Mas Siraj @ Koyappa Kovilakath Thajudeen v. State of Kerala and T.K. Mohammed Rafi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **WEDNESDAY, THE 9TH DAY OF APRIL 2014/19TH CHAITHRA, 1936** ## **Crl.MC.No. 2057 of 2014 ()** **--------------------------CC.NO. 180/2011 OF CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE CRIME NO. 355/2011 OF PANNIANKARA POLICE STATION, KOZHIKODE** **--------------------** ## **PETITIONER/ACCUSED :** **------------------------------------** **MAS SIRAJ @ KOYAPPA KOVILAKATH THAJUDEEN AGED 24 YRS., S/O.MUHAMMED KUTTY, KOYAPPA KOVILAKATH HOUSE VAILIKULAMVU, EDARIKODE P.O., MALAPPURAM DISTRICT.** ## **BY ADV. SRI.C.M.MOHAMMED IQUABAL** ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT :** **----------------------------------------------------------------------------** **1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **2. T.K.MOHAMMED RAFI,** **S/O.MAMMAD, AGED 40 YRS., BAITHUL MAMMAD HOUSE, POST NALLALAM KOZHIKODE DISTRICT-677 315.** **R1 BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE P. R2 BY ADV. SRI.A.V.ANVAR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09-04-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Mn** **...2/-** **Crl.MC.No. 2057 of 2014 () -------------------------------------** ## **APPENDIX** |**PETITIONERS' ANNEXURES :**|**PETITIONERS' ANNEXURES :**| |---|---| |**-------------------------------------------**|| |**ANNEXURE A1:**|**THE TRUE COPY OF THE FIR IN CRIME NO.355/2011 OF**| ||**PANNIYANKARA POLICE STATION DATED 25/9/2011.**| |**ANNEXURE A2:**|**THE TRUE COPY OF THE CHARGE IN CRIME NO.355/2011 OF**| ||**PANNIYANKARA POLICE STATION DATED 12/10/2011.**| |**ANNEXURE A3:**|**THE AFFIDAVIT OF THE SECOND RESPONDENT DATED**| ||**18/03/2014.**| |**RESPONDENT(S)'**|**EXHIBITS : NIL**| |**-------------------------------------------------------------**|| **//TRUE COPY//** **P.A. TO JUDGE Mn** K. RAMAKRISHNAN, J. -----------------------------------------------------------------Crl.M.C. No.2057 of 2014 ------------------------------------------------------------------------Dated this the 9[th] day of April, 2014 ## O R D E R This Criminal miscellaneous case is filed by the petitioner, who is the sole accused in C.C.No.180/2011 on the file of the Chief Judicial Magistrate Court, Kozhikode, to quash the proceedings on the basis of the settlement under Section 482 of the Code of Criminal Procedure Code (hereinafter called the ‘Code’). 2. It is alleged in the petition that, the petitioner is the sole accused in Crime No.355/2011 of Panniyankara Police Station of Kozhikode District, which was registered on the basis of the statement given by the 2[nd] respondent/defacto-complainant against the petitioner, alleging offences under Section 341, 323, 294(b) and 392 of the Indian Penal Code. After investigation, final report was filed and it was taken on file as C.C.No.180/2011 and pending before the Chief Judicial Magistrate Court, Kozhikode. In the meantime, the matter has been settled Crl.M.C. No.2057 of 2014 2 between the petitioner and the defacto-complainant due to the intervention of mediators, as they were neighbours and their relationship has been restored. Since, some of the offences are non-compoundable in nature, they could not file the application before the court below to record compounding and no purpose will be served by proceeding with the case as well because of the settlement. He has no other remedy, except to approach this court, seeking the following relief: “For the reasons stated above, it is respectfully prayed that this Hon'ble Court may be pleased to pass an order quashing Annexure-A1 FIR, Annexure-A2 charge in Crime No.355/2011 of Panniyankara Police Station and CC.No.180/2011 of CJM Court, Kozhikode, for the interest of justice.” 3. 2[nd] respondent appeared through counsel and submitted that, the matter has been settled between the parties due to the intervention of friends and relatives and they are neighbours and their relationship has been restored and he does not want to prosecute the case. He had filed Annexure-A3 affidavit showing these aspects. The Crl.M.C. No.2057 of 2014 3 counsel for the petitioner also submitted that, in view of the settlement, there is no possibility of conviction and he prayed for allowing the application. 4. Learned Public Prosecutor on instructions, as directed by this court submitted that, there is no other case pending against the petitioner, but the petitioner was absconding and he had not appeared the court below at all and opposed the application. 5. It is an admitted fact that, on the basis of the statement given by the 2[nd] respondent, Annexure-A1 first information report was registered as Crime No.355/2011 of Panniyankara Police Station, against the petitioner, alleging offences under Sections 341, 323, 294(b) and 392 of the Indian Penal Code and after investigation final report was filed and it was taken on file as C.C.No.180/2011 and now pending before the Chief Judicial Magistrate Court, Kozhikode. Now the matter has been settled between the parties. It is seen from the affidavit that, the parties are Crl.M.C. No.2057 of 2014 4 neighbours and due to the intervention of mediators, the entire difference of opinion between them has been resolved and he had decided not to proceed against the petitioner on account of the settlement. So, even if the matter is allowed to continue, there is no possibility of conviction on account of the settlement and the relationship between the neighbours has been restored as well. It is a dispute between the neighbours and cannot be said to be an incident of public interest, though Section 392 of the Indian Penal Code was incorporated. 6. In the decision reported in **Gian Singh v. State of Punjab [2012(4) KLT 108 (SC)]** , it has been held that: “The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceedings 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 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 FIR may be exercised where the offender and Crl.M.C. No.2057 of 2014 5 victim have settled their dispute would depend on the facts and circumstances of each case an no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc., cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. 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 mercantile, 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. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceedings or continuation of the criminal proceedings would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question (s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.” 7. In view of the dictum laid down in the above decision and also considering the fact that, the matter has been settled between the parties and on account of the Crl.M.C. No.2057 of 2014 6 settlement, the relationship between the neighbours have been restored and there is no possibility of conviction on account of the same, this court feels that, it is a fit case where the power under Section 482 of the Code of Criminal Procedure has to be invoked to quash the proceedings to promote the settlement. So the petition is allowed and further proceedings in C.C.No.180/2011 (Crime No.355/2011 of Panniyankara Police Station) pending before the Chief Judicial Magistrate Court, Kozhikode as against the petitioner is quashed. Office is directed to communicate this order to the concerned court, for necessary further action. Sd/K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss