JAMAL T.H. v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **TUESDAY, THE 30TH DAY OF JULY 2013/8TH SRAVANA, 1935** **Crl.MC.No. 3188 of 2013 () ---------------------------** **CC NO.323/2012 of C.J.M.,KASARAGOD CRIME NO. 977/2011 OF KASARAGOD POLICE STATION, KASARGOD** **-----------** ## **PETITIONERS/ACCUSED 1 TO 5:** **--------------------------** ## **1. JAMAL T.H.** - **S/O.HARIS, KMC XXXI/217, SAHIRA MANZIL THERUVATH KAZABA, KASARAGOD DISTRICT.** **2. ISMAIL MS, S/O.MUHAMMED KUNHI, KMC XXVII-311, KUNDAVALAPPIL HOUSE, THERUVATH KAZABA, KASARAGOD DISTRICT.** **3. ABDUL MUNAS, S/O..ABDULLA, KMX XIC-179, THERUVATH, KAZABA KASARAGOD.** **4. ABDUL ASJID, S/O.MUHAMMED, 30 MAIL PALIKKAL HOUSE THALANGARA, KASARGOD.** **5. ASLAM, S/O.MOHAMMED, K.M.C. XXVII/225 CERAMICS ROAD, THERUVATH, KASARAGOD.** **BY ADV. SRI.SERGI JOSEPH THOMAS** **RESPONDENTS/STATE/CWS 1 AND 2::** **-------------------------------** **1. STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE KASARAGOD POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM, PIN - 682 031.** **2. UMMARUL FAROOK, S/O.KUNHAMMU, MALIL MANZIL** - **BANKODU, THALANKARA, KASARAGOD 671 121.** **3. ABDUL KHADER, S/O.SHAFI, MIZRIYA MANZIL, BANKODU THALANKARA, KASARGOD - 671 121.** **R1 BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN R2 & 3 BY ADV. SRI.K.SHAJ** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30-07-2013, CRL.MC NO. 3192/2013 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **VK** **Crl.MC.No. 3188 of 2013 () ---------------------------** ## **APPENDIX** **--------** **PETITIONER(S)' EXHIBITS** **-----------------------** **ANNEXURE.A-I: THE CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.979/11 OF KASARAGOD POLICE STATION (NOW C.C.NO.323/12)** **ANNEXURE.A-II: TRUE COPY OF THE AFFIDAVIT EXECUTED BY THE 2ND RESPONDENT** **ANNEXURE.A-III: TRUE COPY OF THE AFFIDAVIT EXECUTED BY THE 3RD RESPONDENT** **RESPONDENT(S)' EXHIBITS : NIL** **-----------------------** **/ TRUE COPY /** **P.A. TO JUDGE** **VK** ## **V.K.MOHANAN, J. ------------------------------------------------Crl.M.C.Nos.3188 & 3192 of 2013 -------------------------------------------------Dated this the 30[th] day of July, 2013** ## **ORDER** The above petitions are filed under Section 482 of the Criminal Procedure Code (for short 'Cr.P.C.') at the instance of the petitioners, who are the accused in C.C.Nos.323 of 2012 and 634 of 2011 on the files of the Chief Judicial Magistrate Court, Kasaragod for the offences punishable under Sections 143, 147, 148, 341, 323 & 324 read with Section 149 of I.P.C. with a prayer to quash Annexure-I charge in C.C.No.323 of 2012 and Annexure-I charge in C.C.No.634 of 2011 on the files of the Chief Judicial Magistrate Court, Kasaragod as the matter is settled out of court. 2. In Crl.M.C.No.3188 of 2013, the prosecution case is that, on 20/10/2011 at about 6 p.m. accused Nos.1 to 5 due to previous enmity towards CWs.1 and 2, formed themselves into an unlawful assembly and wrongfully restrained CWs.1 and 2 and accused Nos.1 and 2 beat CW.1 with their hand and stick and accused No.2 beat CW.2 with his hand and stick and Crl.M.C.Nos.3188 & 3192 of 2013 :-2-: accused Nos.4 and 5 caused abrasions on the body of CWs.1 and 2 with a knife at a place called Theruvath. 3. In Crl.M.C.No.3192 of 2013, the prosecution case is that, on 25/10/2011 at about 7.30 p.m., accused Nos.1, 2 and 4 identifiable persons, formed themselves into an unlawful assembly and wrongfully restrained and attacked CW.1 with deadly weapons and hand and caused bodily injuries to him near Maddona Hostel at Thalankara. 4. As the parties to the dispute are more or less the same and the matter is settled, according to me, the above M.Cs. can be heard together and disposed of by a common order. 5. Crl.M.C.No.3188 of 2013 is directed against the proceedings in C.C.No.323 of 2012 which was instituted upon a report in Crime No.977 of 2011 of Kasaragod Police Station. The petitioners herein are the accused in the above crime and the de facto complainant therein is the second respondent and 3[rd] respondent is one of the injured. Whereas Crl.M.C.No.3192 of 2013 is directed against the proceedings in C.C.No.634 of Crl.M.C.Nos.3188 & 3192 of 2013 :-3-: 2011 of the court of Chief Judicial Magistrate, Kasaragod which is instituted upon a report in Crime No.996 of 2011 of Kasaragod Police Station. The petitioners are the accused therein and the second respondent is the de facto complainant in the above crime. It can be seen that, both are case and counter case. Now, according to the petitioners in the above M.C.s, the matter is settled out of court with the de facto complainant as well as the injured. Respondents 2 and 3, who are respectively the de facto complainant and the injured has filed Annexures-II and III affidavits respectively. Similarly, in Crl.M.C.No.3192 of 2013 the de facto complainant, who is the second respondent has filed Annexure-A2 affidavit. 6. Heard the learned counsel for the petitioners as well as the 2[nd] respondent. I have also heard the learned Public Prosecutor. 7. The learned counsel for the petitioners submitted that, during the pendency of the above case, the dispute is settled amicably between the parties which is the subject matter of the above case. Therefore, the continuation of the Crl.M.C.Nos.3188 & 3192 of 2013 :-4-: proceedings in the above case is abuse of process of law and proceedings. 8. 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. 9. I have carefully considered the above submissions of the respective counsel. I have verified the documents and materials produced along with the above petition including Annexure-II affidavit. 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. 10. 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 143, 147, 148, 341, 323 & 324 read with Section 149 of I.P.C. which are more or less personal in nature and no public interest is involved. It is Crl.M.C.Nos.3188 & 3192 of 2013 :-5-: 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 contesting respondents, it appears to me that the de facto complainant and the injured 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 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.. Crl.M.C.Nos.3188 & 3192 of 2013 :-6-: ## 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. 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 ## Crl.M.C.Nos.3188 & 3192 of 2013 :-7-: 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, these Criminal M.C.s can be allowed granting the reliefs as sought for. In the result, these Crl.M.C.s are allowed, quashing Annexure-I charge in C.C.No.323 of 2012 and Annexure-I charge in C.C.No.634 of 2011 on the files of the Chief Judicial Magistrate Court, Kasaragod. ## **V.K.MOHANAN, JUDGE** skj True copy P.A. to Judge