Basheer & Others Vs State of Kerala

AGAINST THE JUDGMENT DATED 18.04.2007 IN SC NO.7 OF 2005 OF ADDITIONAL SESSIONS COURT, FAST TRACK COURT-III (ADHOC), MANJERI ARISING OUT OF CP NO.15 OF 2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,PARAPPANANGADI

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APPELLANTS/ACCUSED:

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1 BASHEER, S/O KUTTY RAYIN, RESIDING AT MANGADANCHERI HOUSE, OZHOOR AMSOM, THALAKKETTOR DESOM.

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2 SUBAIR, S/O.MUHAMMED, RESIDING AT KALLIYATT HOUSE, OZHOOR AMSOM, THALAKKETTOOR DESOM.

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3 MOIDEEN KUTTY, S/O.MUHAMMED RESIDING AT KALLIYATT HOUSE, OZHOOR AMSOM, THALAKKETTOOR DESOM.

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BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.P.A.HARISH SMT.MITHA SUDHINDRAN SRI.THOMAS J.ANAKKALLUNKAL

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RESPONDENTS/STATE & COMPLAINANT:

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1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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2 STATION HOUSE OFFICER, TANUR POLICE STATION, TANUR, MALAPPURAM DISTRICT.

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*3 SAIDALAVI, AGED 50 YEARS, S/O. KUNHUMOHAMMED, PODIYENGAL HOUSE, THALAKKETTOR, OZHUR P.O., MALAPPURAM DISTRICT.

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***(ADDL. R3 IMPLEADED AS PER ORDER DATED 10/8/2022 IN CRL.M.A. 1/22)**

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BY ADVS. SRI.G.SUDHEER, PUBLIC PROSECUTOR SRI.K.R.ARUN KRISHNAN

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.BABU, J.

Criminal Appeal No.734 of 2007

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Dated this the 1^st day of April, 2025

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JUDGMENT

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The appellants are accused Nos.1 to 3 in S.C No.7/2005 on the

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file of the Additional Sessions Court, Fast Track-III (Ad hoc), Manjeri. The offences originally alleged against the appellants as per the final report are punishable under Sections 323 and 326 read with Section 34 of the IPC.

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On the appearance of the accused, the learned Assistant Sessions Judge after hearing the prosecution and the accused framed the charges for offences under Sections 323, 326 and 307 read with Section 34 of the IPC.

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The prosecution case is that on 30.09.1998 at 8.30 a.m, the appellants/accused on account of their enmity voluntarily caused grievous hurt to PW4, with such intention and under such circumstances that if they by that act caused the death, they would be guilty of murder. The victim suffered depressed fracture at the

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left frontal bone in the incident.

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The Trial Court convicted appellant No.1/accused No.1 for the offences under Sections 307 and 326 of the IPC. The Court convicted appellant Nos.2 and 3/accused Nos.2 and 3 for the offence under Section 323 of the IPC. The Trial Court found appellant No.1 not guilty of the offence under Section 323 of the IPC. The Trial Court also found accused Nos.2 and 3 not guilty of the offences under Sections 326 and 307 of the IPC. The Trial Court sentenced appellant No.1 to undergo rigorous imprisonment for five years under Section 307 of the IPC and rigorous imprisonment for three years under Section 326 of the IPC. Appellant Nos.2 and 3 were each sentenced to undergo rigorous imprisonment for one year under Section 323 of the IPC.

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The appellants challenge the conviction and sentence in this Criminal Appeal.

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When the appeal was taken up for hearing, the appellants filed Crl.M.A No.1/2024 under Section 482 Cr.PC seeking to quash all further proceedings consequent to the final report in view of the

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settlement arrived at between the parties.

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I have heard both sides.

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The victim (PW4) was impleaded as additional respondent No.3. He filed an affidavit stating that the entire disputes between

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the parties have been settled and he has no grievance against the appellants.

