Dineshan and Radhakrishnan v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** ## **MONDAY, THE 15TH DAY OF JULY 2013/24TH ASHADHA, 1935** ## **Crl.MC.No. 2875 of 2013 () ---------------------------** **(AGAINST THE JUDGMENT IN CC 134/2007 of J.M.F.C.-II, ERNAKULAM) (CRIME NO. 19/2007 OF CHERANALLUR POLICE STATION , ERNAKULAM DISTRICT)** ## **PETITIONERS/ACCUSED NOS. 1 AND 2:** **--------------------------------------------------------** ## **1. DINESHAN AGED 38 YEARS** - **S/O. MADHAVAN, PULICKATHARAPARAMBU, CHERANALLUR NEAR YESORAM COLONY, CHERANALLUR VILLAGE ERNAKULAM DISTRICT, PIN-682034.** ## **2. RADHAKRISHNAN AGED 45 YEARS** - **S/O. MADHAVAN, PULICKATHARAPARAMBU, CHERANALLUR NEAR YESORAM COLONY, CHERANALLUR VILLAGE ERNAKULAM DISTRICT, PIN-682034.** **BY ADVS.SRI.K.J.MOHAMMED ANZAR SRI.K.ABDUL NASSAR** ## **CRESPONDENTS/STATE/DEFACTO COMPLAINANT:** **---------------------------------------------------------------------------** ## **1. STATE OF KERALA** - **REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM, PIN-682031.** **2. THE SUB INSPECTOR OF POLICE CHERANALLUR POLICE STATION, CHERANALLUR ERNAKULAM DISTRICT, PIN-682034.** **3. BEENA RANI @ MEENA, AGED 35 YEARS** **D/O. BHASKAR DAS, MANALIKKARA HOUSE PULICKILLAM EAST ROAD, CHEMBUMUKKU, KAKKANADU COCHIN-30, ERNAKULAM DISTRICT, PIN-682030.** **R3 BY ADV. SRI.A.D.SURESH BABU R1 AND R2 BY PUBLIC PROSECUTOR SMT.S.HYMA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **MNS** ## **Crl.MC.No. 2875 of 2013 ()** **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES :** **-------------------------------------------** **ANNEXURE A1- TRUE COPY OF THE FIR IN CRIME NO. 19/2007 OF CHERANALLUR POLICE STATION.** **ANNEXURE A2- TRUE COPY OF THE FINAL REPORT IN C.C.NO. 134/2007 OF JFCM COURT-II, ERNAKULAM.** **ANNEXURE A3- TRUE COPY OF MEMORANDUM OF AGREEMENT DATED 7-5-2012 ENTERED INTO BETWEEN THE 3RD RESPONDENT AND THE 2ND PETITIONER BEFORE THE DISTRICT MEDIATION CENTRE, ERNAKULAM.** **ANNEXURE A4- TRUE COPY OF JUDGMENT DATED 19-2-2013 IN O.P.NO. 993/2012 OF THE FAMILY COURT, ERNAKULAM.** **ANNEXURE A5- AGREEMENT DATED 13-06-2013 ENTERED INTO BETWEEN THE PETITIONERS AND THE 3RD RESPONDENT FOR FILING CRL.MC BEFORE THE HON'BLE HIGH COURT OF KERALA.** **ANNEXURE6- TRUE COPY OF THE SUMMONS DATED 20-4-2013 IN CC NO. 134/2013 OF JFCM COURT-II, ISSUED TO THE 1ST PETITIONER.** ## **RESPONDENT(S)' ANNEXURES:NIL** **------------------------------------------------** ## **//TRUE COPY//** **P.A TO JUDGE** ## **V.K.MOHANAN, J.** **---------------------------------------Crl.M.C.No.2875 of 2013 ----------------------------------------** Dated this the 15th day of July, 2013 ## **O R D E R** The above petition is filed under Section 482 of the Criminal Procedure Code (for short 'Cr.P.C.'), at the instance of the petitioners, who are accused Nos.1 & 2 in C.C.No.134/2007 of the Judicial First Class Magistrate CourtII, Ernakulam which is a case instituted upon the police report [in Crime No. 19/2007 of the Cheranallur Police Station] for the offences punishable under Sections 323, 324, 325 r/w Section 34 of I.P.C. with a prayer to quash the Annexure-A2 final report and all further proceeding in C.C.No.134/2007 pending on the files of the Judicial Magistrate of the First Class Court-II, Ernakulam as the matter is settled out of court. 2. The allegation in the above case is that the 2nd petitioner is the husband of the de facto complainant who is the third respondent herein and their marriage was solemnized on 07.09.1997 in accordance with the Hindu religious rites and while so, difference of opinion occurred among the spouse especially when the de facto complainant was residing along with the accused in the house of the 2nd petitioner which 2 **Crl.M.C.No.2875 of 2013** resulted in filing various petitions before the police as well as the various courts. According to the allegation in the above case the petitioners/accused has committed the offences punishable under Section 323, 324, 325 r/w Section 34 of IPC. Now the case of the petitioners are that as part of settlement all other matrimonial issues and the criminal case are also settled between the petitioners and the de facto complainant. Accordingly, the mutual divorce was obtained and they have seperated for ever. Annexure-A4 is the judgment of the Family Court, Ernakulam by which the marriage between the 2nd petitioner and the de facto complainant is dissolved. AnnexureA5 is the agreement arrived into between the petitioners and de facto complainant. 3. Heard the learned counsel for the petitioners as well as the 3rd respondent. I have also heard the learned Public Prosecutor. 4. The learned counsel for the petitioners submitted that during the pendency of the above case, the matter is settled amicably between the parties to the dispute which is the subject matter of the above case. Therefore, the continuation of the proceedings in the above case is abuse of 3 **Crl.M.C.No.2875 of 2013** process of law and proceedings. 5. The learned counsel for the 3rd respondent who on the basis of specific instruction received from the respondent submitted that the above respondent, who is the de facto complainant does not intend to proceed any further against the petitioners and she has no grievance against them. 6. I have carefully considered the above submissions of the respective counsel. I have verified the documents and materials produced along with the above petition. In the given facts and circumstances of the case and especially in the light of the settlement arrived between the parties to the dispute, the learned Public Prosecutor has also no objection in allowing the above petition. 7. Having regard to the facts and circumstances involved in the case, it can be seen that the offences involved in the above case are only Sections 323, 324, 325 r/w Section 34 of I.P.C. which are more or less personal in nature and no public interest is involved. It is pertinent to note that though such offences are involved, the real parties to the dispute approached this Court after having amicably settled the matter. From the submission made by the counsel for the 3rd ## **Crl.M.C.No.2875 of 2013** 4 respondent, it appears to me that the de facto complainant has no further grievance against the petitioners/accused in the light of the settlement arrived by them. In this juncture, it is relevant to note the decision of the Honourable Apex Court reported in **Gian Singh** v. **State of Punjab** [2012(4) KLT 108 (SC)]. In Gian Singh's case, the Supreme Court has held as follows:- _“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 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.”_ ## It is further held as follows:- “...... _... But the criminal cases having overwhelmingly and pre-dominatingly civil_ 5 **Crl.M.C.No.2875 of 2013** _flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercandile, 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........”_ According to me, in the light of the facts and circumstances involved in the present case and particularly in view of the settlement arrived in the present case, the dictum laid in the above decision is applicable in the present case. According to me, as the parties to the dispute settled the issues amicably, it is the duty of this Court to promote and encourage such settlement, instead of compelling the parties to go on with the dispute. It is pertinent to note that since the matter is settled out of court, in the event of proceeding with the trial, there would not have any fruitful prosecution resulting the conviction 6 **Crl.M.C.No.2875 of 2013** of the accused, rather the net result would be sheer waste of judicial time and abuse of process of the court and proceedings. Thus, according to me, following the decisions cited supra, this Criminal M.C. can be allowed granting the relief as sought for. In the result, this Crl.M.C. is allowed, quashing Annexure -A2 and all further proceedings pending against the petitioners in C.C.No. 134 of 2007 of the Judicial First Class Magistrate Court-II, Ernakulam. **V.K.MOHANAN Judge** mns/