BiJoy v. State of Kerala and Sruthy

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **MONDAY, THE 16TH DAY OF JUNE 2014/26TH JYAISHTA, 1936** **Crl.MC.No. 2336 of 2014 () ---------------------------** ## **SC 31/2010 of D.C. & SESSIONS COURT,THRISSUR** **CRIME NO. 509/2008 OF VADANAPPALLY POLICE STATION , THRISSUR** ## **PETITIONER(S)/4TH ACCUSED:** **--------------------------------------------------** **BIJOY, AGED 33 YEARS, S/O.SANKARANKUTTY, KURUKKANPARAYA HOUSE THAMPAN KADAVU DESOM, THALIKULAM VILLAGE CHAVAKKAD TALUK, THRISSUR DISTRICT.** ## **BY ADV. SRI.RAJIT** ## **RESPONDENT(S)/STATE & DEFACTO COMPLAINANT:** **------------------------------------------------------------------------------------** ## **1. STATE OF KERALA** - **REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** ## **2. SRUTHY, AGED 20 YEARS** **D/O.VINAYABABU, MUNDAN HOUSE, THAMPANKADAVU THALIKULAM, CHAVAKKAD TALUK, THRISSUR DISTRICT 680 569.** **R2, BY ADV. SRI.V.V.JOY** ## **R1 BY PUBLIC PROSECUTOR SMT. S. HYMA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16-06-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 2336 of 2014 ()** **---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **-------------------------------------** **ANNEXURE-A COPY OF THE FIRST INFORMATION REPORT IN 509/2008 OF VADANAPALLY POLICE STATION,THRISSUR DISTRICT.** **ANNEXURE-B COPY OF THE FINAL REPORT FILED BY THE VADANAPALLY POLICE STATION,THRISSUR DISTRICT** **ANNEXURE-C COPY OF THE AFFIDAVIT FILED BY THE 2ND RESPONDENT SWEARING TO THE FACT OF SETTLEMENT** **ANNEXURE-D COPY OF THE JUDGMENT DT.21.10.2013 IN CRL.M.C.4295/2013.** **RESPONDENTS EXHIBITS: NIL** **/TRUE COPY/** **P.A. TO JUDGE** **SKV** ## K. RAMAKRISHNAN, J. -----------------------------------------------------------------Crl. M.C. No.2336 of 2014 ------------------------------------------------------------------------Dated this the 16[th] day of June, 2014 ## O R D E R This criminal miscellaneous case is filed by 4[th] accused in S.C.No.31/2010 of Principal Sessions Judge, Thrissur, to quash the proceedings on the basis of the settlement under Section 482 of the Code of Criminal Procedure (hereinafter called 'the Code'). 2. It is alleged in the petition that the petitioner has been arrayed as 2[nd] accused along with number of persons in Crime No.509/2008 of Vadanapally police station, which arose on the basis of the statement given by the additional 3[rd] respondent alleging that the accused persons have teased the 2[nd] respondent and thereby they have committed the offence punishable under Section 115 read with Section 305 read Section 34 of the Indian Penal Code. The matter has been settled between the parties and in fact, the 2[nd] accused had moved this court to quash the Crl. M.C. No.2336 of 2014 2 proceedings as against him, as Crl.M.C.No.4295/2013 and this court by Annexure-D order quashed the proceedings. No purpose will be served by proceeding with the case as well. Now the case is pending before the Principal Sessions Court, Thrissur as S.C.No.31/2010 as the 2[nd] respondent was a minor at the time when the incident happened and it was transferred to that court, in view of the fact that Special Court was constituted under Section 25 of Commission for Protection of Child Rights Act, 2005. In view of the settlement, no conviction will be possible. Since the offence is non-compoundable in nature, the petitioner has no other remedy, except to approach this court, seeking the following reliefs: i. Quash the proceedings pending against the petitioner as S.C.No.31/2010 of the Principal Sessions Judge, Thrissur arising from Crime No.509/2008 of Vadanapally police station, Thrissur District, as against the petitioner. ii. Grant such other relief deemed fit to this Hon'ble Court. 3. Originally only CW2 has impleaded as 2[nd] respondent as the affected victim, but the decactocomplainant was not made a party. The defacto-complainant Crl. M.C. No.2336 of 2014 3 was impleaded as additional 3[rd] respondent as per order in Crl.M.A.No.5509/2014. Though 2[nd] and 3[rd] respondent appeared through counsel and submitted that, in view of the fact that the matter has been settled between the parties, they have no further grievance against the petitioners and they have no objection in quashing the proceedings and they have filed separate affidavits stating these facts. 4. The counsel for the petitioner also submitted that, in view of the settlement, there is no possibility of conviction and in fact the offence under Section 305 is not attracted. Even as per the allegations that they have only made some comments and nothing more. 5. The learned Public Prosecutor on instructions as directed by this court submitted that, except this case, there is no other case and since it affects the child's right and being tried by a special court, the power under Section 482 of the Code of Criminal Procedure need not be invoked at this stage. 6. It is an admitted fact that on the basis of the 4 Crl. M.C. No.2336 of 2014 statement given by the additional 3[rd] respondent, crime No.509/2008 of Vadanapally police station of Thrissur District was registered against the petitioner and others alleging offence under Section 115, 305 read with Section 34 of the Indian Penal Code. After investigation, Annexure-B final report was filed and it was taken on file as C.P.No.91/2008 and it was committed to the court of sessions and it was taken on file as S.C.No.31/2010 on the file of the Principal Sessions Judge, Thrissur, as the victim was a child at that time. Now she has become major and both the defacto-complainant and the victim girl have filed affidavits stating that they have no grievance against the petitioner, as the matter has been settled between the parties. Further, 2[nd] accused in the case has approached this court by filing Crl.M.C.No.4295/2013 for quashing the proceedings on the ground of settlement and this court by Annexure-D order allowed the application and quashed the proceedings. Since this court has already quashed the proceedings on the basis of the settlement in respect of 2[nd] Crl. M.C. No.2336 of 2014 5 accused, no purpose will be served by proceeding with this case as well and the same yardstick can be applied to this case as well. 7. It is true that the victim involved is a child at that time and it affects the child rights at the time when the offence was committed. Further this court by quashing the proceedings against the 2[nd] accused opined that, offence under Section 305 will not be attracted on the basis of the allegations made in the case. There is no case for the prosecution that there was any attempt on the part of the 2[nd] respondent to commit suicide on account of the alleged abetment made by the accused persons. So neither Section 115 nor Section 305 of the Indian Penal Code are attracted in this case. So under the circumstances, no purpose will be served by proceedings with the case as well. 8. It is true that Special Courts are constituted for the purpose of trying cases involving Children and Violation of their Rights, taking into consideration that, they are being exploited and none are very much particular 6 Crl. M.C. No.2336 of 2014 about the right of the children. But at the same time when the victim after becoming major, come to the court and says that, she has no grievance against the petitioners and the relationship has been restored between the parties on account of the settlement and even as per the allegations if the offence alleged are not attracted, then keeping the case on file will only amount to wastage of judicial time and no conviction will be possible in such cases as well. 9. 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 Crl. M.C. No.2336 of 2014 7 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 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.” ## 10. In the same decision, the Hon’ble Supreme ## Court has held that: “The cases where on account of the settlement, harmony has been restored between the parties and the court is of the opinion that, no purpose will be served by proceeding with the case, as none of the witnesses are going to support the prosecution and conviction in such cases are remote, then power under Section 482 of the Code of Criminal Procedure can be invoked to quash the proceedings”. Crl. M.C. No.2336 of 2014 8 11. In view of the dictum laid down in the above decision and also considering the fact that this court has already quashed the proceedings as against the 2[nd] accused and prima-facie the offence under Section 115 or 305 of the Indian Penal Code are not attracted and in view of the settlement, conviction in such cases will be remote, this court feels that, it is a fit case where the power under Section 482 can be invoked to quash the proceedings. So the application is allowed and a further proceeding in S.C.31/2010 pending before the Principal Sessions Court, Thrissur (Crime No.509/2008 of Vadanapally police station of Thrissur District) as against the petitioner is quashed. Office is directed to communicate this order tot the concerned court, immediately. With the above observation, this criminal miscellaneous case is disposed of. Sd/- K. Ramakrishnan, Judge **==> picture [81 x 12] intentionally omitted <==** P.A. to Judge ss