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The learned Public Prosecutor, on instructions, submitted

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that the matter was enquired into through the Investigating Officer, who has taken the statement of the defacto complainant, and it is reported that the dispute between the parties has been amicably settled. The material placed before the Court shows that the entire dispute between the parties has been settled and the defacto complainant (PW4) has decided not to proceed further. The settlement between the parties is found to be voluntary and fair.

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In appropriate cases, the High Court could exercise its inherent powers under Section 482 Cr.PC to quash criminal proceedings in relation to non-compoundable offences, where the parties have settled the matter between themselves in the cases

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not falling within the category of serious offences or heinous

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offences. In Narinder Singh and others v. State of Punjab and

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Others [(2014) 6 SCC 466] on this subject the Apex Court held thus:

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“29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.

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29.6. Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore are 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 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 proving 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. 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 latter 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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29.7. While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement

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play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the chargesheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime.”

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11. In Gian Singh v. State of Punjab [(2012) 10 SCC 303] , the

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Apex Court held thus:

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“61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under S.320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such

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power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc., cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. 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 proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and 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

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question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.”

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In the present case, the appellants/petitioners face charge under Section 307 of the IPC also, which is treated as a heinous and serious offence by the Supreme Court in Narinder Singh and others.

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In State of Madhya Pradesh v. Lakshmi Narayan and Others [(2019) 5 SCC 688] , approving the ratio in Gian Singh and Narinder Singh a three-Judge Bench of the Apex Court held that in the exercise of powers under Section 482 Cr.P.C., on the ground that the parties have resolved their entire dispute between themselves, High Court would not rest its decision merely because there is a mention of a penal section of a heinous crime in the FIR or charge. The Apex Court added that it would be open to the High Court to examine as to whether incorporation of a penal section of heinous crime is there for the sake of it or the prosecution has collected sufficient evidence which if proved would lead to framing of charges under the said penal section.

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In Kapil Gupta v. State of NCT of Delhi and Another (2022

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SCC OnLine SC 1030) , following Narinder Singh and others (supra), the Apex Court held that though the Court should be slow in quashing the proceedings wherein heinous and serious offences are involved, the High Court is not foreclosed from examining as to whether there exists material for incorporation of such an offence or as to whether there is sufficient evidence which if proved would lead to proving the charge for the offence charged with. The Apex Court further observed that High Court has also to consider whether the settlement between the parties will result in harmony between them, which may improve their mutual relationship. The Supreme Court added that the stage of the proceedings at which the application for quashing the proceedings is brought before the Court is also to be taken into account.

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The learned counsel for the victim submitted that the parties are neighbours and the appellants had no intention to commit the aforesaid offences, but the overt acts happened while they were deprived of the power of self-control by way of a grave and sudden provocation.

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It is admitted by both sides that a sudden quarrel occurred in the place of occurrence. It is further admitted by the prosecution and the victim that the overt acts were committed by the appellants without any premeditation. The victim has filed an additional affidavit in support of the submission.

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The learned counsel for the appellants/petitioners submitted that the injuries noted by the doctor in Ext.P1 attract only the offence defined under Section 326 of IPC. Both sides now concede that the incident happened in the heat of passion upon a sudden quarrel. Therefore, I am of the considered view that the ingredients of the offence under Section 307 are not attracted. The ingredients of offence under Section 308 are only attracted.

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On a perusal of the materials, this Court further concludes that the appellants had no mens rea in the commission of the alleged offences. The parties are neighbours. In the affidavit the victim stated that he and the appellants are residing in the same locality and that no enmity survives among them. Their relationship at present is very cordial and loving. The victim further stated that

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a marriage is about to materialise between the family of the victim

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and the family of the appellants. The settlement or the compromise

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satisfies the conscience of the Court. The victim agreed to settle the matter with his free will.

