Kerala High Court
Shafi N.V vs State Of Kerala on 22 April, 2014
Author: K. Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
THURSDAY, THE 17TH DAY OF JULY 2014/26TH ASHADHA, 1936
Crl.MC.No. 3438 of 2014 ()
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SC.NO.190/2014 OF II ADDL.ASSISTANT SESSIONS COURT, KOZHIKODE
CRIME NO. 417/2012 OF PANNIANKARA POLICE STATION , KOZHIKODE
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PETITIONER(S)/ACCUSED NOS.1 TO 11 :
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1. SHAFI N.V.,AGED 26 YEARS,S/O.ALI,
NAVAS MANZIL, CHEMMALAKANDY PARAMBA,
P.O.ARTS COLLEGE, KOZHIKODE.
2. RATHEESH.P.,AGED 23 YEARS,S/O.RAVI,
PARACHOTTIL HOUSE, ARAKKINAR P.O.,
NADUVATTOM, KOZHIKODE.
3. ARUNLAL,AGED 24 YEARS, S/O.ARUMUGHAN,
SWARAJ BHAVAN, EDAKKARA P.O.,
THALAKULATHUR, KOZHIKODE.
4. JAIMON JOSE,AGED 22 YEARS,S/O.JOSE K.P,
KUZHAPPALLIYIL HOUSE, THAMARASSERY,
KOZHIKODE DISTRICT.
5. ANOOPKUMAR.N.,AGED 22 YEARS,S/O.MOHANAN,
NADUTHODI HOUSE, CHENGOTTUR AMSOM,
KARIYAL, TIRUR, MALAPPURAM DISTRICT.
6. BABILAL P.K.,S/O.KRISHNAN,AGED 24 YEARS,
POTHUMKUZHIKAATTIL HOUSE, VALLIKUNNU P.O.,
MALAPPURAM DISTRICT.
7. BIJESH,S/O.LAKSHMANAN,
UNNATHU PARAMBU HOUSE, VALLIYA PARAMBU P.O.
8. JITHIN A.V.,AGED 24 YEARS,
S/O.VIJAYAN A.V, AZHINHILAM, ERANAD TALUK,
MALAPPURAM DISTRICT.
9. AKHIL K.K.,AGED 23 YEARS,
S/O.SURENDRAN, GREENCE HOUSE, KARAPARAMBA,
VENGERI AMSOM, KOZHIKODE DISTRICT.
10. JAYESH,AGED 22 YEARS,S/O.NAGARJUN,
OTHAYOTH HOUSE, MANIPURAM P.O.,
KOZHIKODE DISTRICT- 08.
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-2-
CRMC.NO.3438/2014
11. SHAMEEM ABDU RAHIMAN,AGED 22 YEARS,
S/O.ABDURAHIMAN, VENGATHARAMMAL HOUSE,
PUTHUPPADI, KOZHIKODE DISTRICT.
BY ADV. SRI.P.V.KUNHIKRISHNAN
RESPONDENT(S)/DEFACO COMPLAINANT :
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1. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI -682 031.
2. AJMAL,AGED 20 YEARS,
S/O.ASHRAF, A.M HOUSE, AMAMKUNIVAYAL,
KUNDAYITHODU P.O, KOLATHARA, CHERUVANNUR AMSOM,
KOZHIKODE DISTRICT.PIN- 673 557.
3. ABDUL NOUFI, AGED 22 YEARS,
S/O.ABDUL MAJEED, KRISHNAPURAM THAZHAM, KAITHAKUNDU,
POOCHAL ROAD, IYKARAPADI P.O, CHERUKAVU PANCHAYATH,
MALAPPURAM DISTRICT.PIN- 671 123.
4. ABDUL RAFIH, AGED 22 YEARS,S/O.ABDUL MAJEED,
KRISHNAPURAM THAZHAM, KAITHAKUNDU,
POOCHAL ROAD, IYKARAPADI P.O, CHERUKAVU PANCHAYATH,
MALAPPURAM DISTRICT. PIN-671 123.
5. AMAL K.K., AGED 21 YEARS,
S/O.ASOKAN, MANALI HOUSE, CHETTIPPADI,
KUPPIVALAVU, MALAPPURAM DISTRICT,
NOW RESIDING AT SELINA QUARTERS, KOHINOOR,
CALICUT UNIVERSITY, KOZHIKODE -673 020.
6. USMAN, AGED 23 YEARS, S/O.SAYED KOYA,
MACHINGALAKATHU HOUSE, NADAKKAVU,
THANUR, THIRUR ROAD, MALAPPURAM DISTRICT-671 124.
7. K.M.ABIJITH,AGED 20 YEARS,
S/O.GOPALANKUTTY, KAPPIL HOUSE,
NEAR ATHOLI HIGH SCHOOL, P.O ATHOLI,
KOZHIKODE DISTRICT. PIN-673 012
8. N.P.HARSHAD,AGED 19 YEARS, S/O.HYDROS,
MOOTHANDEPURACKAL HOUSE, THANUR P.O.,
MALAPPURAM DISTRICT.PIN- 671 124.
R1 BY PUBLIC PROSECUTOR SMT. S.HYMA
R2 TO R8 BY ADV. SRI.P.V.ANOOP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 17-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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Crl.MC.No. 3438 of 2014 ()
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APPENDIX
PETITIONER(S)' ANNEXURES:
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ANNEX A. COPY OF THE POLICE CHARGE IN CRIME NO.417/2012 OF
PANNIANKARA POLICE STATION WHICH IS NOW PENDING AS S.C.
NO.190/2014 ON THE FILE OF SECOND ADDITIONAL ASSISTANT
SESSIONS JUDGE, KOZHIKODE.
ANNEX A1. COPY OF THE SUMMONS RECEIVED BY PETITIONER 2 IN SC.
NO.190/2014 ON THE FILE OF SECOND ADDITIONAL ASSISTANT
SESSIONS JUDGE, KOZHIKODE.
ANNEX A2. COPY OF THE SUMMONS RECEIVED BY PETITIONER 3 IN SC.190/2014
ON THE FILE OF SECOND ADDITIONAL ASSISTANT SESSIONS JUDGE,
KOZHIKODE.
ANNEX A3. COPY OF THE SUMMONS RECEIVED BY PETITIONER 4 IN SC.
NO.190/2014 ON THE FILE OF SECOND ADDITIONAL ASSISTANT
SESSIONS JUDGE, KOZHIKODE.
ANNEX A4. COPY OF THE SUMMONS RECIEVED BY PETITIONER 5 IN SC.
NO.190/2014 ON THE FILE OF SECOND ADDITIONAL ASSISTANT
SESSIONS JUDGE, KOZHIKODE.
ANNEX A5. COPY OF THE SUMMONS RECIEVED BY PETITIONER 6 IN SC
NO.190/2014 ON THE FILE OF SECOND ADDITIONAL ASSISTANT
SESSIONS JUDGE, KOZHIKODE.
ANNEX A6. COPY OF THE SUMMONS RECIEVED BY PETITIONER 7 IN SC
NO.190/2014 ON THE FILE OF SECOND ADDITIONAL ASSISTANT
SESSIONS JUDGE, KOZHIKODE.
ANNEX A7. COPY OF THE SUMMONS RECIEVED BY PETITIONER 8 IN SC
NO.190/2014 ON THE FILE OF SECOND ADDITIONAL ASSISTANT
SESSIONS JUDGE, KOZHIKODE.
ANNEX A8. COPY OF THE SUMMONS RECIEVED BY PETITIONER 9 IN SC
NO.190/2014 ON THE FILE OF SECOND ADDITIONAL ASSISTANT
SESSIONS JUDGE, KOZHIKODE.
ANNEX A9. COPY OF THE SUMMONS RECIEVED BY PETITIONER 11 IN SC
NO.190/2014 ON THE FILE OF SECOND ADDITIONAL ASSISTANT
SESSIONS JUDGE, KOZHIKODE.
ANNEX B. COPY OF THE AFFIDAVIT SWORN BY RESPONDENT NO.2 DATED
22.04.2014.
ANNEX B1. COPY OF THE AFFIDAVIT SWORN BY RESPONDENT NO.3 DATED
22.04.2014.
2/-
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CRMC.NO.3438/2014
ANNEX B2. COPY OF THE AFFIDAVIT SWORN BY RESPONDENT NO.4 DATED
22.04.2014.
ANNEX B3. COPY OF THE AFFIDAVIT SWORN BY RESPONDENT NO.5 DATED
22.04.2014.
ANNEX B4. COPY OF THE AFFIDAVIT SWORN BY RESPONDENT NO.6 DATED
22.04.2014.
ANNEX B5. COPY OF THE AFFIDAVIT SWORN BY RESPONDENT NO.7 DATED
22.04.2014.
ANNEX B6. COPY OF THE AFFIDAVIT SWORN BY RESPONDENT NO.8 DATED
22.04.2014.
RESPONDENT(S)' ANNEXURES: NIL
/TRUE COPY/
P.A.TO.JUDGE
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K. Ramakrishnan, J.
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Crl.M.C.No.3438 of 2014
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Dated this, the 17th day of July , 2014.
O R D E R
This is an application filed by the petitioners who are accused in S.C.No.190/2014 on the file of Second Additional Assistant Sessions Judge, Kozhikode to quash the proceedings on the basis of settlement under Section 482 of Code of Criminal Procedure.
2. It is alleged in the petition that petitioners have been arrayed as accused in S.C.No.190/2014 pending before Second Additional Assistant Sessions Judge, Kozhikode. The case was registered on the basis of the statement given by the second respondent as de facto complainant against the petitioners alleging offences under Sections 143, 147, 148, 341, 323, 324, 308, 506(1) read with 149 of Indian Penal Code. Respondents 2 to 8 are the de facto complainant and the other injured and eye witnesses to the incident. Petitioners and respondents were students and they belong to two student union and due to some misunderstanding between the rival student union, there was a clash occurred in the college premises, in which, respondents 2 to 8 sustained injuries. On Crl.M.C.No.3438 of 2014 : 2 : the basis of the statement given by the second respondent, a crime was registered as Crime No.417/2012 of Panniankara Police Station and after investigation, final report was filed and case was committed to the Court of Sessions, Kozhikode and it was taken on file as S.C.No.190/2014 and thereafter, it was made over to the Second Additional Assistant Sessions Court, Kozhikode for disposal. Third petitioner got an employment in military service and he is working there and the pendency of this case will affect his career adversely and further, the matter has been settled between the parties and the incident happened at the time when they were students and they have realized the mistake and on account of settlement, there is no possibility of conviction. Since the offences are non compoundable in nature, they could not file application for compounding before the concerned court. So, the petitioners have no other remedy except to approach this court seeking the following relief:
"Kindly quash the entire proceedings in S.C.No.190/2014 on the file of Second Additional Assistant Sessions Judge, Kozhikode, which arose from Crime No.417/2012 of Panniankara Police Station, Kozhikode (Annexure A) by allowing this Criminal Miscellaneous Case." Crl.M.C.No.3438 of 2014 : 3 :
3. Respondents 2 to 8 appeared through Counsel and submitted that the matter has been settled and they have no objection in quashing the proceedings.
4. A report has been called for regarding the antecedents and relationship between the parties and the Sub Inspector of Police, Panniankara Police Station had filed report which reads as follows:
"On 12.11.2012 at 17.00 hrs the SFI students of the Govt. Arts and Science College formed an un lawful assembly and wrongfully restraint the complainant on the road in front of the college, while the complainant was returning home after the class along with his friend and assaulted the complainant using iron rod on his face and neck and head from which the complainant had a narrow escape which would have ultimately led to the death of the complainant had he not escaped from the attack on the head etc. facts.
A case has been registered for the above incident as per the reference-2 cited and investigated by SI Panniyankara PS and charge sheeted which is under trial as SC No 190/14 of the Honourable II Additional Sessions Court, Kozhikode.
Even though the case was registered in connection with the rioting by the SFI students of the Govt. Arts and Science College Kozhikode the prime accused in the case Mr.Shafi S/o Ali is not a student of the college and he is working as the area secretary of the DYFI local unit. The accused numbered 6, 7 and 10 were the previous students of the college and the real of the accused are the accused activists.
The accused numbered 2, 4, 5, 8, 11 of this case are the SFI activists of this college and also they were the accused the Crl.M.C.No.3438 of 2014 : 4 : Panniyankara PS Cr.No.416/12 U/s 143, 147, 148, 341, 323, 324, r/w 149 IPC which was registered in connection with the assault by SFI students of the same college against KSU and MSF students on 12.11.2012 which was charge sheeted and is under trial in the Honourable Chief Judicial Magistrate Court as CC 538/12. In connection with the above incident conflict between DYFI and Youth League happened at Meenchanda Junction on 12.11.2012 and for that incident again a case was registered at Panniyankara PS Cr.No.419/12 U/s 143, 147, 341, 323, 294(b), 506(i) r/w 149 IPC which is under trial in the Honourable JFCM III Court Kozhikode in CC 19/13.
Due to the strong action taken by the Panniyankara Police in connection with the above incidents normally was registered at the college and the studies are going on smoothly without any hindrance to the smooth functioning of the college. There are every chances of the interference by the outsides of the college adversely affect the smooth functioning of the college and the peace full environment of the college regained by the police action, if this case is being quashed more over the quashing of the FIR of this case will also help to deliver negative message to the political criminal of the locality. In the above circumstances I humbly submit their report before the Honorable High Court of Kerala against quashing this case."
5. Heard both sides.
6. The Counsel for the petitioners submitted that the incident occurred at the time when they were students and though some of the persons were shown as outsiders, they were also part of the student union once upon a time and on account of the fact that the accused as well as the de facto Crl.M.C.No.3438 of 2014 : 5 : complainant have settled the issues and restored the relationship, conducting the case will be of no use and it will only amount wastage of judicial time. Further, the third petitioner is now employed in military service and the pendency of this case will affect his future adversely.
7. Counsel for the respondents 2 to 8 submitted that they have no objection in allowing the petition.
8. The learned Public Prosecutor submitted that it is not a fit case where the power under Section 482 of Code of Criminal Procedure can be invoked as all the accused were not students and some of them are having criminal background as well and even if this case is settled and quashed, there is no likelihood of reforming themselves and vehemently opposed the application.
9. It is an admitted fact that on the basis of the statement given by the second respondent as de facto complainant Crime No.417/12 of Panniankara Police Station of Kozhikode District has been registered against the petitioners alleging offences under Sections 143, 147, 148, 341, 323, 324, 308, 506(1) read with 149 of Indian Penal Code and after investigation, final report was filed and the case is now Crl.M.C.No.3438 of 2014 : 6 : pending before Second Additional Assistant Sessions Court, Kozhikode as S.C.No.190/14. It is true that respondents 2 to 8 are students and they are the injured in this case. It is also seen from the report of the Sub Inspector of Police that accused Nos.1, 6, 7 and 10 are not students of that college at the time when the incident occurred. First accused Shafi is working as Area Secretary of DYFI local unit at that time and accused Nos. 6, 7 & 10 were not studying in that college and they are previous students of that college. Of course, others were students in the college namely Govt.Arts and Science College, Kozhikode and they belong to Students Federation of India, a political student union having allegiance to Communist Party of India Marxist. Further, it is also mentioned in the report that accused Nos. 2 4 5, 8 & 11 are Students Federation of India activists of the college. Further, it is also mentioned in the report that apart from this case, accused Nos.1, 2, 4, 5, 8, 11 are accused in other cases as well namely Crime No. 416/12, 419/12 of that Police Station, and after investigation, they are pending as C.C.No.538/12 of Chief Judicial Magistrate Court, Kozhikode and C.C.No.19/13 on the file of Judicial First Class Magistrate Court, No-III, Kozhikode. It is also seen from Crl.M.C.No.3438 of 2014 : 7 : the report that those were also political clashes between the students belonging to SFI and KSU or DYFI and Youth League. So, it is clear from this that except some of the accused persons including the third petitioner, others are actively involved in politics and they take politics as their main avocation and they involved in political clashes while they were students and even after left the college as well which is clear from the statement filed by the Sub Inspector of Police.
