Babyraj M.P. v. State of Kerala and N.S. Binu Kumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 20TH DAY OF JUNE 2014/30TH JYAISHTA, 1936** ## **Crl.MC.No. 3177 of 2014 ()** **--------------------------CC.NO. 798/2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -I,HOSDURG CRIME NO. 33/2014 OF HOSDURG POLICE STATION , KASARGOD DISTRICT ------------------------------** ## **PETITIONER/ACCUSED:** **---------------------------------------** **BABYRAJ.M.P.,AGED 48 YEARS, S/O. KUNHIKRISHNAN NAIR, VALLIKKOTH, AJANUR VILLAGE, P.O. AJANUR, KASARAGOD DISTRICT, PIN- 671 531.** **BY ADVS.SRI.K.J.MOHAMMED ANZAR SRI.A.D.SURESH BABU** ## **RESPONDENT(S)/STATE AND DEFACTO COMPLAINANT:** **----------------------------------------------------------------------------------------** ## **1. STATE OF KERALA,** **THROUGH SUB INSPECTOR OF POLICE, HOSDURG POLICE STATION, KASARAGOD DISTRICT, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM -682 031.** **2. N.S. BINU KUMAR, AGED 36 YEARS, S/O. SIDHARTHAN N.K., RESIDING AT NJATTUVETTY HOUSE, PERINGOTTUKARA, THRISSUR DISTRICT.** **R1 BY PUBLIC PROSECUTOR SMT. P.MAYA R2 BY ADV. SRI.T.B.GAFOOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20-06-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** **Crl.MC.No. 3177 of 2014 ()** **---------------------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES:** **--------------------------------------------** **ANNEX.A1 - CERTIFIED COPY OF THE FIR IN CRIME NO.33/2014 OF HOSDURG POLICE STATION** **ANNEX.A2 - CERTIFIED COPY OF FINAL REPORT IN CRIME NO.33/2014 OF HOSDURG POLICE STATION FILED IN CC.NO.798/2014 OF JFCM COURT-1, HOSDURG ANNEX.A3 - ORIGINAL COPY OF AGREEMENT BETWEEN THE 2ND RESPONDENT AND THE PETITIONER** ## **RESPONDENT(S)' ANNEXURES:** ## **NIL** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** ## K. RAMAKRISHNAN, J. ------------------------------------------------Crl. M.C. No.3177 of 2014 -------------------------------------------------Dated this the 20[th] day of June, 2014 ## O R D E R This criminal miscellaneous case is filed by the petitioner, who is the accused in C.C.798/2014 pending before the Judicial First Class Magistrate Court-1, Hosdurg, to quash the proceedings on the basis of settlement under Section 482 of Code of Criminal Procedure. 2. It is alleged in the petition that, the petitioner has been arrayed as an accused in Crime No.33/2014 of Hosdurg police station, on the basis of the complaint given by the 2[nd] respondent, alleging offences under Section 118(d) of Kerala Police Act. After investigation, Annexure-II, final report was filed and it was taken on file as C.C. 798/2014 and pending before the Judicial First Class Magistrate Court-1, Hosdurg. Now the matter has been settled between the parties and no purpose will be served by proceeding with the case on account of the settlement. Since the offence is non-compoundable in nature, they could not file an application before the court below Crl. M.C.3177 of 2014 2 for that purpose. So the petitioner has no other remedy, except to approach this court, seeking the following reliefs: “On these and other grounds that may be urged at the time of hearing it is most humbly prayed that this Hon'ble Court may be pleased to quash Annexure A2 final report filed in Annexure A1 FIR in Crime No.33/2014 of Hosdurg police station, in Kasaragod District, and all further proceedings in C.C.798/2014 pending on the files of the JFCM Court-1, Hosdurg, to secure the ends of justice and in the interest of justice”. 3. 2[nd] respondent appeared through counsel and submitted that, the matter has been settled between the parties due to the intervention of mediators and well-wishers and the petitioner had understood the mischief committed by him and he had forgiven the act of the petitioner and he does not want to prosecute him any longer. He had also filed Annexure-AIII affidavit stating these facts. 4. The counsel for the petitioner also submitted that, in view of the settlement, no purpose will be served by proceeding with the case and conviction in such cases will be remote. So he prayed for allowing the application. 5. The learned Public Prosecutor submitted that, except this case, there is no other case against the petitioner but oppose the application. 3 Crl. M.C.3177 of 2014 6. It is an admitted fact that, on the basis of a complaint given by the 2[nd] respondent against the petitioner, alleging that he had abused him by using his mobile and also sent threatening messages. Annexure-AI first information report was registered as Crime No.33/2014 of Hosdurg police station against the consumer of the mobile phone No.9446660566 alleging offence under Section 118(d) of Kerala Police Act. During investigation it was revealed that, the petitioner is the owner of that mobile phone and he has been implicated in the case and Annexure-II final report was filed and it was taken on file as C.C.798/2014 and pending before the Judicial First Class Magistrate Court-1, Hosdurg. Now the matter has been settled between the parties. The complainant had no grievance against the petitioner any more. Both of them have filed Annexure-III affidavit stating that, due to the intervention of mediators, the matter has been settled and the petitioner has no objection in quashing the proceedings. There is no criminal antecedents for the petitioner as well. Considering the fact that the matter has been settled, there is no possibility of conviction in such cases and allowing such cases to continue will only amount to the Crl. M.C.3177 of 2014 4 wastage of judicial time. It is true, that the mobile phones has become some times nuisance to others, but if the other party had pardoned the mischief committed and the petitioner had repented for what he had done, then, that will have to taken into account by the courts, to promote their settlement. 7. In the decision reported in **Gian Singh v. State of Punjab [2012(4) KLT 108 (SC)]** , it has been held that: “The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceedings 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 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 FIR may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case an no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc., cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the Crl. M.C.3177 of 2014 5 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. 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 matter has been settled between the parties and no purpose will be served by continuing the case and conviction in such cases are remote, this court feels that, it is a fit case where power under Section 482 of the Code of Criminal Procedure has to be invoked to quash the proceedings to promote settlement, which resulted in harmony between the parties. So the application is allowed and further proceedings 6 Crl. M.C.3177 of 2014 in C.C.798/2014 (Crime No.33/2014 of Hosdurg police station) pending before the Judicial First Class Magistrate Court-I, Hosdurg, as against the petitioner is quashed. Office is directed to communicate this order to the concerned court, immediately. Sd/- K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss