A.T. Ashraf v. Sub Inspector of Police, Thamarassery Police Station & State of Kerala and Addl.R3 Mashida

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 Crl.MC.No. 546 of 2005() -----------------------(C.C.No.464/2004 OF THE JFCM-I, THAMARASSERY) (CRIME NO.358/04 OF THAMARASSERY POLICE STATION) PETITIONER: ------------ A.T.ASHRAF, S/O.THARUVAYI HAJI, KALLADA VEEDU, KEDAVOOR AMSOM, EERPONA DESOM, THAMARASSERY, KOZHIKODE DISTRICT. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS: ------------- 1. SUB INSPECTOR OF POLICE, THAMARASSERY POLICE STATION. 2. STATE REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADDL.R3: MASHIDA, AGED 28 YEARS, D/O. AHAMMEDKUTTY HAJI, AATTUSHALAM VEEDU, KIDAVOOR AMSOM, PUNNOOR DESOM, THACHAMPOIL, KOZHIKODE TALUK. (IMPLEADED AS PER ORDER DT.18-8-2005 IN M.A.10013/2005) R1 & 2 BY PUBLIC PROSECUTOR SRI C.K.SURESH. ADDL.R3 BY ADV. SRI.CIBI THOMAS THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A. NO.1451/2005 IN CRL.M.C. 546/2005. DISMISSED. 20-6-2008. SD/- V.K.MOHANAN, JUDGE. //TRUE COPY// ## **V.K.MOHANAN, J.** ---------------------------------------------CRL.M.C. No.546 of 2005 ---------------------------------------------Dated, 20[th] June, 2008. ## ORDER The petitioner is the sole accused in C.C.No.464/2004 on the file of the Judicial Magistrate of the First Class Court-I, Thamarassery for the offences punishable under Sections 498(A), 406 and 506(1) of the Indian Penal code. He seeks an order from this Court under Section 482 of Cr.P.C. quashing all the proceedings in the above case pending before the court below. 2. The additional 3[rd] respondent, who is the wife of the petitioner, preferred a private complaint before the Judicial First Class Magistrate Court-I, Thamarassery as CMP 3618/2004 with the allegation that the petitioner along with other accused, viz., accused Nos. 2, 3 and 4, have misappropriated an amount of Rs.1,50,000/- and 80 sovereigns of gold ornaments belonging to the de facto complainant and harassed her physically and mentally for more money and thereby committed offences punishable CRL.M.C.546/05 ## **-:2:-** under sections 498(A), 406 and 506(1) of IPC. The said complaint sent to the Thamarassery police station for investigation under section 156(3) Cr.P.C. wherein crime No.358/2004 was registered. Anneuxre-I is the complaint and Annexure-II is the FIR. It is the case of the petitioner that during the course of investigation, Ist respondent filed Anneuxre-III petition before the court below with a prayer to delete accused Nos 2 to 4 from the array of accused. Finally, the police filed AnnexureIV final report. It is the above final report now sought to be quashed in this proceedings. 3. Heard the counsel appearing for the petitioner as well as the Addl. 3[rd] respondent and also the Public Prosecutor. 4. Counsel for the petitioner as well as the Addl.3[rd] respondent submitted that the matter has been settled out of court and they have decided to compound the offences and they prayed that the proceedings in C.C.464/2004 in L.P.9/06 of the court below may be CRL.M.C.546/05 **-:3:-** quashed. 5. The counsel for the petitioner submitted that the petitioner was out of station connected with his employment during the time of investigation and now the matter has been settled out of court and the Addl. 3[rd] respondent do not want to proceed with the criminal case against the petitioner. A compounding petition under section 320(8) of the Cr.P.C. is filed before this Court as Crl.M.A.3306/2008 in which both the petitioner as well as the Add.3[rd] respondent and their respective counsel put their signature. It appears from the perusal of the records that initially the complaint was filed against the petitioner as well as his parents and brother. But subsequently, the police filed Anneuxre-III petition to delete them from the array of accused. Now, as evidenced in the petition mentioned above, the matter has been settled out of court and they want to compound the offences which alleged against the petitioner. CRL.M.C.546/05 ## **-:4:-** 6. It is beyond dispute that the offence alleged against the petitioner is connected with matrimonial dispute including harassment under section 498A and misappropriation of gold ornaments etc. The Apex Court in the decision in **B.S.Joshi v.State of Haryana** (AIR 2003 SC 1386) held that it is the duty of the court to encourage genuine settlements of matrimonial disputes. In the very same decision, the Apex Court had further held that refusal to exercise the inherent powers by the High Court under Section 482 is not proper as it may prevent women from settling earlier and that is not the object of Chapter XX A of the Indian Penal code. It is also held therein that for the purpose of securing the ends of justice, quashing of FIR or proceedings becomes necessary and Section 320 would not be a bar to exercise the power of quashing. A Division Bench of this Court in **Thankamma v. State of Kerala** (2006(3) KLT 846) has held that when the parties are seeking to compound the offence under section 498-A of the IPC, the approach CRL.M.C.546/05 ## **-:5:-** of the court would be to save the institution of marriage since the sanctity of marriage is a cornerstone of civilization and to bring peace and happiness in the society. The Division Bench also held that courts have however, to be guarded that S.482 is not misused so as to compound the offence under S.498-A which is otherwise non-compoundable. It is also held that in appropriate cases the courts could exercise its inherent powers under S.482 to save the institution of marriage. 7. In the present case, going by the materials available on record and in the light of the the compounding petition, I am of the view that as the matter has been settled out of court, there is no meaning in relegating the petitioner to face the trial and as such there is no scope for a fruitful prosecution. Otherwise the continuance of the proceedings in the facts and circumstances involved in this case, will amount to abuse of process of the court. In the result, the Crl.M.C. is allowed. CRL.M.C.546/05 ## **-:6:-** C.C.No.464/2004 and all proceedings thereon pending against the petitioner in L.P.No.9/2006 on the file of the Judicial Magistrate of the First Class-I, Thamarassery are quashed. ## **V.K.MOHANAN, JUDGE** kvm/- CRL.M.C.546/05 ## **-:7:-** V.K.MOHANAN, J. No.... Judgment/Order Dated: