Arafath, Muhammed @ Kunhapppa, and Maimoona v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **MONDAY, THE 15TH DAY OF JULY 2013/24TH ASHADHA, 1935** **Crl.MC.No. 1539 of 2013 ()** **--------------------------(AGAINST THE ORDER/JUDGMENT IN CC 18/2009 of CHIEF JUDICIAL MAGISTRATE'S COURT, PALAKKAD DATED 30-11-2010** **AGAINST THE ORDER/JUDGMENT IN CRA 711/2010 of SESSIONS COURT(FAST TRACK NO.1), PALAKKAD) PETITIONERS/ACCUSED NO.1 TO 3:-:** **-------------------------------------------------------** ## **1. ARAFATH, AGED 29 YEARS** - **S/O.MUHAMMED @ KUNHAPPA, NAMBIYARTHODI, KALAPPARAMBU NAVAKKODU, KODUNTHIRAPPULLY, PALAKKAD.** **2. MUHAMMED @ KUNHAPPA, AGED 51 YEARS S/O.MOIDU, NAMBIYARTHODI, KALAPPARAMBU NAVAKKODU, KODUNTHIRAPPULLY, PALAKKAD.** ## **3. MAIMOONA, AGED 41 YEARS** **W/O.MUHAMMED @ KUNHAPPA, NAMBIYARTHODI, KALAPPARAMBU NAVAKKODU, KODUNTHIRAPPULLY, PALAKKAD.** **BY ADVS.SRI.P.R.AJITHKUMAR SRI.K.MANOJ CHANDRAN** ## **RESPONDENT/COMPLAINANT/STATE:-:** **---------------------------------------------------------** **1. SAMEERA,, AGED 26 YEARS D/O.ABDUL MANAF, KATTIL PEEDIKA, KODUNTHIRAPPULLY PALAKKAD - 678 001.** ## **2. STATE OF KERALA,** **REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **R1 BY ADV. SRI.M.HARISHARMA R2 BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **MNS** ## **Crl.MC.No. 1539 of 2013 ()** **---------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES:** **-------------------------------------------** **ANNEXURE A. TRUE COPY OF THE JUDGMENT DATED 30.11.2010 IN C.C.NO.18 OF 2009.** **ANNEXURE B. TRUE COPY OF THE AGREEMENT DATED 01.04.2013.** **ANNEXURE C. TRUE COPY OF THE AFFIDAVIT DATED 01.04.2013.** **RESPONDENT(S)' EXHIBITS:NIL** **---------------------------------------** **//TRUE COPY//** **P.A TO JUDGE** ## **V.K.MOHANAN, J.** **---------------------------------------Crl.M.C.No. 1539 of 2013 ----------------------------------------** Dated this the 15th day of July, 2013 ## **O R D E R** The above petition is filed under Section 482 of the Criminal Procedure Code (for short 'Cr.P.C.'), at the instance of the petitioners, who are accused in C.C. No.18 of 2009 of the Judicial First Class Magistrate Court, Palakkad as well as Criminal Appeal No.711 of 2010 of Sessions Court(Fast Track No.I), Palakkad which is a case instituted upon the police report [in Crime No.23/2009 of Palakkad Town North Police Station] for the offences punishable under Section 498A r/w 34 of I.P.C. with a prayer to quash the conviction and sentence passed in C.C.No.18 of 2009 on the files of Chief Judicial Magistrate's Court, Palakkad(AnnexureA) which is now pending in appeal as Criminal Appeal No.711 of 2010 on the files of Sessions Court(Fast Track No.I), Palakkad and to quash C.C. No.18 of 2009 of the Judicial First Class Magistrate Court, Palakkad as well as Criminal Appeal No.711 of 2010 of Sessions Court(Fast Track No.I), Palakkad as the matter is settled out of court. 2. The allegation in the above case is that the marriage between the accused No.1 and the defacto 2 **Crl.M.C.No. 1539 of 2013** complainant was taken place on 13.07.2013 as per the Islamic religious ceremony. After the marriage the de facto complainant was residing with her husband at her house at Kodunthirappully. Accused No.2 and 3 are father and mother of the accused No.1. According to the de facto complainant at the time of marriage 40 sovereigns of gold ornaments were given by her parents. Thereafter the accused misappropriated the same and thus got difference of opinion among spouse which ultimately lead to the registration of case against the accused in Crime No.23/2009 in the Palakkad Town North police station for the offences punishable under Section 498A read with 34 of IPC. It is the further case of the petitioner that the trial court, as per Annexure- A judgment dated 30.11.2010 in C.C.No.18/2009 of the Judicial First Class Magistrate Court, Palakkad, convicted the accused for the said offences and imposed sentence on them and the accused challenged the same by filing appeal ie., Crl.Appeal No. 711/10 and while the above appeal was pending in the court of sessions (Fast Track No.1), Palakkad, the dispute between the accused and de facto complainant has been settled out of court and accordingly the de facto complainant who is the first 3 **Crl.M.C.No. 1539 of 2013** respondent herein sworn into an affidavit dated 01.04.2013 in support of Crl.M.A.No.2933 of 2013 which is a petition filed under Section 482 read with Section 320(8) of Cr.P.C for compounding the offence which is signed by all the accused as well as the defacto complainant and counter signed by the respective counsels. 3. Heard the learned counsel for the petitioner/s as well as the first respondent. I have also heard the learned Public Prosecutor. 4. The learned counsel for the petitioners 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. 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 petitioners and she has no grievance against them. 6. I have carefully considered the above submissions **Crl.M.C.No. 1539 of 2013** 4 of the respective counsel. I have verified the documents and 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 Section 498A r/w 34 of IPC 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 de facto complainant has no further grievance against the petitioner/s accused in the light of the settlement arrived by them. In this juncture, it is relevant to note that the Honourable Apex Court, in the decision reported in **Jitendra Raghuvanshi and Others** v. **Babita Raghuvanshi and another** [2013 (1) KLD 817(SC)], has held as follows:- “7 _. It is not in dispute that_ 5 **Crl.M.C.No. 1539 of 2013** _matrimonial disputes have been on considerable increase in recent times resulting in filing of complaints under Sections 498A and 406 of I.P.C. not only against the husband but also against the relatives of the husband. The question is when such matters are resolved either by the wife agreeing to rejoin the matrimonial home or by mutual settlement of other pending disputes for which both the sides approached the High Court and jointly prayed for quashing of the criminal proceedings or the FIR or complaint by the wife under Sections 498A and 406 of I.P.C., whether the prayer can be declined on the sole ground that since the offences are noncompoundable under Section 320 of the Code, it would be impermissible for the court to quash the criminal proceedings or FIR or complaint._ _8. It is not in dispute that in the case on hand subsequent to the filing of the criminal complaint under Sections 498A and 406 of IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961, with the help and intervention of family members, friends and well-wishers, the parties concerned have amicably settled their differences and executed a compromise/settlement. Pursuant thereto, the appellants filed the said compromise before the Trial Court with a request to place the same on record and to drop the criminal proceedings against the appellants herein. It is also not in dispute that in additional to the mutual settlement arrived at by the parties, respondent/-wife has also filed an affidavit stating that she did not wish to pursue the criminal proceedings against the appellants and fully supported the contents of the settlement deed. It is the grievance of the appellants_ 6 **Crl.M.C.No. 1539 of 2013** _that no only the Trial Court rejected such prayer of the parties but also the High Court failed toe exercise its jurisdiction under Section 482 of the Code only on the ground that the criminal proceedings relate to the offences punishable under Sections 498A and 406 of IPC which are noncompoundable in nature.”_ _“12. In our view, it is the duty of the Courts to encourage genuine settlements of matrimonial disputes, particularly, when the same are on considerable increase. Even if the offences are non-compoundable, if they relate to matrimonial disputes and the Court is satisfied that the parties have settled the same amicably and without any pressure, we hold that for the purpose of securing ends of justice, Section 320 of the Code would not be a bar to the exercise of power of quashing of FIR, complaint or the subsequent criminal proceedings._ _13. There has been an outburst of matrimonial disputes in recent times. The institution of marriage occupies an important place and it has an important role to play in the society. Therefore, every effort should be made in the interest of the individuals in order to enable them to settle down in life and live peacefully. If the parties ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a Court of law, in order to do complete justice in the matrimonial matters, the Courts should be less hesitant in exercising its extraordinary jurisdiction. It is trite to state that the power under Section 482 should be exercised sparingly and with circumspection only when the Court is convinced, on the basis of material on record, that allowing the proceedings to_ 7 **Crl.M.C.No. 1539 of 2013** _continue would be an abuse of the process of the Court or that the ends of justice require that the proceedings ought to be quashed.”_ In the present case, the only offence involved is under Section 498A of I.P.C. The criminal proceedings for the said offence originated from the matrimonial issues, which are now settled. Consequently, the parties want a quietus to the criminal case as well. 8. 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 will be squarely applicable in the present case. According to me, as the parties to the dispute settled the issues amicably, it is the duty of this Court to promote 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 8 ## **Crl.M.C.No. 1539 of 2013** the decisions cited supra, this Crl.M.C. can be allowed granting the relief as sought for. In the result, this Crl.M.C. is allowed, quashing all further proceedings pending against the petitioners in C.C. No.18 of 2009 of the Judicial First Class Magistrate Court, Palakkad as well as Criminal Appeal No.711 of 2010 of Sessions Court(Fast Track No.I), Palakkad. **V.K.MOHANAN Judge** mns/ **Crl.M.C.No. 1539 of 2013** 9