IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN MONDAY, THE 14TH DAYOF JULY 2014/23RD ASHADHA, 1936 Crl.MC.No. 2105 of 2014 CRIME NO. 299/2011 OF POOCHAKAL POLICE STATION , ALAPPUZHA PETITIONERS:ACCUSED NOS.1 TO 7: 1. MANOJ, AGED 38 YEARS, RAGHAVAN PILLAI, PAZHAYAMKUZHY HOUSE, WARD NO.VII, THYCATTUSSERI PANCHAYATH, CHERTHALA, ALAPUZHA. 2. MAHESH, AGED 31 YEARS, MDHAVAN PILLAI, KUNNEPPALLY HOUSE, WARD NO.VII, THYCATTUSSERI PANCHAYATH, CHERTHALA,ALAPUZHA. 3. MAHESH KUMAR, AGED 35 YEARS, REGHUNATHA PILLAI, SANTHA NIVAS, WARD NO.IV, THYCATTUSSERI PANCHAYATH, CHERTHALA, ALAPUZHA. 4. MANOJ KUMAR, AGED 31 YEARS, RAJAN PILLAI, KORAMPARAMBU VEEDU, WARD NO.VII, THYCATTUSSERI PANCHAYATH, CHERTHALA,ALAPUZHA. 5. RAJU, AGED 39 YEARS, KARUNAKARA PILLAI, EDAYEZHATHU VEEDU, WARD NO.V, THYCATTUSSERI PANCHAYATH, CHERTHALA,ALAPUZHA. 6. RENJITH KUMAR, AGED 33 YEARS, REGHUNATHA PILLAI, SANTHA NIVAS, WARD NO.IV, THYCATTUSSERI PANCHAYATH, CHERTHALA, ALAPUZHA. 7. VINOD KUMAR, AGED 33 YEARS, CHANDRAN PILLAI, KANNATTU HOUSE, WARD NO.VII, THYCATTUSSERI PANCHAYATH, CHERTHALA, ALAPUZHA. BY ADV. SRI.B.PRAMOD Kss 2/- 2 Crl.M.C.No.2105/2014 RESPONDENTS/COMPLAINANT & INJURED: 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SATHEESAN PILLAI,AGED 42 YEARS, RAGHAVAN PILLAI, IDAYEZHATHU HOUSE, WARD NO.IV, THYCATTUSSERI PANCHAYATH, CHERTHALA, 688 524. 3. SURESH, AGED 40 YEARS, S/O.GOPALAKRISHNAN, KORANIYIL VEETTIL, WARD NO.III, THYCATTUSSERI PANCHAYATH, CHERTHALA - 688 524. R1 BY PUBLIC PROSECUTOR SMT.P.MAYA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25/06/2014, THE COURT ON 14/07/2014 PASSED THE FOLLOWING: Kss Crl.MC.No. 2105 of 2014 APPENDIX PETITIONER(S)' ANNEXURES: ANNEXURE 1. COPY OF THE CHARGE SHEET IN CRIME NO.299/11 OF POOCHACKAL POLICE STATION. ANNEXURE II. AFFIDAVIT OF THE 2ND RESPONDENT. ANNEXURE III AFFIDAVIT OF THE 3RD RESPONDENT. ANNEXURE IV. COPY OF THE ADVICE MEMO DATED 24.02.14 ISSUED TO THE 6TH PETITIONER. RESPONDENT(S)' ANNEXURES: N I L /TRUE COPY/ P.S.TOJUDGE Kss [ENTITY], J. [CASE NUMBER] Dated this the 14th day of July, 2014. O R D E R
This Criminal Miscellaneous Case is filed by the petitioners, who are accused 1 to 7 in [CASE NUMBER] of Poochackal police station of Alappuzha district to quash the proceedings on the basis of a settlement under [SECTION] of the [ACT] (hereinafter referred to as 'the Code').
2. It is alleged in the petition that the petitioners were arrayed as accused 1 to 7 in [CASE NUMBER] of Poochackal police station alleging commission of offences punishable under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] (wrongly shown as [SECTION] in the synopsis and statement of facts) and [SECTION] read with [SECTION] of the [ACT] and [SECTION] of the [ACT]. They are really innocent and they have been falsely implicated in the case. The defacto complainant and the injured are DYFI workers, Communist Party of India (Marxist) sympathizers while the petitioners belong to Rashtirya Swayam Sevak Sangh and sympathizers of Bharathiya Janatha Party. There is no public interest involved and it is a private dispute, which resulted in the criminal case.