10. It is quite unfortunate that on account of the campus politics, violence is being done and that affect not only the persons involving the violence but also the studies of other students who are coming to college or educational institutions for the purpose of getting education to build up their professional career in future. It is true that the Supreme Court has held in some cases that even if non compoundable offences are involved and if they are settled and their relationship has been restored, then, pendency of that case should not be a hurdle for their restoration of harmony even though some of the offences are non compoundable in nature and court can invoke the power under Section 482 of Code of Criminal Procedure and quash such proceedings keeping in Crl.M.C.No.3438 of 2014 : 8 : mind that if the settlement brings harmony in the relationship between the parties, that will have to be honoured. But, at the same time, in the decision reported in Gian Singh V. State of Punjab [2012 (4) KLT 108 (SC)] and also in the decision reported in Narinder Singh and Others Vs. State of Punjab and Another [2014 (4) SCALE 195], the Honourable Supreme Court has held that merely because High Court has power to quash the proceedings under Section 482 of Code of Criminal Procedure, it should not be liberally used and that can be used only in cases where private disputes are culminated in the criminal cases and if they were settled and their relationship has been restored and there is no public interest involved, then, in such cases, court can in the interest of justice and also to promote the relationship between the parties, invoke the power under Section 482 of Code of Criminal Procedure and quash the proceedings and if public interest is involved and grave and heinous offences are committed, then, even if the parties have settled the issue, that cannot be allowed to be quashed invoking the power under Section 482 of Code of Criminal Procedure as it will affect the public at large. This court also has taken the same Crl.M.C.No.3438 of 2014 : 9 : view in one of the cases disposed by this court in Crl.M.C.No.2105/2014. So, considering the circumstances and also in view of the discussions made above, merely because the case has been settled between the victims and the accused persons, this court feels that it is not a fit case to quash the case in entirety against all the accused persons invoking the power under Section 482 of Code of Criminal Procedure as it will give a wrong message to the society.
11. As far as the third petitioner is concerned, it is seen from the report itself that he is not an active member of the students union and he happened to be one of the accused in the incident. He has no criminal background as well. Now, after completing his studies, he has got a job in military service and he is now serving the country in the boarder part of the India. The pendency of this case should not be a hurdle for his employment. Further, considering the nature of involvement of the third petitioner also in the commission of the crime, this court feels that he really has no intention to commit any grave act, but happened to be a member of that assembly and no serious over tacts have been alleged against him as well. So, under the circumstances and also considering Crl.M.C.No.3438 of 2014 : 10 : the fact that he is now serving the country by joining military service and he want to reform himself into a better person, this court feels that circumstances can be taken as an exceptional circumstance to separate that person from other group and extend the benefit of Section 482 of Code of Criminal Procedure to quash the proceedings in his favour.
So, the petition is allowed in part. The case against third petitioner who is the third accused in S.C.190/2014 (Crime No.417/2012 of Panniankara Police Station) pending before Second Additional Assistant Sessions Judge, Kozhikode alone is quashed and the prayer for quashing of the proceedings as against other petitioners is rejected. However, considering the fact that the matter has been settled, the lower court is directed to expedite the trial of the case at the earliest.
With the above direction and observation, the petition is allowed in part.
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K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge