Elsa Merine Skaria v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** ## **MONDAY, THE 19TH DAY OF AUGUST 2013/28TH SRAVANA, 1935** ## **Crl.MC.No. 3470 of 2013 ()** **--------------------------CRIME NO. 807/2012 OF E.T. SOUTH POLICE STATION, ERNAKULAM -------------------** ## **PETITIONER/DEFACTO COMPLAINANT :** **-----------------------------------------------------------** **ELSA MERINE SKARIA, AGED 25 YEARS D/O E.M. SKARIA, EDATHAMARA HOUSE, PERUMANOOR P.O NOBERT PAVANA ROAD, ERNAKULAM, PIN - 682 015.** **BY ADVS.SMT.K.TRESA RANI GEORGE SRI.P.ADAM AMBROSE** ## **RESPONDENTS/STATE AND ACCUSED 1 TO 3 :** **--------------------------------------------------------------------** ## **1. STATE OF KERALA,** - **REP. BY ITS PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM 682 031.** **2. SIBISH KURISSINGAL ABRAHAM, AGED 31 YEARS, S/O K.G. ABRAHAM, KURISSINGAL HOUSE, KADAVANTHRA ERNAKULAM, PIN- 682020** **3. K.G. ABRAHAM, KURISSINGAL HOUSE, KADAVANTHRA,** **ERNAKULAM 682 020.** **4. LISSY ABRAHAM, W/O K.G ABRAHAM, KURISSINGAL HOUSE, KADAVANTHRA ERNAKULAM, PIN- 682020.** **R1 BY PUBLIC PROSECUTOR SMT. S. HYMA** **R2, R3 & R4 BY ADVS. SRI.S.RAJEEV** **SRI.K.K.DHEERENDRAKRISHNAN** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19-08-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Mn** **...2/-** **Crl.MC.No. 3470 of 2013 ()** ## **--------------------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS :** **-------------------------------------** **ANNEXURE I TRUE COPY OF THE COMPROMISE PETITION IN OP 966/2012 FILED BEFORE THE FAMILY COURT, ERNAKULAM.** **ANNEXURE II CERTIFIED COPY OF THE CHARGE SHEET IN CC NO. 186/2013 PENDING BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE (ECO.O), ERNAKULAM.** **ANNEXURE III CERTIFIED COPY OF THE FIR IN CRIME NO. 807/12 OF THE E.T SOUTH POLICE STATION, ERNAKULAM** **RESPONDENT(S)' EXHIBITS : NIL** **----------------------------------------------------------** **//TRUE COPY//** **P.A. TO JUDGE** **Mn** ## **V.K.MOHANAN, J.** **------------------------------Crl.M.C.No.3470 of 2013 ------------------------------Dated this the 19[th] day of August, 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 petitioner, who is the de facto complainant in crime No.807/12 of Ernakulam Town South Police station, wherein the offences alleged are under Sections 323, 498(A), 403, 406, 420, 424 and 34 of IPC. 2. The case of the prosecution is that the 2[nd] respondent/1[st] accused in the above crime married the petitioner on 12.1.2012 in accordance with the customs and rituals prevailing among the Christian religion and prior to that, their marriage was registered as per the Special Marriage Act and while the de facto complainant was residing along with the 2[nd] respondent/1[st] accused in abroad as well as at her matrimonial home, the accused **Crl.M.C.No.3470 of 2013** 2 harassed the de facto complainant both physically and mentally and misappropriated the gold ornaments and clandestinely removed the Passport and driving licence of the de facto complainant and thereby cheated her and thus the accused 3 in numbers have committed the offences punishable u/s.323, 498(A), 403, 406, 420, 424 and 34 of IPC. The police on completing the investigation, preferred a report based upon which, the court below took cognizance and instituted C.C.No.186/13 in the court of Additional Chief Judicial Magistrate (Economic offences), Ernakulam. 3. It is the further case of the petitioner that because of the difference of opinion exists between the spouses, besides initiating criminal case and proceedings, the petitioner approached the Family court at Ernakulam by filing O.P.No.966/12 for realisation of the gold ornaments and money. Thus, while the above original petition was pending before the Family court, the entire disputes both criminal and matrimonial are settled **Crl.M.C.No.3470 of 2013** 3 amicably and accordingly the petitioner herein, who is the petitioner before the Family court, and respondent nos.2 to 4 herein, who are respondent nos.1 to 3 in the Family court, filed a compromise petition before the Family court, under Order XXIII Rule 3 and Section 151 of C.P.C., a copy of which produced along with this M.C. as Annexure-I. As per Clause 5 of Annexure-I, it is incumbent upon the petitioner to approach this Court with a prayer to quash both the FIR and final report pending against the respondents herein. 4. Heard the learned counsel for both the petitioner as well as the respondents. I have also heard the learned Public Prosecutor. 5. Thus according to the petitioner, she preferred the present petition as agreed in Clause 5 of Annexure-I compromise petition. Learned counsel appearing for respondent nos.2 to 4 also submitted that the entire disputes are settled and to give effect to the terms and conditions incorporated in Annexure-I compromise petition, **Crl.M.C.No.3470 of 2013** 4 the criminal proceedings pending against them have to be quashed. 6. The learned counsel for the petitioner/de facto complainant 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 process of law and proceedings. 7. The learned counsel for respondent nos.2 to 4/ accused nos.1 to 3, who on the basis of specific instruction received from the respondents, submitted that the matter is settled out of court and pleaded for dropping the proceedings pending against them. 8. I have carefully considered the above submissions of the respective counsel. Annexure-I is the compromise petition dated 13.8.2013 entered into between the petitioner/de facto complainant and respondent nos.2 to 4/accused nos.1 to 3. I have verified the documents and **Crl.M.C.No.3470 of 2013** 5 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. 