Point of Law: An exercise by the High Court would be permissible only after evidence is collected after investigation and chargesheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation.

ORDER :

This is a petition filed under Section 439 of the Code of Criminal Procedure, seeking bail and the petitioner is the 2nd accused in crime No.271/2023 of Kottiyam Police Station, Kollam, where the prosecution alleges commission of offences punishable under Section 294(b), 323, 324, 307 r/w 34 of IPC.

2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor and the learned counsel representing the counsel for the defacto complainant. Perused the relevant materials form part of the case diary, placed by the learned Public Prosecutor.

3. The prosecution case is that, at about 10.30 pm on 21.02.2023, due to previous animosity accused Nos. 1 and 2 abused and assaulted the defacto complainant with intention to commit his murder. Accordingly, the defacto complainant was brutally manhandled by accused Nos. 1 and 2 and in consequence thereof the defacto complainant sustained multiple injuries including serious fracture, though he survived. On this premise the prosecution alleges commission of the above offences.

4. While pressing for grant of regular bail to the petitioner, who has 14 criminal antecedents prior to this occurrence including very serious offences, the learned counsel for the petitioner pointed out two aspects. First one is that, the petitioner has been in custody from 22.02.2023 and the 2nd point is that, the defacto complainant and another injured person viz. Dhanesh D. filed affidavits stating that the entire dispute has been settled and they have no intention to proceed with the prosecution.

5. Whereas the learned Public Prosecutor strongly opposed grant of bail highlighting the antecedents of the petitioner and also serious injuries sustained to the defacto complainant inclusive of fractures. It is submitted by the learned Public Prosecutor that, in this matter, apart from six serious injuries, the defacto complainant sustained nasal bone fracture and fracture of nasal septum.

6. On perusal of the case diary, it is discernible that, this crime was registered on the basis of FIS given by the defacto complainant. In the FIS, the overt acts at the instance of the petitioner by using a knife and causing of stab injuries could be gathered. In the copy of wound certificate of the defacto complainant, the following injuries were noted:

1. An incised wound 4x0.5x3 cm on the left cheek 3 cm below eye and 7 cm infront of ear.

2. An incised wound 6x2x4 cm vertically placed over the left side of back of chest 7 cm from midline and 15 cm below top of shoulder.

3. Multiple small contured abrasions present over the out aspect of left of chest

4. A stab wound of size 3x2x3 cm over the lower outer quotdrant of right buttocks

5. A stab wound 2x2x2 cm present over the right buttock 5 cm below injury

6. An abrasion 3x1 cm, 2 cm behind the ear over the left side of scalp

7. CT of facial bones shows bilateral nasal bone fracture, fracture of inferior wall of left orbit, fracture of nasal septum.

7. Going by the affidavits filed by the defacto complainant and the injured, stating that the dispute between them and accused has been settled, cannot be considered by this Court for any purpose, since offence under Section 307 of IPC cannot be settled acting on the recitals from the affidavit that the matter has been settled. This aspect has been well covered by the decision of the Apex Court reported in [2019 (2) KHC 190 : AIR 2019 SC 1296 : 2019 (2) KLJ 226 : 2019 (5) SCC 688], State of Madhya Pradesh v. Laxmi Narayan & Ors. In the said decision, the Apex Court laid down the principles regarding the matters to be considered while compounding non compoundable offences and it is stated therein that offence under Section 307 of IPC would fall under the category of heinous and serious offences and, therefore, the same is to be treated as crime against the society and not against the individual alone. Therefore, the criminal proceedings for the offence under S.307 IPC and/or the Arms Act etc., which have a serious impact o