Bobby Johns v. State of Kerala; Cheriyan D. Valakkuzhi v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 02ND DAY OF APRIL 2019 / 12TH CHAITHRA, 1941** **Crl.MC.No. 1214 of 2018** **AGAINST THE ORDER/JUDGMENT IN CC 2223/2014 of JUDICIAL MAGISTRATE OF FIRST CLASS ,THIRUVALLA** **CRIME NO. 2181/2014 OF Thiruvalla Police Station , Pathanamthitta** ## **PETITIONER/S:** **BOBBY JOHNS, AGED 41 YEARS, S/O JOHN THAMPI,MADAPPALLIL HOUSE, KUMBAZHA PO, PATHANAMTHITTA.** **BY ADVS. DR.K.P.SATHEESAN (SR.) SRI.K.SUDHINKUMAR SRI.MUHAMMED IBRAHIM ABDUL SAMAD SRI.P.MOHANDAS (ERNAKULAM) SRI.SABU PULLAN, SRI.S.K.ADHITHYAN SRI.S.VIBHEESHANAN** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI.682031 2 THE SUB INSPECTOR OF POLICE, THIRUVALLA POLICE STATION, PATHANAMTHITTA DISTRICT, PIN.689101 3 SUMINA CHERIAN, THADATHIL VEETIL, EERAVIPEROOR, VALAKUZHY, MALLAPPALLY, PATHANAMTHITTA.** **BY ADVS. SRI.T.P.PRADEEP SMT.M.C.BINDUMOL SMT.NITHYA VIJAYAN SRI.S.SREEDEV** ## **OTHER PRESENT:** **SRI.AMJAD ALI, PUBLIC PROSECUTOR , SRI.T.P.PRADEEP** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02.04.2019, ALONG WITH Crl.MC.1639/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ::2:: Crl.M.C.Nos.1214/2018 & 1639/2019 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 02ND DAY OF APRIL 2019 / 12TH CHAITHRA, 1941 Crl.MC.No. 1639 of 2019** **AGAINST THE ORDER/JUDGMENT IN CC 122/2016 of JUDICIAL MAGISTRATE OF FIRST CLASS ,THIRUVALLA** **CRIME NO. 759/2015 OF Thiruvalla Police Station , Pathanamthitta** ## **PETITIONER/S:** **CHERIYAN D.VALAKKUZHI, AGED 63 YEARS S/O.V.C.CHACKO,VALAKKUZHI HOUSE, MALLAPPALLY WEST.P.O,MALLAPPALLY VILLAGE,MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT.** **BY ADVS. SRI.T.P.PRADEEP SHRI.ASHIK VISWANADH C. SMT.NITHYA VIJAYAN SRI.P.K.SATHEES KUMAR SRI.S.SREEDEV** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2 BOBBY JOHNS, AGED 41 YEARS S/O JOHN THAMPI, MADAPPALLIL HOUSE, KUMBAZHA.P.O,PATHANAMTHITTA DISTRICT-689653.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02.04.2019, ALONG WITH Crl.MC.1214/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ::3:: Crl.M.C.Nos.1214/2018 & 1639/2019 ## **ALEXANDER THOMAS, J** . ----------------------------Crl.M.C.Nos.1214/2018 & 1639/2019 --------------------------------Dated this the 2[nd] day of April, 2019. ## **O R D E R** Crl.M.C.No.1214/2018 The prayer in the above Criminal Miscellaneous Case filed under the enabling provisions contained in Sec.482 of the Cr.P.C is as follows: _“................... to quash all further proceedings in C.C.No.2223/2014 pending before the Judicial First Class Magistrate's Court, Thiruvalla and render justice to the petitioner.”_ 2. Heard Dr.K.P.Satheesan, learned Senior Counsel, instructed by Sri.Sabu Pullan, learned counsel for the petitioner, Sri.Amjad Ali, learned Prosecutor appearing for respondents 1 & 2 and Sri.T.P.Pradeep, learned counsel appearing for R-3 (defacto complainant). 3. The petitioner is the sole accused in C.C.No.2223/2014 , which is now pending before the Judicial First Class Magistrate's Court, Thiruvalla, arising from Crime No.2181/2014 of Thiruvalla Police Station, which has been registered for offences punishable under Secs.323, 324 & 326 of the I.P.C and Sec.23 of the Juvenile Justice Act. ::4:: Crl.M.C.Nos.1214/2018 & 1639/2019 4. The brief of the prosecution case is that the petitioner, who is the husband of the 3[rd] respondent-lady defacto complainant, had beat the wife and son with a cricket bat and thereby sustained injuries on the left hand of the son and it is based on the said complaint the crime has been registered. However, during the pendency of the Bail Application filed by the petitioner, the 3[rd] respondent-defacto complainant, who is the wife of the petitioner, has filed Anx-II sworn affidavit dated 4.11.2014 before the learned Magistrate stating that the injury has been sustained while the son was playing cricket. The learned Magistrate recorded the statement and bail was granted to the petitioner. But, without ascertaining the veracity of the affidavit and also the sworn statement given by the wife before the Magistrate, the 2[nd] respondent-Investigating Officer has filed the impugned Anx-V final report/charge sheet in the abovesaid Crime No.2181/2014 of Thiruvalla Police Station, which has led to the institution of C.C.No.2223/2014 , which is now pending before the Judicial First Class Magistrate's Court, Thiruvalla, Pathanamthitta district. Further it is pointed out that the wife of the petitioner was not in cordial terms with the petitioner and that she has filed O.P.No.299/2016 before the Family Court, Thiruvalla, seeking divorce. It is pointed out hat the 3[rd] respondent-defacto ::5:: Crl.M.C.Nos.1214/2018 & 1639/2019 complainant does not have any consistency and even if the trial is conducted there is no possibility for a conviction. It is in the light of these factual averments that the petitioner has filed the instant Crl.M.C seeking the aforementioned prayers. 5. After having heard both sides and the learned Prosecutor, it can be seen from Anx-II sworn affidavit and Anx-III sworn statement filed by none other than the 3[rd] respondent-defacto complainant that the child sustained injury while playing cricket and that she has not serious complaint against the petitioner. On that basis the learned Magistrate has granted bail to the petitioner. The abovesaid aspects borne out from Anx-II affidavit and Anx-III sworn statement has not been property considered by the investigation agency in the correct perspective. 6. After hearing both sides, this Court is of the view that there is no possibility of conviction, if the matter is taken up for trial. Further continuation of the impugned prosecution steps would be a futile exercise and would amount to wastage of time of Police authorities and judicial fora. In that view of the matter, this Court is inclined to consider the plea for quashment of the impugned criminal proceedings. 7. Accordingly, it is ordered that the impugned Anx-V Final ::6:: Crl.M.C.Nos.1214/2018 & 1639/2019 Report in Crime No.2181/2014 of Thiruvalla Police Station, which has led to the institution of C.C.No.2223/2014 before the Judicial First Class Magistrate's Court, Thiruvalla, as against the petitioner herein and all further steps taken in pursuance thereof will stand quashed. The petitioner will produce certified copies of this order before the court below concerned as well as the Investigating Officer for necessary information. The Office of the Advocate General will also forward a copy of this order to the Investigating Officer concerned. With these observations and directions, the above Crl.M.C will stand finally disposed of. Crl.M.C.No.1639/2019 8. The petitioner is the sole accused in C.C.No.122/2016 on the file of the Judicial First Class Magistrate's Court, Thiruvalla, arising out of Crime No.759/2015 of Thiruvalla Police Station, which has been registered for offences punishable under Secs.324, 341 & 506(ii) of the I.P.C. Anx-A is the final report/charge sheet filed in the abovesaid crime. The defacto complainant is none other than the son-in-law of the petitioner-accused. The petitioner's daughter had already filed O.P.No.299/2016 before the Family Court, Thiruvalla, and the same was decreed in terms of Anx-B compromise petition. ::7:: Crl.M.C.Nos.1214/2018 & 1639/2019 The defacto complainant in this case is the son-in-law of the petitioner-accused herein. The defacto complainant herein is the petitioner in Crl.M.C.No.1214/2018, which has already been allowed as dealt with hereinabove. Since the parties have settled all the disputes between them, the plea for quashment of the impugned criminal proceedings could be considered. 9. In a catena of decisions, the Apex Court has held that, in appropriate cases involving even non-compoundable offences, the High Court can quash prosecution by exercise of the powers under Sec.482 of the Cr.P.C., if the parties have really settled the whole dispute or if the continuance of the prosecution will not serve any purpose. Here, this Court finds a real case of settlement between the parties and it is also found that continuance of the prosecution in such a situation will not serve any purpose other than wasting the precious time of the court, when the case ultimately comes before the court. On a perusal of the petition and on a close scrutiny of the investigation materials on record and the affidavits of settlement and taking into account the attendant facts and circumstances of this case, this Court is of the considered opinion that the legal principles laid down by the Apex Court in the cases as in _**Gian Singh** v._ _**State of Punjab**_ reported in 2013 (1) SCC (Cri) 160 = (2012) 10 SCC 303 and ::8:: Crl.M.C.Nos.1214/2018 & 1639/2019 _**Narinder Singh and others v. State of Punjab and anr**_ . reported in (2014) 6 SCC 466, more particularly paragraph 29 thereof, could be applied in this case to consider the prayer for quashment. 10. Accordingly, it is ordered that the impugned Anx-A Final Report in Crime No. 759/2015 of Thiruvalla Police Station, which has led to the institution of C.C.No.122/2016 on the file of the Judicial First Class Magistrate's Court, Thiruvalla, and all further proceedings taken in pursuance thereof as against the petitioner herein will stand quashed. The petitioner will produce certified copies of this order before the court below concerned as well as the Investigating Officer concerned. The Office of the Advocate General will also forward a copy of this order before the Investigating Officer concerned. With these observations and directions, the above Crl.M.C will stand finally disposed of. **Sd/ALEXANDER THOMAS, Judge.** bkn/- ::9:: Crl.M.C.Nos.1214/2018 & 1639/2019 ## **APPENDIX OF Crl.MC 1214/2018** ## **PETITIONER'S/S EXHIBITS:** ## **ANNEXURE 1** **TRUE COPY OF THE F.I.R REGISTERED BY THE 2ND RESPONDENT AS CRIME NO.2181/2014 DATED 1.11.2014 OF THIRUVALLA POLICE STATION.** **ANNEXURE II TRUE COPY OF THE AFFIDAVIT FILED BY THE WIFE OF THE PETITIONER (SMT. SUMINA CHERIAN) BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT-1, THIRUVALLA DATED 4.11.2014** **ANNEXURE III TRUE COPY OF THE SWORN STATEMENT RECORDED BY THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT -1, THIRUVALLA WIFE OF THE PETITIONER SMT. SUMINA CHERIAN DATED 4.11.2017** **ANNEXURE IV TRUE COPY OF THE ORDER PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE ,THIRUVALLA DATED 5.11.2014 IN C.M.P NO.8468/2014 IN CRIME NO.2181/2014 OF THIRUVALLA POLICE STATION.** **ANNEXURE V CERTIFIED COPY OF THE FINAL REPORT FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, THIRUVALLA BY THE 2ND RESPONDENT DATED 17.11.2014 IN CRIME NO.2181/2014 OF THIRUVALLA POLICE STATION.** ::10:: Crl.M.C.Nos.1214/2018 & 1639/2019 **ANNEXURE VI TRUE COPY OF THE PETITION FILED BY THE WIFE OF THE PETITIONER AS OP. NO.299/2016 BEFORE THE FAMILY COURT, THIRUVALLA DATED 29.9.2016** ## **APPENDIX OF Crl.MC 1639/2019** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A CERTIFIED COPY OF THE FINAL REPORT NUMBERED 67/2016 DATED 20.11.2015 INCC 22/16. ANNEXURE B A COPY OF THE COMPROMISE PETITION IN O.P.NO.299/2016 DATED 06.08.2018 FILED BEFORE THE FAMILY COURT,THIRUVALLA. ANNEXURE C A TRUE COPY OF THE OP.(DIV)NO.299/2016 ON THE FILES OF THE FAMILY COURT,THIRUVALLA.**