K.K. Thomas and Bahvana Thomas v. State of Kerala and Riya Maria Jain

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 7TH DAY OF APRIL 2014/17TH CHAITHRA, 1936** ## **Crl.MC.No. 6502 of 2013** ## **--------------------------CC NO. 3305/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, IRINJALAKUDA** **.... CRIME NO. 738/2013 OF IRINJALAKUDA POLICE STATION , THRISSUR** **....** **PETITIONER(S)/ACCUSED NO. 2 AND 3:** **-----------------------------------------------------------** **1. K.K.THOMAS, AGED 74 YEARS, S/O. KOCHUVAREED, KONUPARAMBIL HOUSE, MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK.** ## **2. BAHVANA THOMAS, AGED 40 YEARS,** ## **D/O. THOMAS, KONUPARAMBIL HOUSE, MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK.** ## ***ADDL.P3 IMPLEADED:** **P3. FENI THOMAS, AGED 45 YEARS, S/O.THOMAS K.K., KONUPARAMBIL HOUSE, DON BOSCO SCHOOL ROAD, MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK.** **(*ADDL.P3 IS IMPLEADED AS PER ORDER DTD. 10/03/2014 IN CRL.M.A.NO.2179/2014 IN CRL.M.C.NO.6502/2013)** **BY ADVS.SRI.P.K.SAJEEV SRI.P.P.HARRIS** ## **RESPONDENTS/STATE OF KERALA AND DEFACTO COMPLAINANT:** **-------------------------------------------------------------------------------------------------------** ## **1. STATE OF KERALA,** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **2. RIYA MARIA JAIN,** ## **D/O. JAIN PAUL, MANNUKADEN HOUSE, MISSION QUARTERS, CHEMBUKKAVU VILLAGE, THRISSUR TALUK-680 001.** **R1 BY PUBLIC PROSECUTOR SMT. S.HYMA R2 BY ADVS. SRI.K.A.SHAMSUDEEN SRI.K.J.MOHAMMED ANZAR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07-04-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **Crl.MC.No. 6502 of 2013** **--------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES:** **-------------------------------------------** **ANNEXURE A1- TRUE COPY OF THE PRIVATE COMPLAINT FILED BY THE 2ND RESPONDENT.** **ANNEXURE A2- TRUE COPY OF THE FIR IN CRIME NO. 738/2013 OF IRINJALAKUDA POLICE STATION.** **ANNEXURE A3- TRUE COPY OF THE FINAL REPORT IN CRIME NO. 738/2013 OF IRINJALAKUDA POLICE STATION.** **RESPONDENT(S)' ANNEXURES:** **--------------------------------------------N I L** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** K. RAMAKRISHNAN, J. -----------------------------------------------------------------Crl. M.C. No.6502 of 2013 --------------------------------------------------------------------Dated this the 7[th] day of April, 2014 ## O R D E R This criminal miscellaneous case is originally filed by the petitioners 1 and 2, who are accused Nos.2 and 3 in C.C.No.3305/2013 on the file of the Judicial First Class Magistrate Court, Irinjalakuda, to quash the proceedings under Section 482 of the Code of Criminal Procedure (hereinafter called the 'Code'). 2. It is alleged in the petition that, the petitioners were arrayed as accused Nos.2 and 3 in Crime No.738/2013 of Irinjalakuda Police Station, which was originated on the basis of a private complaint filed by the 2[nd] respondent against the petitioners and his son, alleging offences under Section 498(A) read with Section 34 of the Indian Penal Code before the Judicial First Class Magistrate Court, Irinjalakuda, which was forwarded to the police for Crl. M.C. No.6502 of 2013 2 investigation by the learned magistrate under Section 156 (3) of the 'Code'. 3. After investigation, final report was filed and the case was taken on file as CC.No.3305/2013 on the file of the Judicial First Class Magistrate Court, Irinjalakuda. The case is now pending before that court. According to the petitioners in the original petition, the materials collected by the police during the investigation are not sufficient to attract the offence against the then petitioners alone and on that basis; they filed the application, seeking the following reliefs: “i. quash Annexure-A3 final report in Crime No.738/2013 of Irinjalakuda Police Station and all further proceedings in CC.No.3305/2013 on the files of Judicial 1[st] Class Magistrate Court, Irinjalakuda ii. pass such other orders which this Hon'ble Court deems fit to grant to the facts and circumstances of the case. 