Allowed

Muhammed Kunhi v. State of Kerala

Kerala HC22 Nov 2016Crl.MC/5464/2016

Case brief

AI extract

What is this about?

The Kerala High Court quashed criminal proceedings under Sections 341, 324, and 307 IPC initiated by the petitioner himself. Relying on Supreme Court precedents, the court held that even in heinous offences, if the chance of conviction is remote and a settlement exists between family members, the inherent powers under Section 482 CrPC allow quashing to restore harmony.

What did the court decide?

Petition allowed; FIR in Crime No.425 of 2016 and all subsequent proceedings quashed.

Muhammed Kunhi Vs State of Kerala — Murder and Culpable Homicide | Kerala HC (2016)

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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 RAJA VIJAYARAGHAVAN V

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TUESDAY, THE 22ND DAY OF NOVEMBER 2016/1ST AGRAHAYANA, 1938

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Crl.MC.No. 5464 of 2016 ()

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CRIME NO. 425/2016 OF HOSDURG POLICE STATION , KASARGOD

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PETITIONER/INFORMANT-VICTIM:

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MUHAMMED KUNHI

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AGED 42 YEARS, S/O. ABDURAHIMAN, EARTHU HOUSE, RAHMATH ROAD, POOCHAKKAD, KEEKAN P.O., PALLIKKARA, KASARAGOD.

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BY ADVS.SRI.S.RAJEEV

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SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE

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RESPONDENTS/COMPLAINANT & STATE :

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STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. (CRIME NO.425/2016 OF HOSDURG POLICE STATION, KASARAGOD).

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*ADDL. R2 TO R4 IMPLEADED

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ADDL.R2: MOHAMMED ARSHAD T, S/O ABDUL KAREEM, FOUSIYA MANZIL, MURIYANAVI, KANHANGAD, KASARAGOD 671315. ADDL.R3: MOHAMMED SAFWAN, S/O AHAMMED SHAFI, SUHAIB MANZIL, KALLARUVI, KANHANGAD, KASARAGOD 671315. ADDL.R4: MOHAMMED ASHKAR, S/O HAMEED, MURIYANAVI (H), KANHANGAD, KASARAGOD 671315.

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*ARE IMPLEADED AS ADDITIONAL RESPONDENTS 2 TO 4 AS PER ORDER DATED 9.11.2016 IN CRL.MA.11850/2016 IN CRL.MC 5464/16.

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R2-4 BY ADV. SRI.VINOD KUMAR.C R1 BY PUBLIC PROSECUTOR SRI. T.R. RENJITH

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 5464 of 2016 () ---------------------------

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APPENDIX

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PETITIONER'S' ANNEXURES

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ANNEXURE I CERTIFIED COPY OF CRIME NO.425/2016 OF HOSDURG POLICE STATION.

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ANNEXURE II AFFIDAVIT DATED 4.7.2016 SWORN BY THE PETITIONER.

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ANNEXURE III AFFIDAVIT DATED 4.7.2016 SWORN BY THE WIFE OF THE PETITIONER.

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RESPONDENTS' ANNEXURES: NIL

TRUE COPY

P.A. TO JUDGE.

RAJA VIJAYARAGHAVAN.V., J

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Crl.M.C. No. 5464 of 2016

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- - - - Dated 22^nd November, 2016

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ORDER

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1.This petition is filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the Code) with a prayer to invoke the extraordinary inherent powers and to quash the pending criminal proceedings.

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2.The petitioner is the de facto complainant in Crime No.425 of 2016 of Hosdurg Police Station. At his instance the aforesaid crime has been registered alleging offences punishable under Sections 341, 324 and 307 read with Section 34 of the IPC. Additional respondents 2 to 4 are accused in the aforesaid case.

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3.Prosecution alleges that on 5.7.2016 at 9 pm, respondents 2 to 4 trespassed into the Tharavad house of the wife of petitioner and thereafter inflicted serious injuries on his abdomen.

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Crl.M.C. No.5464 of 2016 -2-

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4.Heard the learned counsel appearing for the petitioner, respondents 2 to 4 as well as the learned Public Prosecutor.

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5.It is submitted by the learned counsel for the petitioner that the incident had happened between the family members in pursuance to a misunderstanding which crept in between the petitioner and his brother-in-law. There occurred a wordy altercation and it is stated that the petitioner had fallen down and sustained injuries.

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6.The learned Public Prosecutor on instructions submitted that the offence under Section 307 of the IPC falls in the grave category and cannot be quashed on the ground of compromise.

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7.I have considered the submissions.

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8.This is an unusual case in which the de facto complainant has himself approached this Court to quash the proceedings initiated at his instance. Admittedly, the respondents 2 to 4 are the near relatives of the

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petitioner. He asserts in Annexure-II affidavit that the parties are living in peace and harmony and the termination of the proceeding is inevitable to maintain the cordial relationship.

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9.In Gian singh v. State of Punjab [(2012) 10 SCC 303] Apex Court has laid down that in appropriate cases, the High Court can take note of the amicable resolution of disputes between the victim and the wrongdoer to put an end to the criminal proceedings. It was observed as

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follows :

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“61. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceedings or continuation of criminal proceedings would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceedings.”

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Crl.M.C. No.5464 of 2016

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-4-

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10.The aforesaid dictum stands reiterated by the Apex Court

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in Narinder Singh v. State of Punjab [(2014) 6 SCC 466], in which case the accusation involved offence under Section 307 of the IPC as well. After exhaustively considering the various aspects, it was observed as follows in paragraph No.29 of the judgment.

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XXXXXXXXXXXX

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29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:

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(i) ends of justice, or

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(ii) to prevent abuse of the process of any court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.

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Xxx xxx

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29.6 Offences under S.307 IPC would fall in the category of heinous and serious offences and therefore is to be generally treated as crime against the society and not against the individual alone. 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

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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 proving 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. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the later case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship

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xxxxx

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11.In Yogendra Yadav and Others v. State of

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Jharkhand and Another [2014(9) SCC 653], the Apex Court had occasion to take note of the compromise arrived

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at between the injured and the accused in a case involving Section 307 of the IPC and had quashed the proceedings.

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12.In Narinder Singh and Yogendra Yadav (supra), the Supreme Court had held that even in cases where Section 307 of the IPC is incorporated, this Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case, it can refuse to accept the settlement and quash the criminal proceedings whereas in the later case it would be permissible for the High Court to accept the plea of compounding the offence based on complete settlement between the parties. It was held that at that stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship.

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13.In view of the binding precedents of the Apex Court and after examining the facts of the instant case, this Court is of the view that the chance of conviction is remote. It also

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does not appear that the offence will have a serious impact on the society. Having taken all these factors into consideration, I am of the considered view that this Court will be well justified in invoking its extra ordinary powers under Section 482 of the Code to quash the proceedings. In the result, this petition will stand allowed. Annexure-I FIR in Crime No.425 of 2016 of Hosdurg Police Station and all proceedings pursuant thereto are quashed.

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Sd/- RAJA VIJAYARAGHAVAN.V., JUDGE

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kp/-22.11.16

Muhammed Kunhi v. State of Kerala

Case brief

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Muhammed Kunhi v. State of Kerala

Case brief

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