Joy S/O Thulaseedharan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **FRIDAY, THE 25TH DAY OF SEPTEMBER 2020 / 3RD ASWINA, 1942** ## **Crl.MC.No.8677 OF 2017** **AGAINST CC 91/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS, VARKALA CRIME NO.89/2012 OF AYIROOR POLICE STATION, THIRUVANANTHAPURAM** ## **PETITIONER:** **JOY S/O THULASEEDHARAN, AGED 42 YEARS, T.S.MANDIRAM, MEENAMBALAM, PUTHENKULAM DESOM, PARIPPALLY VILLAGE, KOLLAM DIST.** **BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE SRI.K.ANAND (A-1921)** ## **RESPONDENTS:** **1 STATE OF KERALA THROUGH SUB INSPECTOR OF POLICE, AYIROOR POLICE STATION, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2 SAJINI** **D/O SAROJAM, AGED 32 YEARS, NS VILLA, OONNINMOODU, ELAKAMON DESOM, AYIROOR VILLAGE, THIRUVANANTHAPURAM DISRICT-695310.** ## **OTHER PRESENT:** ## **SRI.B.JAYASURYA, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No.8677 OF 2017 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------Crl.M.C. No.8677 of 2017 ---------------------------------------------Dated this the 25[th] day of September, 2020 ## **O R D E R** The prayer in the aforecaptioned Criminal Miscellaneous case filed under Section 482 of the Code of Criminal Procedure (Cr.P.C.) is as follows:- _"........... may be urged at the time of hearing, this Honourable court may be pleased to quash Annexure-A1 FIR, Annexure-A2 final report in Crime No.89/2012 of Ayiroor Police Station, Thiruvananthapuram District and CC 91/2013 on the file of JFMC I, Varkala in the ends of justice."_ 2. Heard Sri.S.Rajeev, learned counsel appearing for the petitioner (sole accused) and Sri.B. Jayasurya, learned Public Prosecutor, appearing for the 1[st] respondent-State of Kerala. Though notice to contesting respondent No.2 (lady _de facto_ complainant) has been duly served on by special messenger as early as on 21.03.2020, as per order dated 13.03.2020, the said party has not entered appearance till date. 3. The petitioner, earlier, had married the 2[nd] respondent on 21.04.2007. Later on account of matrimonial disputes, the parties were living separately and the 2[nd] respondent had filed OP No.1292/2012 for recovering gold Crl.MC.No.8677 OF 2017 3 ornaments and money as well as OP No.1271/2015 for custody and guardianship of the minor child, before the Family Court concerned. The petitioner had filed O.P. No.1246/2012 seeking divorce before the Family Court, Kollam. 4. The petitioner has been arrayed as the sole accused in the instant impugned Annexure-A1 FIR in Crime No.89/2012 of Ayiroor Police Station, Thiruvananthapuram District, for offence punishable under Section 498 A of the IPC on the basis of the First Information Statement given by the 2nd respondent on 02.08.2012, alleging that the petitioner has committed various acts which would amount to commission of offence as per Section 498 A of the IPC. The Police, after investigation has filed the impugned Annexure-A2 Final Report/charge sheet in the abovesaid Crime No.89/2012 of Ayiroor Police Station on 22.11.2012 which later led to the pendency of Calender Case, C.C. No.91/2013 on the file of the Judicial First Class Magistrate Court-I, Varkala. 5. As indicated hereinabove, various matrimonial litigative proceedings are pending between the parties. The 2[nd] respondent had earlier filed maintenance case as M.C. No.316/2015 before the Family Court concerned, under Section Crl.MC.No.8677 OF 2017 4 125 of the Cr.P.C. seeking claim of maintenance (see AnnexureA3). O.P. No.173/2017 is the original petition filed by the 2[nd] respondent herein before the Family Court, Kollam, seeking custody and guardianship of the child (see Annexure-A5). The 2[nd] respondent had also filed O.P. No.1292/2012 before the Family Court concerned seeking for recovery of gold ornaments and money from the petitioner herein (see Annexure-A6). The petitioner, in turn, has filed O.P. No.1246/2012 before the Family Court concerned, seeking for dissolution of the marriage between the parties (see Annexure-A7). 6. It appears that all the abovesaid proceedings were referred to the mediation centre by the Family Court concerned. Thereupon the petitioner and the 2[nd] respondent entered into Annexure-A3 memorandum of mediation settlement agreement dated 13.12.2016, wherein various terms and conditions have been laid down for settlement of the abovesaid dispute. Apart from the abovesaid Family Court proceedings a specific clause has also been interacted as clause No.vii of Annexure-A3 mediation settlement agreement that the 2[nd] respondent has also agreed to support the plea of the petitioner seeking for quashment of the impugned proceedings arising out of the Crl.MC.No.8677 OF 2017 5 instant C.C. No.91/2013 on the file of the Judicial First Class Magistrate Court-I, Varkala. According to the petitioner, he has clearly averred and asserted in paragraph Nos.6 to 8 of the instant Crl. M.C. that all the conditions stipulated in AnnexureA3 mediation settlement agreement have been complied with by him. Further that the Family Court concerned has also acted upon Annexure-A3 mediation settlement agreement whereby Annexure-A3(page 7) final order dated 26.12.2016 has been rendered by the Family Court, Kollam, dismissing M.C. No.316/2015 in the light of the abovesaid mediation settlement agreement as per Annexure-A3 herein. Annexure-A5 is the copy of the final order dated 06.03.2017, rendered by the Family Court, Kollam, dismissing O.P. No.173/2017 in view of the abovesaid settlement. By Annexure-A6 final order dated 02.0.2.2017, the Family Court, Kollam, has also dismissed O.P. No.1292/2012, in view of the abovesaid settlement. 7. Based on the abovesaid mediation settlement agreement, the Family Court, Kollam has passed Annexure-A7 separate judgment/order dated 07.02.2017 in O.P. No.1246/2012 ordering dissolution of the marriage between the petitioner herein and the 2[nd] respondent herein on the basis of Crl.MC.No.8677 OF 2017 6 the mutual consent arrived at by them, as is referred to in Annexure-A3. 8. It is thus stated by the petitioner that all the litigative proceedings before the Family Court were thus, closed and the custody of the child was given in favour of the 2[nd] respondent and the marriage between the parties has also been dissolved on the basis of mutual consent. 9. However, the petitioner would point out that in terms of Clause v of Annexure-A3 settlement agreement, the petitioner had taken a fixed deposit for the principal amount of Rs.5,00,000/- (Rupees Five lakhs only) in the name of the abovesaid minor child in the Thiruvananthapuram District Cooperative Bank on 13.12.2016 for a term of 15 years and having a maturity amount of Rs.16,40,515/- on the maturity date of 13/12/2031, as agreed to in the abovesaid mediation settlement agreement. Annexure-A4 is the photocopy of the said Fixed Deposit. Further that, the petitioner has taken various steps to hand over the fixed deposit covered by Annexure-A4 to the 2[nd] respondent herein, who for reasons only known to her, has refused to receive the said fixed deposit and the said fixed deposit receipt is still maintained by the petitioner. Crl.MC.No.8677 OF 2017 7 10. Further that, for reasons not known to the petitioner, the 2[nd] respondent has also taken the stand despite request that she will not swear to an affidavit for quashment of the impugned criminal proceedings involved in this case as agreed to between the parties in clause No.vii of Annexure-A3 mediation settlement agreement. 11. After hearing both sides and after going through the pleadings and materials on record, it is seen that many of the allegations in the impugned Annexure-A1 criminal proceedings relate to disputes between the husband and the wife and that the husband never had not properly taken care of the wife after she had given birth to a premature baby and that he was not taking sufficient care of the child and that though at one point of time he had agreed to live in her parental home, later he had shifted his residence on his own and had compelled the 2[nd] respondent to come and reside with him in his own residence. Further that, she had entrusted about 75 sovereigns of gold ornaments which she had received from her parents at the time of her marriage, to the petitioner, which he has not returned back, etc. and