4. Thereafter the 2[nd] respondent appeared through counsel and first respondent was represented by Public Prosecutor. When both the counsels submitted that, 3 Crl. M.C. No.6502 of 2013 there is a possibility of settlement and also considering the fact that, it is a matrimonial dispute, this court referred the matter for mediation. As per the agreement entered into between the parties in the mediation, the petitioners have impleaded 3[rd] petitioner, who is the first accused in the case also as a party to the proceedings as per the order in Crl.M.A.No.2179/2014. Thereafter the matter was again mediated and ultimately, they came to a settlement in the mediation and the entire dispute between them has been settled and they have produced the mediation agreement before this court which reads as follows: ## “Settlement Agreement Under Rule 24 of the Civil Procedure ADR Rules, 2008 The parties to the above petitions have settled their disputes forming subject matter on the above original petitions on the following terms. 1. The 2nd respondent (defacto-complainant) has no objection in quashing the final report in Crime no.738/2013 of Irinjalakuda Police Station and all further proceedings against the Petitioners/Accused persons in CC 3305/2013 on the file of the Judicial First Class Magistrate Court, Irinjalakuda. 2. Both the Addl.3rd. Petitioner(husband) and 2nd Respodnent wife in the above Criminal Miscellaneous Case withdraw their rival allegations Crl. M.C. No.6502 of 2013 4 against each other in the Original Petition No.1558 of 2012 before the Family Court, Irinjalakuda, for divorce. 3. The Addl. 3rd Petitioner (husband) and the 2nd Respondent (wife) will jointly file a petition, under Section 10A of the Indian Divorce Act for divorce on mutual consent, terms which are already agreed upon, pursuant to this settlement but before this settlement is recorded by the Hon’ble Referral Court. 4. The Addl. 3rd Petitioner (husband) will pay Rs.21,00,000/- (Rupees twenty one lakhs only) to the herein 2nd respondent wife in full and final settlement of all her claims. Both Addl 3rd petitioner (husband) and 2nd respondent wife herein withdraw their rival allegations against each other in the original petition No.215 of 2013 before the family court, Irinjalakuda for return of money and the said original petition shall stand withdrawn if the said Rs.21,00,000/- (Rupees twenty one lakhs only) is wholly paid and discharged and the interim attachment in the said original petition shall remain in respect of such liability remaining unpaid subject to the rights/restrictions on the entitlement under clause 8 herein. 5. The Addl 3rd petitioner (husband) has handed over to the 2nd respondent (wife), a cheque bearing no.789832 drawn on South Indian Bank, Irinjalakuda Branch, for Rs.7,00,000/- (Rupees seven lakhs only) dated 11..3.2014 towards part payment of the above amount which may be withdrawn by the 2nd respondent wife immediately. 6. The Addl. 3rd petitioner (husband) has handed over to the 2nd respondent wife, a cheque bearing no.789833 drawn on the South Indian Bank, Irinjalakuda Branch, for Rs. 14,00,000/- (Rupees Fourteen lakhs only) dated 18.9.2014 towards balance payment of the above amount which may be presented by the 2nd respondent (wife) for clearance immediately after the judgment of divorce is granted by the Family Court, Irinjalakuda. Crl. M.C. No.6502 of 2013 5 7. The 2nd respondent wife herein shall be entitled to receive the said Rupees Fourteen lakhs, if for any reason the Addl 3rd petitioner (husband) withdraws from the above petition within the statutory period for no breach of the petitioner herein. 8. The 2nd respondent wife shall not be entitled to present the cheque or receive such amount of Rupees Fourteen lakhs, if the 2nd respondent wife withdraws from joint petition under Section10A of the Indian Divorce Act within the statutory period for no breach of the Addl 3rd petitioner (husband). 9. There shall be no other or further claim(s) for any party herein as against the other which is inconsistent with what have been agreed to herein. 10. The 2nd respondent will withdraw the complaint filed by her before the District Educational Officer, Irinjalakuda against the 3rd additional petitioner and his sister Bhavana Thomas. 11. The 2nd respondent (wife) has no objection in closing the joint locker with State Bank of Travancore, Irinjalakuda, for which a letter will be issued today itself by the 2nd respondent (wife) to the 3rd additional petitioner (husband). 12. The above settlement is treated as settlement agreement in all the above cases.” 5. As per the mediation agreement, the entire dispute between them has been settled and they have decided to separate also. So the 2[nd] respondent filed an affidavit before this court, stating that, in view of the settlement arrived at in the mediation, which she had Crl. M.C. No.6502 of 2013 6 entered into voluntarily and since the entire matter has been settled between the parties and decided to withdraw all their cases pending between them, including this case, she does not want to prosecute the case against all the accused persons, who are now shown as petitioners in the above petition. The counsel for the 2[nd] respondent also submitted that, in view of the settlement, 2[nd] respondent has no grievance against the petitioners now and she has no objection in quashing the proceedings. 6. Heard the learned counsel for the petitioners, counsel for the 2[nd] respondent and learned Public Prosecutor. 7. Though, originally the petition was filed by accused Nos.2 and 3 alone for quashing the proceedings, subsequently, the first accused was also impleaded as additional 3[rd] petitioner in the case. The matter has been sent to mediation and the matter has been settled in the mediation, evidenced by the mediation agreement produced 7 Crl. M.C. No.6502 of 2013 before this court, which has been extracted above. Since it is a matrimonial dispute and the parties have settled the matter in the mediation and the 2[nd] responded does not want to prosecute the case any further, in view of the settlement arrived in the mediation. No purpose will be served by proceeding the case itself. So this can be treated as a case which was settled in mediation and that can be taken as a ground for quashing the proceedings. No purpose will be served in prosecuting the case as neither the defacto-complainant nor her witnesses will support the case and the conviction in such cases will be remote. 8. In the decision reported in **Gian Singh v. State of Punjab [2012(4) KLT 108 (SC)]** , it has been held that: “In family disputes, if the parties have settled the issues, due to the intervention of well-wishers and the family members and does not want to proceeded with the criminal prosecution initiated, then that must be honoured and the prosecution has to be quashed, invoking the power under Section 482 of the Code.” 9. In view of the dictum laid down in the above Crl. M.C. No.6502 of 2013 8 decision, and also considering the fact that, the matter has been settled in the mediation where the parties have settled all their matrimonial disputes and arrived at a settlement and as part of the settlement, they have decided to withdraw the prosecution as well, this court feels that, no purpose will be served by proceeding with the case, in view of the settlement and being a family dispute, the settlement arrived at the mediation has to be honoured to promote the relationship that has been dissolved in the mediation. So this court feels that, it is a fit case where the power under Section 482 has to be invoked to quash the proceedings to honour the settlement that has been entered into between the parties in the mediation process. So the petition is allowed and further proceedings in C.C.No.3305/2013 (Crime No.738/13 of Irinjalakuda Police Station), pending before the Judicial First Class Magistrate Court, Irinjalakuda, as against the petitioners, who are the accused Nos.1 to 3 in that case is quashed. Office is directed to 9 Crl. M.C. No.6502 of 2013 communicate this order to the concerned court for necessary further action in this in this regard, immediately. Sd/- K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss