Crl.M.C No. 796 of 2025: Aslam Shahar Khan, Muhammed and Laila v. State of Kerala and Fathimathu Sunaina

**2025:KER:23485** **==> picture [58 x 58] intentionally omitted <==** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 14[TH] DAY OF MARCH 2025 / 23RD PHALGUNA, 1946** **CRL.MC NO. 796 OF 2025** **CRIME NO.340/2022 OF Beypore Police Station, Kozhikode** **AGAINST CC NO.1108 OF 2022 OF JUDICIAL MAGISTRATE OF FIRST CLASS-V, KOZHIKODE** **PETITIONERS/ACCUSED NO.1 TO 3:** - **1 ASLAM SHAHAR KHAN AGED 37 YEARS** **S/O MUHAMMED, CHANNAMKUNNATH HOUSE, CHEDHAMANGALUR MUKKOM P.O, KOZHIKKODE, PIN - 673602** - **2 MUHAMMED** **AGED 79 YEARS** **S/O., ABOOBACKER, CHANNAMKUNNATH HOUSE, CHEDHAMANGALUR MUKKOM P.O, KOZHIKKODE, PIN - 673602** - **3 LAILA AGED 60 YEARS** **W/O MUHAMMED, CHANNAMKUNNATH HOUSE, CHEDHAMANGALUR MUKKOM P.O, KOZHIKKODE, PIN - 673602** **BY ADVS. M.K.MUFEED MUHAMMED YASIL M.A.AHAMMAD SAHEER E.A.HARIS** ## **RESPONDENTS/STATE & COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031** Crl.M.C.No. 796 of 2025 **2025:KER:23485** ..2.. **==> picture [57 x 57] intentionally omitted <==** **2 FATHIMATHU SUNAINA AGED 27 YEARS D/O, ABDUL NAZAR, C.V HOUSE, PALOONNIVAYAL ARAKKINAR P.O, KOZHIKKOD, PIN - 673028** **BY ADV P.B.MUHAMMED AJEESH - R2** ## **OTHER PRESENT:** ## **ADV E.C. BINEESH – PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14.03.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No. 796 of 2025 **2025:KER:23485** ..3.. **==> picture [57 x 57] intentionally omitted <==** **O R D E R** _Dated this the 14[th] day of March, 2025_ ## _**B.S.Joshi and Others v. State of Haryana and another**_ [(2003) 4 SCC 675] held that the offence under Section 498A can be quashed by the High Court exercising its inherent power under Section 482 Cr.P.C (now Section 528 of BNSS, 2023), though such offence is not compoundable under Section 320. Relying on _**State of Karnataka v. L. Muniswamy**_ [(1977) 2 SCC 699], a two Judges Bench in _**B.S. Joshi**_ (Supra) held that ends of justice are higher than ends of mere law, though justice has got to be administered according to laws made by legislature. The fact that there is no reasonable likelihood of conviction, in the wake of settlement between the parties, was taken stock of. The following findings in _**B.S.Joshi**_ (supra) are relevant and extracted here below: _“What would happen to the trial of the case where the wife does not support the imputations made in the FIR of the type in question. As earlier_ Crl.M.C.No. 796 of 2025 **2025:KER:23485** ..4.. **==> picture [57 x 57] intentionally omitted <==** _noticed, now she has filed an affidavit that the FIR was registered at her instance due to temperamental differences and implied imputations. There may be many reasons for not supporting the imputations. It may be either for the reason that she has resolved disputes with her husband and his other family members and as a result thereof she has again started living with her husband, with whom she earlier had differences or she has willingly parted company and is living happily on her own or has married someone else on the earlier marriage having been dissolved by divorce on consent of parties or fails to support the prosecution on some other similar grounds. In such eventuality, there would almost be no chance of conviction. Would it then be proper to decline to exercise power of quashing on the ground that it would be permitting the parties to compound noncompoundable offences? The answer clearly has to be in the "negative". It would, however, be a different matter if the High Court on facts declines the prayer for quashing for any valid reasons including lack of bona fides.”_ **2.** The dictum laid down in _**B.S.Joshi**_ (supra) was doubted along with that laid down in other cases and referred to and considered by a three Judges Bench of the Hon'ble Crl.M.C.No. 796 of 2025 **2025:KER:23485** **==> picture [59 x 8] intentionally omitted <==** **==> picture [57 x 57] intentionally omitted <==** Supreme Court in _**Gian Singh v. State of Punjab and another**_ [(2012) 10 SCC 303]. _**B.S.Joshi**_ (supra), along with other cases, were confirmed by the Supreme Court. It is relevant to note that the subject matter in _**B.S.Joshi**_ (supra) was specifically with reference to the offences under Section 498A and 406 of the Indian Penal Code. **3.