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In Bitan Sengupta and Another v. State of West Bengal and

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Another [(2018) 18 SCC 366] , the Apex Court considered the acceptability of a settlement between the parties at the appellate

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stage (post conviction stage). The Apex Court in Bitan Sengupta

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(Supra) observed thus:-

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“7. In the aforesaid circumstances and going by the spirit of the law laid down by this Court in the cases of B.S Joshi & Ors. v. State of Haryana & Anr., we are of the opinion that the High Court should have accepted the settlement and compounded the offences. It is, more so, when the settlement between the parties, who were husband and wife, was even acted upon as the parties took mutual divorce on that basis.

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We accordingly, allow this appeal and set aside the order of conviction passed against the appellants.”

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This Court in Soban v. State of Kerala [ ILR 2021 (2) Ker.

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1212] has considered the power of the High Court under Section 482 Cr.P.C. to quash the proceedings and conviction in a case where the

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parties have arrived at a settlement. In Soban (Supra) this Court

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observed thus:

“10. It is settled that the plenary power possessed by the High Court u/S. 482 of Cr.PC are very wide, though to be exercised sparingly and with circumspection. It is equally settled that the said power could be exercised irrespective of the nature of the proceedings and concurrently with appellate or revisional jurisdiction Criminal proceedings commence from the lodging of FIR and would continue till the order of conviction, if passed, attains finality. When the order of conviction by the Trial Court is under challenge before the appellate or revisional Court, it cannot be said that the order of conviction did attain finality. The presumption of innocence would continue till the order of conviction attains finality despite the conviction by the trial Court. An appeal challenging the order of conviction has the effect of continuation of trial itself. Since the power u/S. 482 of Cr.PC is not controlled by S.320, such power could be exercised at any stage of the criminal proceedings including at the appellate or revisional stage. The section does not contemplate or specify any particular stage when the powers u/S. 482 could be invoked. S.320 also does not contemplate any stage or specific mode by which Court can permit compounding of the offences. Subsections (5) and (6) of S.320 permit composition of the offences even during appellate or revisional stage. Thus, there is no reason whatsoever to restrict exercise of powers u/s. 482 of Cr.PC. only to cases where an order of conviction was not passed. The inherent power u/S. 482 for quashing criminal proceedings being of a wide magnitude for being exercised with the object of securing the ends of justice, there cannot be limitation on such powers for being exercised only prior to conviction of an accused. Merely because the order of conviction was pending adjudication at the appellate or revisional stage, the same could not be a ground for refusing to exercise powers u/S. 482 of Cr.P.C. to quash the criminal proceedings especially when the parties to the dispute had arrived at a settlement. Hence, I hold that if requirements of S.482 of Cr.PC were satisfied in the sense that it was necessary to prevent abuse of the process of any Court or to secure the ends of justice, the criminal

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proceedings involving non-compoundable offence could be quashed notwithstanding the fact that the order of conviction was already passed against the accused provided offence in question does not fall in the category of offences prohibited for compounding in terms of the pronouncement of the Apex Court in Gian Singh (supra), Narinder Singh (supra) and Laxmi Narayan (supra).”

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Having regard to the nature and gravity of the offences

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alleged and the circumstances brought out, I am of the view that Crl.M.A No.1/2024 deserves to be allowed in view of the compromise arrived at between the parties, for the ends of justice.

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In the result Crl.M.A No.1/2024 is allowed. The entire proceedings initiated pursuant to the registration of Crime No.259/1998 of Tanur Police Station stand quashed. The conviction and sentence passed against the appellants vide the impugned judgment are also set aside. The Criminal Appeal stands disposed of as above.

Sd/K.BABU, JUDGE

KAS

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APPENDIX OF CRL.A 734/2007

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PETITIONER ANNEXURES

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Annexure A TRUE COPY OF THE AFFIDAVIT SWORN BY THE INJURED, EXAMINED AS PW3. Annexure B THE ADDITIONAL AFFIDAVIT SWORN BY THE DEFACTO COMPLAINANT/3RD RESPONDENT DETAILING THE ACTUAL CAUSE OF INCIDENT DATED 25.03.2025

Basheer & Others v. State of Kerala

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Basheer & Others v. State of Kerala

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