3. The matter has been now settled between the parties. No purpose will be served by proceeding with the case and pendency of the crime will have some adverse impact on their employment prospects and they are seeking for employment now. The 6th petitioner ([ENTITY]) has now been advised by the Kerala Public Service Commission for the post of Fireman Driver cum Pump Operator in Fire and Rescue Services Department and if the prosecution of the case is not terminated, he will not be given appointment. Since some of the offences are non compoundable in nature and it is in the crime stage, the court will not quash the proceedings. So, the petitioners have no other remedy except to approach this Court seeking the following reliefs:
"For the grounds mentioned above and for other grounds that may be urged at the time of arguments, it is most respectfully prayed that this Hon'ble Court may be pleased to quash Annexure-I charge sheet and all proceedings based on the same".
4. On the basis of the allegations in the petition, the Public Prosecutor was directed to file a statement regarding the antecedents of the petitioners and their involvement in other criminal cases and accordingly, the Circle Inspector of Police, Cherthala has filed a statement, which reads as follows:
"1. It is respectfully submitted that, the above writ petition has ben filed by the petitioner for quashing the charge sheet in [CASE NUMBER] of Poochakkal Police Station.
2. It is submitted that ,on 16.5.2011 at about 20.45 hrs, the petitioners 1 to 7 formed themselves into an unlawful assembly, armed with deadly weapons like sword stick, iron rode and wooden stick, assaulted and attempted to kill the 2nd respondent [ENTITY] and 3rd respondent [ENTITY], due to political enmity. The 2nd and 3rd respondents sustained serious injuries all over their body. A case as [CASE NUMBER] u/[SECTION], [SECTION], [SECTION], [SECTION], [SECTION] [ACT] and [SECTION] [ACT] w as registered on 17.5.2011 at 02.00 hrs by ASI Sri,. [ENTITY], on the basis of the statement of 2nd respondent [ENTITY]. This being a grave crime, the then Circle Inspector of Police, Cherthala Sri.[ENTITY] conducted the investigation of the case.
3. It is submitted that, the Circle Inspector of Police, Cherthala conducted the investigation of the case and arrested all the accused involved in the case, seized the weapons on 23.5.2011. In his investigation, all the accuse are having active role in the commission of the offence. A2 [ENTITY] was the person who chopped on the back of the 2nd respondent using stick sword. The investigation of th case was completed and the case was charged sheeted on 8.8.12 and the same is under trial as [CASE NUMBER] at the Honourable Sessions Court, Alappuzha.
4. it is submitted that, the only reason for this case was political enmity of the petitioners, who are the activists of RSS, towards the respondents 2 and who are CPM activists. This incident leads to a major law and order situation in that area, which affected the peaceful life of the common man.
5. Petitioners are used to create law and order sitatui0n in that locality and another case was also registered against 2nd petitioner [ENTITY], 3rd petitioner [ENTITY], 6th petitioner [ENTITY], and 8th petitioner [ENTITY]. In that case, the above petitioners along with 6 others a formed themselves into an unlawful assembly armed with deadly weapons and trespassed into the compound of one [ENTITY], who is an activist of CPM, assaulted him and committed mischief to his house and his neighbour's house. As per the statement [ENTITY], a case was registered against them on 16.5.2011 as [CASE NUMBER] u/[SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] [ACT] and the investigation of the case completed and charge sheeted on 30.6.2011. The case is under trial at the Honourable Judicial First Class Magistrate Court- II, Cherthala as [CASE NUMBER].
6. It is submitted that, all the petitioners are having violent politics and they always tries to attack the opposite political party activists. This always ends in political clashes and thereby creates law and order situation in that locality. This will adversely affect the peaceful life of common man.
7. In this circumstances, it is most humbly submits that the petition of the petitioners may kindly be dismissed and the cases against the petitioners may kindly be tried, so that the peaceful life of the common man in that area can be kept".
5. A report has been called for from the Sessions Court as to whether final report has been filed in this case and the learned Sessions Judge has sent a report stating that after committal, the case has been taken on file as [CASE NUMBER] and pending before the Additional Sessions Court-III, Alappuzha.
6. Heard the counsel for the petitioners and the learned Public Prosecutor.
7. The counsel for the petitioners submitted that it is true that there are some cases against some of the petitioners and it is a political clash. Now the parties have changed their mind and in order to bring harmony in the society, decided to settle the issues between them and the injured do not want to prosecute the petitioners. Further, the 6th petitioner (though it is corrected as 7th petitioner, as per order in [CASE NUMBER], in fact he is 6th petitioner only as in the cause title, in the serial number after 3, 5 was typed), has now got an employment and he is undergoing training as Fireman Driver cum Pump Operator in Fire and Rescue Services Department evidenced by Annexure-IV memo and if this case is not quashed, he is likely to lose his employment. Further, the nature of allegations made against him is not that of grave and he has no previous criminal antecedents as well. Further, on account of the fact that the matter has been settled, allowing the prosecution to continue will only amount to wastage of judicial time and in view of the dictum laid down in [ENTITY]h v. State of Punjab [2012 (4) KLT 108(SC)], if the matter has been settled between the parties, then there is no necessity to allow the case to continue as it will only amount to wastage of judicial time. So, according to him, it is a fit case where power under [SECTION] of the Code has to be invoked to quash the proceedings.
8. On the other hand, the learned Public Prosecutor submitted that if a liberal view is taken in such matters, then it will give a wrong message to the society. The Hon'ble Supreme Court never intended to quash the proceedings were public interest is involved and in political clashes etc. So, it is not a fit case where power under [SECTION] of the Code has to be invoked.
9. Heard both sides and perused the case diary file.
10. It is an admitted fact that on the basis of the statement given by the defacto complainant namely the second respondent herein, a crime was registered as [CASE NUMBER] of Poochakal police station alleging offences under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] of the [ACT] and [SECTION] of the [ACT] against 7 named persons and 43 identifiable persons. The case of the prosecution was that, on 17.5.2011 at about 9.15 p.m, while the defacto complainant, the second respondent and the third respondent were standing on the side of the road at the place of occurrence, the accused persons who belong to Rashtriya Swayam Sevak Sangh and sympathizers of Bharathiya Janatha Party came in a procession holding dangerous weapons like iron rod, sword, sticks etc and on seeing the defacto complainant and another injured, they shouted that they belong to Marxit party goondas and attacked them with deadly weapons and caused injuries on their vital parts and thereby all of them have committed the offences punishable under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] of the [ACT] and [SECTION] of the [ACT]. After investigation, final report was filed against the present seven persons alleging the above offences and it was taken on file as [CASE NUMBER] on the file of the Judicial First Class Magistrate Court-II, Cherthala and the learned Magistrate committed the case to the Sessions Court and the Sessions Court has, after committal, taken cognizance of the case as [CASE NUMBER] on 28.12.2013 and made over to the third Additional Sessions Court, Alappuzha and the case is now pending before that court. According to the petitioners, they have not involved in the crime and they have been falsely implicated in the case and respondents 2 and 3 had understood the mistakes and so they wanted to terminate the prosecution at the earliest possible time against the petitioners. So they have settled the issues and filed affidavit stating those facts. It is also alleged in the petition as well as in the affidavit that they have given the names of the petitioners under misconception and now they realised that the petitioners have not involved and they are innocent. On that basis that the petitioners have now come before this Court quashing the proceedings invoking [SECTION] of the Code.
11. It is true that the Supreme Court has in some cases held that in appropriate cases the court can invoke the power under 482 of the Code even to quash the proceedings in which non compoundable offences were incorporated. I may consider some of those decisions which I feel necessary for consideration to decide the question in this case.
12. In the decision reported in [ENTITY]'s case (cited supra) the three Judges Bench of the Hon'ble Supreme Court has considered the nature of cases where the court can invoke the power under [SECTION] of the Code and quash the proceedings in which non compoundable offences are incorporated. The principle has been summarized in that decision as follows:
"The position that emerges from the above discussion can be summarised thus: The power of the High Court in quashing a criminal proceeding or F.I.R 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 [SECTION] 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 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 of 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 [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 transaction 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 question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."
13. The Hon'ble Supreme Court has discussed all the previous decisions namely [PRECEDENT], [PRECEDENT]] and [ENTITY] Sharma v. State and Others [2008 (4) KLT 417(SC)] as well in the above decision. It is clear from the above decisions that though in certain cases, the cases could not be compounded invoking the power under [SECTION] of the Code as they were not compoundable offences, but in appropriate cases, the power under [SECTION] of the Code can be invoked to quash such proceedings. In the same decision, it has been observed that it is for the court to consider the facts and circumstances of the case and no category of cases can be prescribed for this purpose. It is also observed in the same decision that 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 [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 transaction 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. It is clear from the above decisions that the High Court should not quash all type of criminal cases merely on the ground that the matter has been settled between the victim and the offender invoking the power under [SECTION] of the Code. The power under [SECTION] of the Code has to be used by the High Court very cautiously.
14. Further in the decision reported in [PRECEDENT] the Hon'ble Supreme 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 [SECTION] of the Code and quashing of criminal proceedings by the High Court in exercise of tis inherent jurisdiction conferred upon it under [SECTION] of the Code. Once, it is found that compounding is permissible only if a particular offence is covered by the provisions of [SECTION] of the Code and the Court in such cases is guided solitary and squarely by the compromise between the parties, in so far as power of quashing under [SECTION] 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 under [SECTION] of the [ACT] 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".
17. Further in the same decision it has been held that:
"On the other hand, there may be, offences falling in the category where "correctional" objective of criminal law would have to be given more weightage in contrast with "deterrence" philosophy. Punishment, whatever else may be, must be fair and conducive to good rather than further evil. 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. It is a delicate balance between the two inflicting 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."
18. In this case it is seen from the statement of the Circle Inspector of Police, Cherthala that the injured and the petitioners are sympathizers of two political parties namely Communist Party of India (Marxit) and Rashtriya Swayam Sevak Sangham which is having some allegiance with Bharathiya Janatha Party. It is also seen from the report of the Circle Inspector of Police that the second petitioner [ENTITY] and the third petitioner [ENTITY], 5th petitioner (wrongly shown in the cause title as 6th petitioner) [ENTITY] and 8th petitioner, who in fact as 7th petitioner [ENTITY], are accused in another case namely [CASE NUMBER] of Cherthala police station involving offences under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] of the [ACT] and that is pending as [CASE NUMBER]. It is also mentioned in paragraph-6 of the statement of the Circle Inspector of Police that all the petitioners are having violent politics and they always tried to attack the opposite political party's activists. This always ends in political clashes and thereby created law and order situation in the locality and this will adversely affect the peaceful life of common man. It is true that as often said there is no permanent enmity in politics. But, at the same time, politics is being used for violence as well and that creates fear in the mind of the people in the society. Political violence is created by the lower rank party workers and create unnecessary clashes and attack on the opposite group without any motive or personal animosity causing grave injuries to them and even death and causes unnecessary tension in the locality and causes threat to the public life. Though they may be recede from their activities for sometime, due to the intervention of all political party meeting called at the instances of law and order administrative machinery, such as, police and district administration, after sometime without any provocation the same process will continue again. This shows that there is no bonafides in their acts. If cases of this nature having public interest are allowed to be quashed on the basis of the settlement, then it will give a wrong message to the society and it will promote lawlessness in the society. Same is the case of habitual offenders, persons committing crimes as hired goondas without any motive or personal enmity but for money.
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 criminalization in service has to be eliminated. This petitioner had without knowing the consequences, under the blind belief of politics involved in this 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 consequences 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 circumstance, composition as regards the 6th petitioner alone can be accepted for the purpose of quashing the proceedings invoking the power under [SECTION] 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 circumstances, 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 cause title 1 to 3, 5, 6 and 8) is rejected and proceedings as against the 6th petitioner namely [ENTITY] alone is quashed and further proceedings in [CASE NUMBER] as against the th petitioner namely [ENTITY] ([CASE NUMBER] of Poochakkal Police station) pending before Additional Sessions Court No.III, Alapuzha alone is quashed and the prayer to quash in respect of other petitioners is rejected.
20. So, the application is allowed in part. The prayer for quashing the proceedings as against the petitioners 1 to 5 and 7 is rejected and proceedings as against the 6th petitioner namely [ENTITY] alone is quashed. So further proceedings in [CASE NUMBER] as against the 6th petitioner namely [ENTITY] ([CASE NUMBER] of Poochakkal Police station) pending before the Additional Sessions Court No.III, Alappuzha alone is quashed and the prayer to quash in respect of other petitioners is rejected.
Office is directed to communicate this order to the concerned court immediately.
[ENTITY], JUDGE.
cl /true copy/ P.S to Judge