also that the petitioner, through his conduct, has consistently neglected the 2[nd] respondent, etc. As regards the Crl.MC.No.8677 OF 2017 8 issue regarding claim for return of gold ornaments to the 2[nd] respondent, etc. as noted hereinabove, the 2[nd] respondent herein had earlier filed a separate original petition before the Family Court concerned which resulted in Annexure-A6 order dated 02.02.2017 in O.P. NO.1292/2012, whereby the said original petition has been dismissed in the view of the abovesaid mediation settlement agreement made out as per Annexure-A3 herein. Almost all the other significant allegations raised in Annexure-A1 impugned criminal proceedings are in relation to various disputes between the spouses and the alleged lack of responsibility on the part of the petitioner as her husband to take care of the 2[nd] respondent and the child and of course, there is an incident of alleged assault said to have been made by the petitioner on the 2[nd] respondent on a day in question, etc. 12. Initially this Court had issued notice by speed post to the 2[nd] respondent herein as per order dated 14.12.2017, which was duly served on her by the 1[st] week of January, 2018, as can be seen from the endorsement of the Registry made on 10.01.2018. Later, when this case had come up for final hearing, this Court, on 13.03.2020 had by way of abundant Crl.MC.No.8677 OF 2017 9 caution directed the petitioner to again take out notice by special messenger to the 2[nd] respondent herein. The Registry has made endorsement that the said second notice has also been duly served on the 2[nd] respondent on 21.03.2020. Despite issuance of two notices, the 2[nd] respondent has not chosen to enter appearance till date. 13. Thus, it can be seen that despite all efforts made by this Court, the 2[nd] respondent, for reasons only known to her, has chosen not to enter appearance before this Court and to state as to whether she is supporting or opposing the prayers in this petition, etc. 14. In a similar case, this Court, in the decision in _**Thomas & Another v. State of Kerala and Another**_ [2016(1) KLT 694=2016 KHC 206], has dealt with a case where settlement was arrived at between the parties through the Lok Adalat process in respect of the disputes which also led to the registration of crime for offences punishable under Sections 341 and 323 read with Section 34 of the IPC. The facts of that case would disclose that therein the _de facto_ complainant was the son-in-law of the 1[st] petitioner therein and there were differences of opinion between the _de facto_ complainant therein Crl.MC.No.8677 OF 2017 10 and his wife (who is the daughter of the 1[st] petitioner therein), which culminated in a series of litigations between them. As the wife of the _de facto_ complainant was allegedly tortured and harassed with a demand for dowry, and as her properties were allegedly misappropriated, case was pending for the same against the _de facto_ complainant as C.C. No.70/2012 before the Chief Judicial Magistrate's Court, concerned. The _de facto_ complainant has then filed O.P. No.680/2012 before the Family Court, Thrissur, against the daughter of the 1[st] petitioner therein seeking for a decree of divorce. Later, the entire disputes between the parties were settled in the Lok Adalat in O.P. No.680/2012, whereby a settlement agreement was separately executed in that regard. Since all the disputes were settled, the parties had agreed to terminate both the aforesaid calender cases pending before the criminal Court, concerned. Complying with the terms of the said settlement, the daughter of the 1[st] petitioner therein was instrumental in terminating the prosecution in one of the abovesaid calender cases, which was pending against the _de facto_ complainant therein. Consequently, the said _de facto_ complainant was acquitted in the said case. Later, the abovereferred O.P. No.680/2012 was Crl.MC.No.8677 OF 2017 11 dismissed as withdrawn, and as per the said settlement, a joint petition seeking divorce was filed, which was also decreed on the basis of mutual consent. Thereafter, when the _de facto_ complainant therein had taken