Babeesh and Nikesh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 8TH DAY OF APRIL 2014/18TH CHAITHRA, 1936** ## **Crl.MC.No. 2046 of 2014** ## **----------------------------------** **AGAINST THE ORDER IN CC 1155/2012 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I, VADAKARA CRIME NO. 414/2010 OF VATAKARA POLICE STATION , KOZHIKODE** **------------** ## **PETITIONER(S)/ACCUSED NO.1 & 2:** **---------------------------------------------------** ## **1. BABEESH, AGED 33 YEARS,** **S/O.BHASKARAN, THOKKANDI HOUSE, CHORODE POST, CHENNAMANGALAM, VATAKARA, KOZHIKODE DISTRICT-673 105.** ## **2. NIKESH,** **S/O.ASHOKAN, THOKKANDI HOUSE, CHORODE POST, CHENNAMANGALAM, VATAKARA, KOZHIKODE DISTRICT-673 105.** **BY ADVS.SRI.K.RAKESH ROSHAN SMT.THUSHARA.V** ## **RESPONDENT(S)/STATE & VICTIM:** **-------------------------------------------------** ## **1. STATE OF KERALA,** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, (IN THE MATTER OF CRIME NO.414/2010 NOW PENDING AS CC 1155/2012 ON THE FILE OF JFCMC-I VATAKARA). ERNAKULAM-31.** ## **2. PREECHITH, AGED 27 YEARS,** **PO-PUTHOORU, VATAKARA, KOZHIKODE DISTRICT-673 104.** ## **3. RINEESH, AGED 31 YEARS,** **S/O.KELAPPAN, PO-MADAPPALLY COLLEGE, VATAKARA, KOZHIKODE DISTRICT-673 102.** **R1 BY PUBLIC PROSECUTOR SMT.S.HYMA R2,R3 BY ADV. SRI.MANSOOR.B.H.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08-04-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** ## **Crl.MC.No. 2046 of 2014** ## **----------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES** **------------------------------------------** **ANNEXURE-1. CERTIFIED COPY OF THE RELEVANT PAGES OF FINAL REPORT IN CRIME NO.414/2010 OF VATAKARA POLICE SATION NOW PENDING AS CC NI.1155/2012 AGAINST THE PETITIONERS ON THE FILE OF JFCM-I, VATAKARA.** **ANNEXURE-2. ORIGINAL OF THE AFFADAVIT SWORN BY THE 2ND RESPONDENT BEFORE A NOTARY PUBLIC.** **ANNEXURE-3. ORIGINAL OF THE AFFADAVIT SWORN BY THE 3RD RESPONDENT BEFORE A NOTARY PUBLIC.** **RESPONDENT(S)' ANNEXURES** **--------------------------------------------** **NIL.** **/ TRUE COPY /** ## **P.S. TO JUDGE** **PJ** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.M.C.No.2046 of 2014 .................................................. Dated this the 8[th] day of April, 2014. ## **O R D E R** This petition is filed by accused 1 and 2 in C.C.No.1115/12 pending before the Judicial First Class Magistrate Court-I, Vatakara to quash the proceedings on the basis of the settlement under Section 482 of the Code of Criminal Procedure. 2. It is alleged in the petition that on the basis of the statement given by the second respondent as defacto complaint, a case was registered as Crime No.414/10 of Vatakara police station originally against several persons including the petitioners alleging offences under Sections 143, 147, 341 and 323 read with Section 149 of the Indian penal Code and after investigation final report was filed and the case was originally taken on file as C.C.No.710/2010.Except the present petitioners, other accused persons faced trial and they were acquitted by the learned Magistrate for want of identification. Thereafter the case against the present petitioners have been spit up and refiled as C.C.No.1155/12. Now the mater has been settled between the petitioners and the defacto complainant and other Crl.M.C.No.2046 of 2014 2 injured in the case. No purpose will be served by proceeding with the case in view of the settlement. Conviction will be remote in such cases. Since some of the offences are non compoundable in nature, they could not file application before the concerned court. So they have no other remedy except to approach this court seeking the following relief: i. Quash Annexure 1 charge and final report, pending before the JFCM-I, Vatakara as C.C.No.1155/2012 against the petitioners. ii. Issue such other order or directions, which this Hon'ble court deem fit to pass in the circumstances of the case. 3. Respondents 2 and 3 appeared through counsel and submitted that the mater has been settled between the parties and they have no intention to proceed against the present petitioners especially in the circumstances that other accused were already acquitted by the court after evidence and they also submitted that Annexures 2 and 3 affidavits stating these facts. 4. The counsel for the petitioners also submitted that in view of the settlement, no purpose will be served by proceeding with the case. So they prayed for allowing the petition. 5. The learned Public Prosecutor has, on instructions, as Crl.M.C.No.2046 of 2014 3 per the direction of this Court submitted that there is no other case against the petitioners and there is no criminal background and other accused persons were acquitted by the court below after trial, but opposed the application on the ground that the present petitioners are absconding in the matter. 6. It is an admitted fact that on the basis of the statement given by the second respondent, a case was registered as Crime No.414/10 of Vatakara police against the petitioners and others alleging offences under Sections 143, 147,341 and 323 read with Section 149 of the Indian Penal Code and after investigation, final report was filed and it was originally taken on file as C.C.No.710/2010. Since the present petitioners did not appear, the trial of the case was proceeded against other accused persons and after trial they were acquitted by the learned Magistrate. The case agaisnt the petitioners has been split up and refiled as C.C.No.1155/12 and pending before the Judicial First Class Magistrate Court-I, Vatakara. Now the matter has been settled by the petitioners with the defacto complainant and the other injured and they have filed Annexures 2 and 3 affidavits stating these facts. Considering the fact that the Crl.M.C.No.2046 of 2014 4 matter has been settled between the parties and they are neighbours and harmony has been restored between them on account of the settlement, no purpose will be served by proceeding with the case and conviction in such cases will be remote as the prosecution witness will not support the case of the prosecution. ## 7. Further in the decision reported in **Gian Singh v. State of Punjab** (2012 (4) KLT 108 (SC), the Hon'ble Supreme Court has held that: “But the criminal cases having overwhelmingly and predominatingly 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 5 Crl.M.C.No.2046 of 2014 would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceedings or continuation of the criminal proceedings would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.” 8.In view of the dictum laid down in the above decision and also considering the fact that the petitioners and respondents 2 and 3 who are the defacto complainant and the injured in the case are neighbours and the mater has been settled due to intervention of mediators and friends and their relationship has been restored, no purpose will be served by proceeding with the case and it will be only a wastage of judicial time, this Court feels that it is a case where power under Section 482 has to be invoked to quash the proceedings as against the Crl.M.C.No.2046 of 2014 6 petitioners in order to promote the settlement which restored their relationship. So, the petition is allowed and further proceedings in C.C.No.1155/2012 (Crime No.414/2010 of Vatakara police station) pending before the Judicial First Class Magistrate Court -I, Vatakara, as against the petitioners is quashed. Office is directed to communicate this order to the concerned court immediately for further action in this regard. ## **Sd/K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge Crl.M.C.No.2046 of 2014 7