Joseph K.J., M.M.Joseph, C.V.George, Reji Joseph, Cyriac John v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** ## **FRIDAY, THE 16TH DAY OF AUGUST 2013/25TH SRAVANA, 1935** ## **Crl.MC.No. 3436 of 2013 () ---------------------------** ## **AGAINST THE JUDGMENT IN CC 305/2012 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II,HOSDRUG CRIME NO. 87/2012 OF NILESWARAM POLICE STATION , KASARGOD** ## **PETITIONER(S)/ACCUSED:** **------------------------------------------** **1. JOSEPH K.J., AGED 57 YEARS, S/O.K.J.JOSEPH, KUSUMALAYA, AALINKEEZHIL, PUDUKKAI VILLAGE, KASARAGOD.** **2. M.M.JOSEPH @ MANI, AGED 52 YEARS, S/O.MANI, MUNDAKKAL HOUSE, PERODE VILLAGE, KASARAGOD.** **3. C.V.GEORGE @ RAJU, AGED 52 YEARS, S/O.VARKEY, CHIRAYIL HOUSE, SUVARNAVALLI, SUVARNAVALLI, PUTHIYAKODE POST, KASARAGOD.** **4. REJI JOSEPH, AGED 32 YEARS, S/O.JOSEPH, PUTHIYAVEETIL, CHAYYAT POST, KASARAGOD.** **5. CYRIAC JOHN @ BENNY, AGED 33 YEARS, S/O.K.J.JOHN, KIZHAKKEKARA, GURUVANAM, UPPILIKKAI POST, KASARAGOD.** ## **BY ADV. SRI.SHERRY J. THOMAS** ## **RESPONDENTS/ACCUSED:** **----------------------------------------** **1. STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE, NEELESWARAM POLICE STATION, KASARAGOD THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA KOCHI-31.** ## **2. SUDHAKARAN,** **AMBADY, PALAKKAT, NEELESHWARAM, PELLODE VILLAGE, KASARAGOD.** **R1 BY PUBLIC PROSECUTOR SMT S HYMA R2 BY SRI.C.V.JOSEPH (CHELAKKATT)** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16-08-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 3436 of 2013 ()** ## **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURE** **-------------------------------------** **ANNEXURE-A1: CERTIFIED COPY OF FIR NO.87/2012 OF NILESWARAM POLICE STATION.** ## **ANNEXURE-A2: CERTIFIED COPY OF FINAL REPORT DATED 29.2.12.** **ANNEXURE-A3: TRUE COPY OF COMMON JUDGMENT OF THIS HONOURABLE COURT DATED 31.01.2013 IN WPC 402/2012 AND 5959/2012.** **ANNEXURE-A4: AFFIDAVIT FILED BY THE 2ND RESPONDENT.** **RESPONDENT(S)' ANNEXURE: NIL** **---------------------------------------** **/TRUE COPY/** **P.A TO JUDGE** **LSN** ## **V. K. MOHANAN, J.** **---------------------------------------** ## **Crl.M.C. No.3436 OF 2013 --------------------------------------Dated this the 16[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 in C.C.No.305/2012 of the Judicial First Class Magistrate Court -II, Hosdurg which is a case instituted upon the police report [in Crime No. 87/2012 of Neeleswaram Police Station] for the offences punishable under Sections 143,147,341,323,294(b), 427 read with 149 of Indian Penal Code with a prayer to quash Annexure A2 final report filed before the Judicial First Class Magistrate Court -II, Hosdurg in CC 305/2012 as the matter is settled out of court. 2. The case of the prosecution is that when the second respondent was trying to take the photographs of the construction of tombs, the petitioners unlawfully assembled and in pursuance of the common object, committed mischief and assaulted the second respondent. Thus, according to the prosecution, the petitioners are committed the offences punishable under Sections 143, 147, 341, 323, 294(b), 427 2 Crl.M.C. No.3436 OF 2013 read with 149 of Indian Penal Code. Now the case of the petitioners is that while the above case is pending due to the intervention of the mediators, the matter has been settled amicably and according to the de facto complainant who is the second respondent sworn in Annexure-A4 affidavit particularly, in view of the settlement arrived through the mediation conducted as per the common judgment of this court in WPC No. 5959/2012 and WPC No 402/2012 . 3. Heard the learned counsel for the petitioners as well as the second respondent. I have also heard the learned Public Prosecutor. 4. The learned counsel for the petitioners submitted that during the pendency of the above crime, 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 second 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 Crl.M.C. No.3436 OF 2013 3 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. 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 143,147,341,323,294(b), 427 read with 149 of Indian Penal Code 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 second 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** Crl.M.C. No.3436 OF 2013 4 ## **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 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,_ Crl.M.C. No.3436 OF 2013 5 _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 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. 6 Crl.M.C. No.3436 OF 2013 In the result, this Crl.M.C. is allowed, quashing Annexure -A2 final report and all further proceedings pending against the petitioners in C.C.No. 787/2011 of the Judicial First Class Magistrate Court -II,Hosdurg in Crime No. 87/2012 of Neeleswaram Police Station and all further proceedings thereto. sd/- **V. K. MOHANAN, JUDGE** True Copy P.A to Judge lsn