** In the facts at hand, petitioners are accused nos.1 to 3 in Crime No.340/2022 of Beypore Police Station, Kozhikode, now pending as C.C.No.1108/2022 before the Judicial First Class Magistrate Court-V, Kozhikode. The offences alleged are under Sections 498A and 406, read with Section 34 of the Indian Penal Code. The petitioners seek quashment of the entire proceedings in the above Calendar Case, on the strength of the settlement arrived at by and between the parties. **4** . Heard the learned counsel for the petitioners, learned counsel for the 2[nd] respondent/defacto complainant and the learned Public Prosecutor. Perused the records. Crl.M.C.No. 796 of 2025 **2025:KER:23485** ..6.. **==> picture [57 x 57] intentionally omitted <==** **5.** When this Crl.M.C was moved, this Court directed to record the statement of the defacto complainant. The said direction was complied and the statement was handed over. On perusal of the same, it is clear that the issues between the petitioners and the defacto complainant are settled amicably and that the defacto complainant received her gold ornaments from the 1st petitioner. The instant Crl.M.C was filed with the knowledge of the defacto complainant, wherefore, she has no objection in quashing the criminal proceedings against the petitioners. That apart, it is noticed that, along with this Crl.M.C, an affidavit has been sworn to by the defacto complainant (2[nd] respondent herein) as Annexure-A3, wherein she would unequivocally state that the disputes have been settled and the 1[st] accused and the defacto complainant are legally separated. The defacto complainant would also swear that she has no objection in quashing the case against the petitioners and that the affidavit is sworn to on her own volition, without any compulsion, whatsoever. This Court is therefore Crl.M.C.No. 796 of 2025 **2025:KER:23485** **==> picture [59 x 8] intentionally omitted <==** **==> picture [57 x 57] intentionally omitted <==** convinced that the settlement arrived at is genuine and bonafide. Learned Counsel for the 2[nd] respondent/defacto complainant would also endorse that the quashment sought for can be allowed. **6.** In the light of the above referred facts, this Court is of the opinion that the necessary parameters, as culled out in _**B.S.Joshi**_ (supra) and _**Gian Singh**_ (Supra), are fully satisfied. This court is convinced that further proceedings against the petitioners will be a futile exercise, inasmuch as the disputes have already been settled. There is little possibility of any conviction in the crime. _Dehors_ the settlement arrived at by and between the parties, if they are compelled to face the criminal proceedings, the same, in the estimation of this Court, will amount to abuse of process of Court. The quashment sought for would secure the ends of justice. This Court also notice that the offence under Section 406 is compoundable, which is all the more a reason to accept the compromise between the parties. Crl.M.C.No. 796 of 2025 **==> picture [59 x 9] intentionally omitted <==** **==> picture [57 x 57] intentionally omitted <==** **2025:KER:23485** In the circumstances, this Crl.M.C. is allowed. Annexure-A1 Final Report and all further proceedings in C.C.No.1108/2022 of the Judicial First Class Magistrate Court-V, Kozhikode, are hereby quashed. Sd/- **C. JAYACHANDRAN JUDGE** TR Crl.M.C.No. 796 of 2025 **2025:KER:23485** ..9.. **==> picture [57 x 57] intentionally omitted <==** ## **APPENDIX OF CRL.MC 796/2025** ## **PETITIONER ANNEXURES** **Annexure-A1 CERTIFIED COPY OF THE FINAL REPORT DATED 20/11/2022 IN CRIME NO.340/2022 OF BEYPORE POLICE STATION IN THE SAID CRIME Annexure-A2 A TRUE COPY OF THE MEMO EVIDENCE Annexure-A3 ORIGINAL AFFIDAVIT DATED 19.12.2024 OF THE 2ND RESPONDENT SIGNED BEFORE AN ADVOCATE**