2008 (3) KLT 769 (SC)) to impress upon this Court that this Court has got the duty now to take note all ground realities. An unnecessarily technical view should not be taken by this Court. The interests of profitable deployment of the time of the police and the judicial functionaries will have to be taken into consideration. In any view of the matter, continuing with the investigation and prosecution will be no avail or use for any one concerned. It would only work out hardship, difficulties, harassment and embarrassment to the petitioners. In these circumstances, the crime registered may be quashed, it is prayed.

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The learned Public Prosecutor opposes the application. The learned Public Prosecutor submits that though the powers under Sec.482 Cr.P.C. are awesome, it cannot normally be invoked as a matter of course to accept composition of noncompoundable offences. The allegations in this case are serious. There is nothing personal or private between the petitioners and the 1^st respondent. The crime allegedly committed by the

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accused in this case is really one against the society at large though the 1^st respondent who happens to be present at the scene and at the receiving end of the crime committed. It would be gross dereliction of duty on the part of the police not to continue and complete the investigation. It will not advance the interests of justice. On the contrary, it would defeat the interest of public justice if police were not permitted to complete the investigation in a case where serious allegations are raised.

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Submissions have been made at the Bar about the circumstances under which the complicity of the petitioners were revealed to the police and the honest persuasions of the petitioners as well as the parents of the petitioners. I shall not advert to that in detail and encumber the records by making any observations which may virtually be made use of in the prosecution against the petitioners. Suffice it to say that I am not persuaded to agree at all that this is a fit case where the extraordinary inherent jurisdiction under Sec.482 Cr.P.C. can or ought to be invoked in favour of the petitioners. I have in the decisions in Santhosh v. State of Kerala (2008 (3) KLT 240) and Babeesh @ Babin Kumar v. S.I. of Police (2008 (3) KHC 713) already adverted to the challenge before a court attempting to apply the dictum in Madhan Mohan Abbot v. State of

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Punjab (2008 AIR SCW 2287). Such powers are not to be invoked readily as soon as the victim and the alleged offenders report to the court that they have settled their dispute and they have no grievance whatsoever in respect of the alleged noncompoundable crime. Acceptance of such over simplified stand would lead to the de facto complainant being prevailed upon either by persuasions or by threat to compound the offences against the interests of the State – the real aggrieved in all crimes.

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I am, in these circumstances, satisfied that this Crl.M.C. only deserves to be dismissed. The learned counsel for the petitioners submits that the petitioners intend to move for anticipatory bail. I make no observations on this aspect. All rights of the petitioners, under law, shall remain unfettered by the dismissal of this Crl.M.C.

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