Ijas Ismail and Nistar Ahmed A. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **TUESDAY, THE 20TH DAY OF AUGUST 2013/29TH SRAVANA, 1935** **Crl.MC.No. 1796 of 2012 ()** **--------------------------CC NO.5309/2010 OF THE JFCM-II, ERNAKULAM** ## **PETITIONER(S)/ACCUSED 3 & 4:** ## **----------------------------** **1. IJAS ISMAIL, AGED 23 YEARS S/O V.H. ISMAIL, VALIYAVEETTIL, H.NO XI/730 PATTALAM, FORTKOCHI, COCHIN 682001** ## **2. NISTHAR AHMED A., AGED 26 YEARS** - **S/O ABDUL KADER, VEMBADY HOUSE, 13/797A TAKYAVU ROAD, KARUVELIPADY, KOCHI 682005** **BY ADVS.SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH** **RESPONDENTS/COMPLAINANT(S), DEFACTO COMPLAINANT & ACCUSED 1&2: --------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE CENTRAL POLICE STATION KOCHI CITY, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM** **2. BAIJU, AGED 32 YEARS** - **S/O NARAYANAN, MUNDAMPALATHINGAL VEETTIL KODUVALLI VILLAGE, KODUVALLI P.O, KOZHIKODE 673572** **3. SHEFINE, AGED 26 YEARS** - **S/O SALAAM, CHULAKKAL VEEDU NEAR EMPLOYEES STATE INSURANCE HOSPITAL FORTKOCHI, KOCHI 682001** **4. SHINAS, AGED 24 YEARS** - **S/O ASHRAF, AMBALATH VEEDU, NJALIBARAMBU FORTKOCHI, KOCHI 682001** **BY ADV. SRI.V.S.SHIRAZ BAVA R1 BY PUBLIC PROSECUTOR SMT.S.HYMA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20-08-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 1796 of 2012 () ---------------------------** ## **APPENDIX** ## **PETITIONER'(S) ANNEXURES:** **ANNEX.A1 COPY OF THE CHARGE IN CRIME NO.2469/2010 OF CENTRAL POLICE STATION, ERNAKULAM. ANNEX.A2 COMPOUNDING PETITION SIGNED BY THE PETITIONERS AND THE DEFACTO COMPLAINANT/2ND RESPONDENT. ANNEX.A3 AFFIDAVIT BY THE 2ND RESPONDENT.** **RESPONDENT'(S) ANNEXURES: NIL** **//TRUE COPY//** **PA TO JUDGE** **BKA** ## **V.K. MOHANAN, J.** ## **-------------------------------------------------Crl. M.C. No. 1796 of 2012 -------------------------------------------------Dated this the 20[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 petitioners, who are accused nos. 3 & 4 in C.C.No.5309/2010 of the Judicial First Class Magistrate Court-II, Ernakulam, which is a case instituted upon the police report in Crime No. 2469/2010 of the Central Police Station, Kochi City for the offences punishable under Sections 341, 294(b), 506(1), 323 and 447 r/w Section 149 of I.P.C. with a prayer to quash all further proceedings as against the petitioners in CC No.5309/2010 on the file of the Judicial First Class Magistrate-II, Ernakulam, as the matter is settled out of court. 2. The allegation in the above case is that the petitioners and the other accused, on 02.09.2010 at about Crl. M.C. No. 1796 of 2012 ..2.. 8.30 pm, restrained the way of the 2[nd] respondent/de facto complainant, to take his bike out of his office premises with the 4[th] respondent's car having registration no. KL-43-B-6006 and the 2[nd] respondent argued with the petitioners and other accused. Petitioners and other accused with a criminal intention trespassed into the office premises and used abusive words against the 2[nd] respondent and manhandled him. Thus, according to the prosecution, the accused have committed the offences punishable under Sections 341, 294(b), 506(1), 323 and 447 r/w Section 149 of I.P.C. Now, the case of the petitioners is that the entire dispute is settled between the petitioners and the 2[nd] respondent as per Annexure A2 compounding petition, which is signed by the petitioners and the 2[nd] respondent and countersigned by the respective counsel. The 2[nd] respondent, who is the de facto complainant, has also sworn into Annexure A3 affidavit. 3. Heard the learned counsel for the petitioners as well as the 2[nd] respondent. I have also heard the ..3.. Crl. M.C. No. 1796 of 2012 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 process of law and proceedings. 5. The learned counsel for the 2[nd] 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 he 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. Crl. M.C. No. 1796 of 2012 ..4.. 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 under Sections 341, 294(b), 506(1), 323 and 447 r/w Section 149 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 2[nd] 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 which 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 Crl. M.C. No. 1796 of 2012 ..5.. 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 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. Thus, I am of the view that 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 Crl. M.C. No. 1796 of 2012 **==> picture [20 x 9] intentionally omitted <==** 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 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 all further proceedings pending against the petitioners in C.C.No. 5309 of 2010 of the Judicial First Class Magistrate Court-II, Ernakulam. Sd/- **V.K. MOHANAN, JUDGE** bka/-