9. 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 u/s.323, 498(A), 403, 406, 420, 424 and 34 of IPC, 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 petitioner/de facto complainant, it appears to me that the de facto complainant has no further grievance against respondent nos.2 to 4/accused nos.1 to 3, in the light of the settlement arrived by them. In this juncture, it is relevant to note the decisions of the Honourable Apex Court reported in **Gian** **Crl.M.C.No.3470 of 2013** 6 **Singh** v. **State of Punjab** [2012(4) KLT 108(SC)] and **Jitendra Raghuvanshi and Others** v. **Babita Raghuvanshi and another** [2013 (1) KLD 817 (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 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 **Crl.M.C.No.3470 of 2013** 7 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........” ## Further, in **Jitendra Raghuvanshi's case,** the Apex Court has held as follows:- “7. It is not in dispute that matrimonial disputes have been on considerable increase in recent times resulting in filing of complaints under Sections 498A and 406 of I.P.C. not only against the husband but also against the relatives of the husband. The question is when such matters are resolved either by the wife agreeing to rejoin the matrimonial home or by mutual settlement of other pending disputes for which both the sides approached the High Court and jointly prayed for quashing of the criminal proceedings or the FIR or complaint by the wife under Sections 498A and 406 of I.P.C., whether the prayer can be declined on the sole ground that since the offences are noncompoundable under Section 320 of the Code, it would be impermissible for the court to quash the criminal proceedings or FIR or complaint. 8. It is not in dispute that in the case on hand subsequent to the filing of the criminal complaint under Sections 498A and 406 of IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961, with the help and intervention of family members, friends and **Crl.M.C.No.3470 of 2013** 8 well-wishers, the parties concerned have amicably settled their differences and executed a compromise/ settlement. Pursuant thereto, the appellants filed the said compromise before the Trial Court with a request to place the same on record and to drop the criminal proceedings against the appellants herein. It is also not in dispute that in additional to the mutual settlement arrived at by the parties, respondent/-wife has also filed an affidavit stating that she did not wish to pursue the criminal proceedings against the appellants and fully supported the contents of the settlement deed. It is the grievance of the appellants that no only the Trial Court rejected such prayer of the parties but also the High Court failed toe exercise its jurisdiction under Section 482 of the Code only on the ground that the criminal proceedings relate to the offences punishable under Sections 498A and 406 of IPC which are non-compoundable in nature.” “12. In our view, it is the duty of the Courts to encourage genuine settlements of matrimonial disputes, particularly, when the same are on considerable increase. Even if the offences are non-compoundable, if they relate to matrimonial disputes and the Court is satisfied that the parties have settled the same amicably and without any pressure, we hold that for the purpose of securing ends of justice, Section 320 of the Code would not be a bar to the exercise of power of quashing of FIR, complaint or the subsequent criminal proceedings. 13. There has been an outburst of matrimonial disputes in recent times. The institution of marriage occupies an important place and it has an important role to play in the society. Therefore, every effort should be made in the interest of the individuals in order to enable them to settle down in life **Crl.M.C.No.3470 of 2013** 9 and live peacefully. If the parties ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a Court of law, in order to do complete justice in the matrimonial matters, the Courts should be less hesitant in exercising its extraordinary jurisdiction. It is trite to state that the power under Section 482 should be exercised sparingly and with circumspection only when the Court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of the process of the Court or that the ends of justice require that the proceedings ought to be quashed.” In the present case, the only offences involved are u/s.323, 498(A), 403, 406, 420, 424 and 34 of IPC. The criminal proceedings for the said offences are originated from the matrimonial issues, which are now settled. Consequently, the parties want a quietus to the criminal case as well. 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 will be squarely applicable in the present case. According to me, as the parties to the dispute settled the issues amicably, it is the duty of this **Crl.M.C.No.3470 of 2013** 10 Court to promote 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 the trial proceeded, there would not have any fruitful prosecution resulting the conviction 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 Crl.M.C. can be allowed granting the relief as sought for. In the result, this Crl.M.C. is allowed, quashing the entire proceedings in Annexure-II charge sheet in C.C.No.186 of 2013 (Crime No.807/2012 of Ernakulam Town South Police station) on the file of the Additional Chief Judicial Magistrate Court (Economic Offence), Ernakulam. Sd/- **V.K.MOHANAN, Judge** ami/ //True copy// P.A. to Judge