Charley @ Tintu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 29[TH] DAY OF MARCH 2023 / 8TH CHAITHRA, 1945** ## **CRL.MC NO. 810 OF 2022** **CP 40/2021 OF JFCM (TEMPORARY) CHAVARA** **PETITIONER:** CHARLEY @ TINTU,S/O GILBERT, AGED 38 YEARS, ARATTUKULANGARA VEETTIL, NEAR VIKASANA JUNCTION, THUMBOLI WARD, THUMBOLI VILLAGE, ALAPPUZHA DISTRICT NOW RESIDING AT PUTHENTHOPPIL, PUTHENTHURA VILLAGE, NEENDAKARA VILLAGE, KOLLAM DISTRICT KOLLAM, PIN - 691582 BY ADVS. PRATHEESH.P ANJANA KANNATH T.S.SREEKUTTY ## **RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 STATION HOUSE OFFICER, CHAVARA POLICE STATION, KOLLAM, PIN - 691583 3 MINIMOL, AGED 28 YEARS, PALLIKKATHAYIL, THUMBOLI, PATHIRAPPALLY, ALAPPUZHA NOW RESIDING AT PUTHANTOPPIL VEEDU, PUTHENTHURA, NEENDAKARA, KOLLAM, PIN - 691582 BY ADVS. SRI.G.SUDHEER, PUBLIC PROSECUTOR SRI.AMAR PRASANTH G. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29.03.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.810 of 2022 2 ## K.BABU, J . -------------------------------------Crl.M.C.No.810 of 2022 --------------------------------------Dated this the 29[th ] day of March, 2023 ## O R D E R This Crl.M.C has been filed to quash Annexure 1 FIR and Annexure 2 Final Report in Crime No.1184/2021 of Chavara Police Station, and all further proceedings in C.P No.40/2021 on the file of the Judicial First Class Magistrate Court (Temporary), Chavara. 2. The petitioner is the husband of the defacto complainant/respondent No.3. The offences alleged against the petitioner are punishable under Sections 498-A, 326 and 307 of IPC. 3. The prosecution case is that the petitioner mentally and physically ill-treated respondent No.3 demanding dowry. It is alleged that on 02.11.2021 at 11.00 p.m, the petitioner voluntarily caused grievous hurt to her. It is further alleged that the petitioner caused grievous hurt to respondent No.3 with the knowledge that if he by that act caused death, he would be guilty of murder. 4. Heard Sri. Pratheesh P, the learned counsel appearing for the petitioner, Sri.G.Sudheer, the learned Public Prosecutor Crl.M.C.No.810 of 2022 3 appearing for respondent Nos.1 and 2 and Sri.Amar Prasanth.G, the leaned counsel appearing for respondent No.3. 5. The learned counsel for the petitioner submitted that the allegations are baseless and that the ingredients of the offences under Sections 326 and 307 are not attracted. It is submitted that respondent No.3/the defacto complainant has not suffered any injury and the registration of the crime was due to a marital dispute. The learned counsel for the petitioner further submitted that the parties have now settled the entire dispute and are living together as husband and wife. 6. The learned Public Prosecutor opposed the petition on the ground that the offences alleged against the petitioner are heinous in nature. 7. The learned counsel for respondent No.3 submitted that respondent No.3/the defacto complainant has settled the dispute with the petitioner and that they are harmoniously living together in the matrimonial home. The defacto complainant filed an affidavit stating that the entire dispute has been settled between the parties. The defacto complainant stated in the affidavit that she has no Crl.M.C.No.810 of 2022 4 subsisting grievances against the petitioner and has no objection in pretrial termination of the proceedings. 8. The learned Public Prosecutor, on instructions, submitted that the matter was enquired into through the Investigating Officer, who has taken statement of the defacto complainant, and it is reported that the dispute between the parties has been amicably settled. The learned Public Prosecutor also submitted that the parties are living together. 9. The Apex Court In Gian Singh v. State of Punjab [2012 (4) KLT 108 (SC)], Narinder Singh and others v. State of Punjab and Others [(2014) 6 SCC 466], and State of Madhya Pradesh v. Lakshmi Narayan and Others [(2019) 5 SCC 688] considered the power of the High Court to quash criminal proceedings in FIR/complaint in exercise of its inherent jurisdiction where the offences are not compoundable under Section 320 Cr.P.C. ## 10. In Gian Singh (supra) the Apex Court held thus:- “57. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding 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 it has to be Crl.M.C.No.810 of 2022 5 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 F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and 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 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 proceeding or continuation of the criminal proceeding 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.” Crl.M.C.No.810 of 2022 6 ## 11. In Narinder Singh and others (supra) the Apex Court held thus:- “29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases. 29.6. Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore are to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delicate parts of the body, nature of weapons used, etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship. 29.7. While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Crl.M.C.No.810 of 2022 7 Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the chargesheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime.” 12. In State of Madhya Pradesh v. Lakshmi Narayan and Others (supra), approving the ratio in Gian Singh and Narinder Singh a three-Judge Bench of the Apex Court held that in the exercise of powers under Section 482 Cr.P.C., on the ground that the parties have resolved their entire dispute between themselves, High Court would not rest its decision merely because there is a mention of a penal section of a heinous crime in the FIR or charge. The Apex Court added that it would be open to the High Court to Crl.M.C.No.810 of 2022 8 examine as to whether incorporation of a penal section of heinous crime is there for the sake of it or the prosecution has collected sufficient evidence which if proved would lead to framing of charges under the said penal section. 13. In Kapil Gupta v. State of NCT of Delhi and Another (2022 SCC OnLine SC 1030) , following Narinder Singh and others (supra), the Apex Court held that though the Court should be slow in quashing the proceedings wherein heinous and serious offences are involved, the High Court is not foreclosed from examining as to whether there exists material for incorporation of such an offence or as to whether there is sufficient evidence which if proved would lead to proving the charge for the offence charged with. The Apex Court further observed that High Court has also to consider whether the settlement between the parties will result in harmony between them, which may improve their mutual relationship. The Supreme Court added that the stage of the proceedings at which the application for quashing the proceedings is brought before the Court is also to be taken into account. 14. I have gone through the materials placed before the Court. Crl.M.C.No.810 of 2022 9 It is submitted from the bar that pendency of the criminal proceedings will adversely affect the marital tie between the parties. It is discernible from the records that the defacto complainant feels that the parties would be faced with the agony of undergoing the trial and that if the criminal trial is permitted to go on it will end in acquittal. If the request of the parties is denied, it will be amounting to miseries in their marital life. It is further seen that though there is mention of the offence under Section 307 IPC in the FIR the incorporation of the penal section is only for the sake of it. This Court, therefore, feels that all further proceedings pursuant to the registration of FIR in Crime No.1184/2021 of Chavara Police Station are liable to be quashed. In the result, the Criminal M.C is allowed. Annexure 2 Final Report in Crime No.1184/2021 of Chavara Police Station and all further proceedings in C.P No.40/2021 on the file of the Judicial First Class Magistrate Court-I, Chavara stand hereby quashed. Sd/- K.BABU, JUDGE KAS Crl.M.C.No.810 of 2022 10 ## **APPENDIX OF CRL.MC 810/2022** PETITIONER ANNEXURES Annexure1 THE CERTIFIED COPY OF FIR IN CRIME NO.1184/2021 OF CHAVARA POLICE STATION, DATED 3.11.2011 Annexure2 THE CERTIFIED COPY OF FINAL REPORT IN CRIME NO.1184/2021 OF CHAVARA POLICE STATION DATED 6.12.2021 Annexure3 THE AFFIDAVIT REGARDING SETTLEMENT SWORN BY THE 3RD RESPONDENT ON 18.01.2022