Asif Ismail, Ismail and Sabiya v. Fursana P.H. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 29TH DAY OF OCTOBER 2014/7TH KARTHIKA, 1936** ## **Crl.MC.No. 5140 of 2014 ()** **--------------------------CMP 3407/2014 of JUDICIAL FIRST CLASS MAGISTRATE'S COURT-II, PALAKKAD FIR NO. 503/2014 OF KONGAD POLICE STATION, PALAKKAD** **--------------------** **PETITIONERS/ACCUSED 1, 2 & 3 : ---------------------------------------------** ## **1. ASIF ISMAIL, AGED 31 YEARS,** - **S/O.ISMAIL, CHENNAI HOUSE, AKG NAGAR, NADAKAVU, AKATHETHARA PALAKKAD TALUK (NEAR HEMAMBIKA NAGAR POLICE STATION)PALAKKAD 678 001.** ## **2. ISMAIL, AGED 62 YEARS, H/O.SABIYA,** - **CHENNAI HOUSE, AKG NAGAR NADAKAVU, AKATHETHARA PALAKKAD TALUK(NEAR HEMAMBIKA NAGAR POLICE STATION) PALAKKAD - 678 001.** **3. SABIYA, AGED 58 YEARS, W/O.ISMAIL, CHENNAI HOUSE, AKG NAGAR NADAKAVU, AKATHETHARA PALAKKAD TALUK (NEAR HEMAMBIKA NAGAR POLICE STATION) PALAKKAD 678 001.** **BY ADVS.SRI.U.BALAGANGADHARAN SRI.G.GIREESH** ## **RESPONDENTS/DE FACTO COMPLAINANT/STATE :** **-----------------------------------------------------------------------** **1. FURSANA P.H., AGED 20 YEARS, W/O.ASIF ISMAIL, PEEDIYAKKAL HOUSE, VELIKKAD, (NEAR KONGADU POLICE STATION), PALAKKAD TALUK, PALAKKAD 678 592.** ## **2. STATE OF KERALA** **REPRESENED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.** **R1 BY ADV. SRI.M.H.HANIL KUMAR R2 BY PUBLIC PROSECUTOR SRI. R. GITHESH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29-10-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **bp** ## **Crl.MC.No. 5140 of 2014 ()** **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** **ANNEXURE A: COPY OF THE CMP NO.3407/2014 DATED 18/6/2014.** **ANNEXURE B: COPY OF THE FIR NO.503 DATED 20/6/2014** ## **ANNEXURE C: ORIGINAL CONTRACT EXECUTED BETWEEN THE IST PETITIONER AND IST RESPONDENT ON 13/8/2014.** ## **ANNEXURE D: COPY OF AFFIDAVIT IN ORIGINAL EXECUTED BY THE IST RESPONDENT DATED 13/8/2014** **RESPONDENT(S)' EXHIBITS :** **NIL.** **---------------------------------------** ## **//TRUE COPY//** ## **P.A.TO JUDGE** **bp** ## **ALEXANDER THOMAS, J. ----------------------------Crl.M.C.No.5140 Of 2014 --------------------------------Dated this the 29[th] day of October, 2014.** ## **O R D E R** The above captioned Criminal Miscellaneous Case (Crl.M.C) invoking the inherent powers conferred on this Court under Section 482 Cr.P.C has been filed with the prayer to quash the impugned Annexure-B FIR in Crime No.503/2014 of Kongad Police Station and Anenxure-A proceedings in C.M.P.No.3407/2014 dated 18.6.2014 on the file of the Judicial First Class Magistrate Court-II, Palakkad and all further proceedings arising therefrom. The 1[st] petitioner is the husband of the 1[st] respondent. Based on Annexure-A private criminal complaint preferred by the 1[st] respondent the jurisdictional Magistrate directed investigation under Section 156(3) Cr.P.C which led to thew registration of Annexure-B FIR in Crime No.503/2014 of Kongad Police Station, Palakkad District registered for offence under Section 498A r/w Section 34 IPC. The gist of the allegation is that the husband and the relatives of the husband have caused mental and physical harassment on her with an intention to extract more money ::2:: ## **Crl.M.C.No.5140 Of 2014** and jewellery from the 1[st] respondent etc and thereby committed the aforementioned offences. It is averred that the marriage between the 1[st] petitioner and 1[st] respondent did not last long due to serious difference of opinion between them and they started living separately and as a off suit of the above, the 1[st] respondent lodged Annexure-A criminal complaint before the Judicial First Class Magistrate Court-II, Palakkad as C.M.P.No.3407/2014 against the accused persons alleging offence under Section 498A r/w 34 IPC. It is further stated that the matrimonial disputes between the 1[st] petitioner and 1[st] respondent was mediated by the Mosque Mahal Committee and it has been decided by the parties to terminate the matrimonial disputes between them and the 1[st] petitioner pronounced “Thalaq” thrice on 13.8.2014 in the presence of diligent witnesses and they executed a contract to the effect that the 1[st] petitioner is not liable to pay any money or gold ornaments to the 1[st] respondent and that it was also agreed that the 1[st] petitioner will give a sum of Rs.3,000/- per month for a period of three months amounting to Rs.9,000/- being the idad expenses and towards the fair provision for future ::3:: ## **Crl.M.C.No.5140 Of 2014** maintenance the 1[st] petitioner would give a sum of Rs.3,91,000/- and the 1[st] respondent received and amount of Rs.9,000/- being the idad expenses and Rs.3,91,000/- for future maintenance which has been acknowledged while executing Annexure-C contract on 13.8.2014. It was further specifically agreed in Annexure-C that the 1[st] respondent will not pursue and prosecute C.M.P.No.3407/2014 pending before the Judicial First Class Magistrate Court-II Palakkad and further proceedings arising out of impugned Annexure-B FIR in the instant crime. In clause (10) of Annexure-C contract the 1[st] respondent has specifically agreed that she will compromise all impugned criminal proceedings arising out of Annexure-A C.M.P.No.3407/2014 against all the accused persons therein and that she agrees for termination of the above said impugned criminal proceedings etc. The 1[st] respondent has also sworn to an affidavit dated 13.8.2014 produced as Annexure-D in the Crl.M.C stating the above facts and further stated that she has decided not to pursue the criminal complaint pending before the Magistrate Court viz. Annexure-A and the impugned Crime in the police station and that she has ::4:: ## **Crl.M.C.No.5140 Of 2014** no objection in quashing the impugned criminal proceedings. It is in the background of these facts and circumstances this Crl.M.C has been filed. 2. The Crl.M.C. has been admitted and Sri.M.H.Hanil Kumar has taken notice for the 1[st] respondent and the learned Public Prosecutor has taken notice for the 2[nd] respondent-State of Kerala. 3. Heard Sri.U.Balagangadharan, learned counsel for the petitioners, Sri.M.H.Hanil Kumar, learned counsel for the 1[st] respondent and the learned Public Prosecutor appearing for the 2[nd] respondent-State of Kerala. 4. The learned counsel for the petitioners has submitted that during the pendency of the aforementioned criminal proceedings, the matter has been settled amicably between the parties, and that the continuation of the proceedings in the above case/crime will cause miscarriage of justice to both parties as the real disputants to the controversy have arrived at an amicable settlement and any further continuation of the criminal proceedings will amount to sheer wastage of time and money and would unnecessarily strain the judicial, administrative and financial resources of the State. ::5:: ## **Crl.M.C.No.5140 Of 2014** 5. Sri.M.H.Hanil Kumar, learned counsel appearing for the 1[st] respondent has submitted, on the basis of the specific instructions furnished by the 1[st] respondent, that the 1[st] respondent has amicably settled the disputes with the petitioners as stated above and that she has no objection in the quashment of the impugned criminal proceedings and that the complainant/victim/injured does not intend to proceed any further against the petitioners as she has no grievance against them and that she will not raise any dispute/complaint in future if the prayer for quashing the impugned criminal proceedings is allowed. 6. The learned Public Prosecutor also was heard, who also has not raised any serious objections and submitted that the court may consider the prayer in this case in the light of the law well settled by the Apex Court in that regard. 