a lukewarm attitude in getting the matter involved in the other calender case on the file of the Magistrate quashed or compounded, this Court, in the abovesaid decision in _**Thomas & Another v. State of Kerala and Another**_ [2016(1) KLT 694=2016 KHC 206], has held that in a case like this, the party concerned cannot approbate and reprobate and it is a fact that he has availed all the benefits of settlement, and the case which was pending against him was also settled and he got acquitted and after availing such benefit and also after obtaining the benefit of divorce by mutual consent, he cannot backtrack from the settlement which has come into effect. This Court held therein that since a proper settlement was arrived at between the parties in the Lok Adalat process and both sides have taken benefits of the said settlement agreement, the continuance of the impugned criminal proceedings will amount to an abuse of the process of the Court and accordingly had quashed the impugned criminal proceedings in that case. It will be pertinent Crl.MC.No.8677 OF 2017 12 to refer to paragraph Nos.10 to 14 of the decision of this Court in _**Thomas & Another v. State of Kerala and Another**_ ## [2017 KHC 206], which read as follows:- _“10. Identical situations were dealt with in the decision in Mohd. Shamim and Others v. Nahid Begum (Smt.) and Another, 2005 KHC 470: 2005 (3) SCC 302 : AIR 2005 SC 757 : 2005 SCC (Cri) 722 : 2005 CriLJ 889 : 2005 (99) Cut LT 631 and Ruchi Agarwal v. Amit Kumar Agrawal, 2005 KHC 469 : 2005 (3) SCC 299 : 2005 SCC (Cri) 719. Mohd. Shamim (supra) was a case wherein the execution of a deed of settlement between the parties was denied. It was held that denial of execution of the deed of settlement was an afterthought and the same could not be accepted in view of the fact that the settlement was arrived at the intervention of a Judicial Officer of the rank of an Additional Sessions Judge, especially when the settlement appeared to be genuine._ _11. Here, in this particular case also a genuine settlement has been entered into in the Lok Adalath and an award has been passed. Similarly, in an identical situation in Ruchi Agarwal (supra), the proceedings against the respondents were quashed. there, the Apex Court held,_ _"8. ......Therefore, we are of the opinion that the appellant having received the relief she wanted without contest on the basis of the terms of the compromise, we cannot now accept the argument of the learned counsel for the appellant. In our opinion, the conduct of the appellant indicates that the criminal complaint from which this appeal arises was filed by the wife only to harass the respondents._ _9. In view of the above said subsequent events and the conduct of the appellant, it would be an abuse of the process of the Court if the criminal proceedings from which this appeal arises is allowed to continue."_ _12. The learned counsel for the petitioners has invited the attention of this Court to the decision in Aditya Chandershekhar Pandit and Others v. State of NCT of Delhi and Another, 2013 KHC 3180 : 2013 (2) KLD 570 (Del.) : 2012 (4) Crimes 228. In that case, in an identical situation wherein a Mediation had taken place and a Mediation Settlement Agreement was entered into, the Delhi High Court held that the parties to such a settlement agreement cannot be permitted to backtrack, after the settlement has come into effect._ Crl.MC.No.8677 OF 2017 13 _13. Here, in this particular case also a settlement has been arrived at between the parties and the consequent award passed by the Lok Adalath has come into effect and a substantial portion of it has been complied with. In that particular context, the 2[nd] respondent cannot be permitted to backtrack from the settlement and to proceed with the prosecution against the petitioners._ _14. Matters being so, the entire proceedings in CC No.481/2012 of the Judicial First Class Magistrate's Court-II, Thrissur, as against the petitioners, based on Annexure-A1 Final Report in Crime No.120/2012 of the Thrissur West Police Station, are liable to be quashed. In the result, this Crl.MC is allowed and all further proceedings in CC No.481/2012 of the Judicial First Class Magistrate's Court-II, Thrissur, as against the petitioners, based on Annexure-A1 Final Report in Crime No.120/2012 of the Thrissur West Police Station, are hereby quashed."_ 15. The Division Bench of this Court in the decision in _**Teena M. Ansari v. Rinoj Eappen**_ [2019 (3) KLT 1114 (DB)], has held that after entering into a settlement through the process of mediation and after the Court as well as the parties have acted up on the settlement one of the parties cannot be permitted to unilaterally withdraw from the same. It will be pertinent to refer paragraph Nos.11 and 12 of the said decision of this Division Bench of this Court in _**Teena M. Ansari'**_ s case ( _supra),_ which read as follows:- _“11. In Mohanan v. Sudakshina Ramakrishnan (2017 (3) KLT 254=2017(3) KHC 155), a learned Single Judge of this Court has held that, when the parties settled the disputes by signing an agreement, detailing the procedures to be followed to work out such settlement, certainly, that agreement is having all the characteristics of compromise in terms of O.XXIII R.3 of the Code of Civil Procedure and no party can_ Crl.MC.No.8677 OF 2017 14 _withdraw from it unilaterally. Once a settlement has been arrived at between the parties in relation to the matter in the suit, that concludes as far as the court concerned in relation to the disputes resolved in the settlement. The court recording the compromise is entering into a satisfaction in terms of O.XXIII R.3 of the Code of Civil Procedure and the court is not merely acting upon the agreement._ _12. After entering into a settlement through the process of mediation and after the court as well as the parties have acted upon the settlement, one of the parties cannot be permitted to unilaterally withdraw from the same. Granting permission for withdrawing from the settlement agreement, which was voluntarily signed by the parties, would destroy the sanctity of the whole process of mediation. The settlement agreement, having been signed and acted upon, is binding on the parties. A settlement agreement entered into between the parties through mediation conducted at the High Court Mediation Centre, after getting the imprimatur of the court, has got a certain solemnity attached to it."_ 16. In the instant case, there is no dispute that the parties have arrived at in mediation settlement agreement as per Annexure-A3 and the same has also been acted upon in all the proceedings before the Family Court, as can be seen from the orders/judgments of the Family Court concerned as per Annexures-A3, A5, A6 & A7. The most serious allegation made out in the impugned Annexure-A6 criminal proceedings is relating to the alleged misappropriation of gold ornaments, etc. On the said aspect a separate original petition was instituted by the 2[nd] respondent herein before the Family Court, and the said original petition has been dismissed by the Family Court as per Annexure-A6 order in view of the abovesaid settlement made Crl.MC.No.8677 OF 2017 15 out in Annexure-A3. Almost all the other allegations raised in the impugned Annexure-A1 criminal proceedings are various disputes and differences of opinion between the two spouses. The only other serious allegation is regarding an assault said to have been made by the petitioner on the day in question mentioned in Annexure-A1. 17. Taking note of the overall conspectus of the factual circumstances of this case and also taking into account the fact that almost all the other disputation proceedings between the parties have been resolved by Annexure-A3 mediation settlement agreement, as can be seen from Annexures-A3, A5, A6 and A7 , and taking note of the above said aspects, this Court is of the considered view that the approach made by this Court in the decision in _**Thomas'** s_ case ( _supra),_ could be befittingly resorted to in the instant case. In the facts and circumstances of this case, resort to the inherent powers of this Court under Section 482 of the Cr.P.C., so as to interdict the impugned criminal proceedings could be befittingly considered as otherwise the continuation of the impugned criminal proceedings will certainly amount to an abuse of process of this Court. Crl.MC.No.8677 OF 2017 16 18. This Court had granted stay of the impugned criminal proceedings as early as on 14.12.2017. Even till date, the 2[nd] respondent has not entered appearance despite serving notice on her on more than one occasion. 19. Further, it is also brought to the notice of this Court that the 2[nd] respondent, after securing divorce from the petitioner, has remarried another person and a child is also born to her in the said new marital relationship. Further, after the above said divorce, the petitioner has also remarried. Hence the continuance of this impugned criminal proceedings will certainly lead to a situation of abuse of the process of the Court. 20. The learned counsel appearing for the petitioner has submitted that though the petitioner had tried several times to ensure that Annexure-A4 fixed deposit taken in the name of the child in terms of clause No.v of Annexure-A3 mediation settlement agreement, is given to the 2[nd] respondent, she has flatly refused to receive the same and that the petitioner is still keeping the said fixed deposit receipt as per Annexure-A4 which would mature only on 13.12.2031 and that the petitioner is prepared to abide by any directions that may be issued by this Crl.MC.No.8677 OF 2017 17 Court on that aspect so that the interest of the child is duly taken care of. 21. In that regard, it is to be noted that Annexure-A4 fixed deposit has been taken in pursuance of clause No.v of Annexure-A3 mediation settlement agreement, which is the subject matter of the matrimonial litigative proceedings between the parties, which culminated in Annexures-A3, A5, A6 and A7 orders of the Family Court and therefore, it is for the petitioner to approach the Family Court concerned for any orders in that regard, if he is so advised. 22. It may not be right and proper for this Court, which is now exercising the jurisdiction under Section 482 of the Cr.P.C. to enter into those aspects, which otherwise would lie within the domain of civil proceedings. 23. Accordingly, it is ordered in the interest of justice that the up-short of the above discussion is that the impugned criminal proceedings would require interdiction in the hands of this Court in exercise of the inherent powers under Section 482 of the Cr.P.C. In that view of the matter, it is ordered that the impugned Annexure-A2 Final Report/Charge sheet filed in the impugned Annexure-A1 FIR in crime No.89/2012 of Ayiroor Crl.MC.No.8677 OF 2017 18 Police Station, which has lead to the pendency of calender case in C.C. No.91/2013 on the file of the Judicial First Class Magistrate Court-I, Varkala, as against the petitioner herein (accused) and all further proceedings emanating therefrom as against the petitioner (accused) will stand quashed and set aside. The petitioner will produce a certified copy of this order before the Judicial First Class Magistrate's Court-I, Varkala, as well to the Investigating Officer concerned for necessary information. With these observations and directions the above criminal miscellaneous case will stand disposed of. ## **Sd/-** **ALEXANDER THOMAS, JUDGE** Skk//14092020 Crl.MC.No.8677 OF 2017 19 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A1 THE CERTIFIED COPY OF FIR IN CRIME 89/2012 OF AYIROOR POLICE STATION** - **ANNEXURE A2 THE CERTIFIED COPY OF FINAL REPORT IN CRIME NO.89/2012 OF AYIROOR POLICE STATION** - **ANNEXURE A3 THE CERTIFIED COPY OF MEMORANDUM OF AGREEMENT DATED 13-12-2016 ENTERED BETWEEN THE PETITIONER AND THE 2ND RESPONDENT IN M.C 316/2015 AND CONNECTED CASES** - **ANNEXURE A4 THE CERTIFIED COPY OF FIXED DEPOSIT RECEIPT FOR RS.5 LAKHS DATED 13-12-2016 ISSUED FROM THE THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK** - **ANNEXURE A5 THE CERTIFIED COPY OF ORDER DATED 6-3-2017 IN OP NO.173/2017 ON THE FILE OF FAMILY COURT, KOLLAM** - **ANNEXURE A6 THE CERTIFIED COPY OF ORDER DATED 2-2-2017 IN O.P. NO.173/2017 ON THE FILE OF FAMILY COURT, KOLLAM** - **ANNEXURE A7 THE CERTIFIED COPY OF ORDER DATED 7-2-2017 IN OP NO.1246/2012 ON THE FILE OF FAMILY COURT, KOLLAM** - **RESPONDENTS' EXHIBITS: NIL**