Abdulla Thottam @ Nisan Abdulla v. S. Santoshkumar and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** ## **THURSDAY, THE 4TH DAY OF JULY 2013/13TH ASHADHA, 1935** ## **Crl.MC.No. 2728 of 2013 ()** **-----------------------------------CC 420/2012 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KASARAGOD. ........** **PETITIONER(S)/4TH ACCUSED:** **------------------------------------------------** **ABDULLA THOTTAM @ NISAN ABDULLA, AGED 47 YEARS S/O.ABDUL RAHMAN HAJI, RUKIYA MANZIL, PUTHIGE KUMBALA, KASARAGOD DISTRICT.** **BY ADV. SRI.S.JIJI** ## **RESPONDENTS/DE-FACTO COMPLAINANT & STATE:** **---------------------------------------------------------------------------** **1. S.SANTHOSHKUMAR, AGED 30 YEARS, S/O.MANKU, MANTAMPADY HOUSE, ANGADIMUGAR KUMBALA, KASARAGOD - 671 321.** **2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.S.HYMA BY SMT.MINI.V.A.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **tss** ## **Crl.MC.No. 2728 of 2013 ()** **--------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** **ANNEXURE A1: FINAL REPORT IN CR.40/2012 OF KUMBALA POLICE STATION FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT I, KASARAGOD.** **ANNEXURE A2: AFFIDAVIT DATED 28/06/2013 SWORN BY THE 1ST RESPONDENT .** **RESPONDENT(S)' EXHIBITS** **---------------------------------------** **NIL** **TRUE COPY** **P.A. TO JUDGE** **tss** ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.M.C. No. 2728 of 2013** ## **----------------------------------------** Dated this the 4[th] day of July, 2013 ## **ORDER** The above petition is filed under Section 482 of the Criminal Procedure Code (for short 'Cr.P.C.') at the instance of the petitioner, who is an accused in C.C.No.420/2012 of the Judicial First Class Magistrate Court, Kasaragod which is a case instituted upon the police report for the offences punishable under Sections 341, 323, and 294(b) and r/w Section 34 of I.P.C., with a prayer to quash Annexure A-1 Final Report and all further proceedings in C.C.No.420/2012 of the Judicial First Class Magistrate Court, Kasaragod against the petitioner as the matter is settled out of court. 2. The allegation in the above case is that on 17/1/2012 at 11 a.m., the petitioners restrained the movement of the defacto complainant and assaulted him and abused him, due to the reason he went for loading sand in the boat though he was told not to go for the sand loading by the petitioners and thus committed the above offences punishable under Sections 341, 323, and 294(b) and r/w Section 34 of I.P.C., Now, the case of the petitioner is that the matter is settled out of court since the petitioners as well as the **Crl.M.C. No. 2728 of 2013** 2 respondent, defacto complainant are neighbors. The first respondent defacto complainant has sworn in to Annexure 2 affidavit. 3. Heard the learned counsel for the petitioner as well as the first respondent. I have also heard the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that during the pendency of the above case, the matter is settled amicably between the parties to the dispute which is the subject matter of the above case. Therefore, the continuation of the proceedings in the above case is abuse of process of law and proceedings. I have verified documents including Annexure-2. 5. The learned counsel for the first respondent who on the basis of specific instruction received from the respondent submitted that the above respondent, who is the de facto complainant does not intend to proceed any further against the petitioner and he has no grievance against him. 6. I have carefully considered the above submissions of the respective counsel. I have verified the documents and **Crl.M.C. No. 2728 of 2013** 3 materials produced along with the above petition. In the given facts and circumstances of the case and especially in the light of the settlement arrived between the parties to the dispute, the learned Public Prosecutor has also no objection in allowing the above petition. 7. Having regard to the facts and circumstances involved in the case, it can be seen that the offences involved in the above case are only 341, 323, and 294(b) and r/w Section 34 of I.P.C., which are more or less personal in nature and no public interest is involved. It is pertinent to note that though such offences are involved, the real parties to the dispute approached this Court after having amicably settled the matter. From the submission made by the counsel for the first respondent, it appears to me that the the de facto complainant has no further grievance against the petitioner accused in the light of the settlement arrived by them. In this juncture, it is relevant to note the decision of the Honourable Apex Court reported in **Gian Singh** v. **State of Punjab** [2012 (4) KLT 108(SC)]. In which case, the Supreme Court has held as follows:- **Crl.M.C. No. 2728 of 2013** 4 _“57. 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 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.._ ## It is further held as follows:- “...... _... 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,mercandile, 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,_ **Crl.M.C. No. 2728 of 2013** 5 _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........”_ According to me, in the light of the facts and circumstances involved in the present case and particularly in view of the settlement arrived in the present case, the dictum laid in the above decision is applicable in the present case. Thus, I am of the view that as the parties to the dispute settled the issues amicably, it is the duty of this Court to promote and encourage such settlement, instead of compelling the parties to go on with the dispute. It is pertinent to note that since the matter is settled out of court, in the event of proceeding with the trial, there would not have any fruitful prosecution resulting the conviction of the accused, rather the net result would be sheer waste of judicial time and abuse of process of the court and proceedings. Thus, according to me, following the decisions cited supra, this Criminal M.C. can be allowed granting the relief as sought for. ## **Crl.M.C. No. 2728 of 2013** **==> picture [7 x 9] intentionally omitted <==** In the result, this Crl.M.C. is allowed, quashing Annexure-A1 and all further proceedings pending against the petitioners in C.C.No. 420/2012 of the Judicial First Class Magistrate Court, Kasaragod and all further proceedings thereto. **V.K.MOHANAN, JUDGE** AS