7. After having carefully considered the submissions of the parties and after having perused the pleadings as well as the documents and materials placed in this matter, it can be seen that the offences alleged are more or less personal in nature and not much element of public interest is involved. The crucial aspect of the matter is that though such offences are involved, ::6:: ## **Crl.M.C.No.5140 Of 2014** the real disputants to the controversy, which has led to the impugned criminal proceedings, have actually arrived at an amicable settlement of the matter. From the submissions made by the learned counsel for the 1[st] respondent, it is clear to the Court that the injured/victim/defacto complainant has no further grievance against the petitioners/accused in the light of the settlement arrived at by them. In this connection, it is relevant to note the decision of the Apex Court in the case between _**Gian Singh** v._ _**State of Punjab**_ reported in 2013 (1) SCC (Cri) 160, para 61 = (2012) 10 SCC 303 = 2012(4) KLT 108(SC), wherein the Supreme Court has held as follows in para 61 thereof [ See SCC (Cri)]: _“61. 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:- ::7:: ## **Crl.M.C.No.5140 Of 2014** “...... _... 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 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, 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........”_ Further, in the case _**Jitendra Raghuvanshi and Others** v._ _**Babita Raghuvanshi and another**_ reported in (2013) 4 SCC 58 [see 2013 (1) KLD 817 (SC)], the Apex Court has held as follows:- “8 _. It is not in dispute that 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 non-compoundable under Section 320 of the Code, it would be impermissible for the court to quash the criminal proceedings or FIR or complaint._ ::8:: ## **Crl.M.C.No.5140 Of 2014** 9 _. 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 wellwishers, 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 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 non-compoundable in nature._ _15. 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._ _16. 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_ ::9:: ## **Crl.M.C.No.5140 Of 2014** _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 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.”_ 8. Considering the facts and circumstances of this case, it is seen further that the impugned criminal proceedings have arisen consequent to the matrimonial disputes between the disputants and the disputes have been settled amicably between the parties. Accordingly, this Court is inclined to hold that in the light of the facts and circumstances involved in the present case and particularly in view of the settlement arrived at between the parties, the principles laid down in the aforementioned decisions of the Apex Court will be squarely applicable in the present case. Moreover, since the real disputants to the controversy have amicably settled the disputes, which led to these impugned criminal proceedings, it is also the duty of the court to promote such settlement, instead of compelling the parties to go on with the dispute. It is also pertinent to note that since the matter is ::10:: ## **Crl.M.C.No.5140 Of 2014** settled out of court, in the event of proceeding with the trial, there may not be any fruitful prosecution and the chances of conviction of the accused is rather negligible and therefore, the net result of continuance of criminal proceedings would be sheer waste of judicial time rather meaningless and therefore would amount to abuse of the process of court proceedings in the larger sense. Hence following decisions of the Apex Court cited supra, this Court is inclined to hold that the Crl.M.C. can be allowed by granting the prayers sought for. In the result, Crl.M.C is allowed and the impugned Annexure-A criminal complaint in C.M.P.No.3407/2014 on the file of the Judicial Fist Class Magistrate Court-II, Palakkad which has led to the registration of the impugned Annexure-B FIR in Crime No.503/2014 of Kongad Police Station as against all the accused therein and all further proceedings arising therefrom stand quashed. Petitioners shall produce certified copies of this order before the Magistrate Court concerned as well as before the Station House Officer concerned. **ALEXANDER THOMAS, Judge.** bkn/-