Mohammed RafeeK v. State of Kerala and Ali Hassan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 28TH DAY OF FEBRUARY 2014/9TH PHALGUNA, 1935** ## **Crl.MC.No. 1061 of 2014 ()** **--------------------------LP.NO. 144/2004 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, MALAPPURAM CRIME NO. 243/2001 OF KONDOTTY POLICE STATION , MALAPPURAM DISTRICT --------------------------------------** ## **PETITIONER/ACCUSED:** **------------------------------------------** **MOHAMMED RAFEEK, AGED 33 YEARS, S/O.KUTTIHASSAN HAJI, PARASSERI HOUSE, PARATHAKKAD, KONDOTTY MALAPPURAM DISTRICT.** **BY ADV. SRI.P.SAMSUDIN** ## **RESPONDENTS/STATE AND DE-FACTO COMPLAINANT :** **------------------------------------------------------------------------------------** ## **1. STATE OF KERALA,** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.PIN-682 031** **2. ALI HASSAN, AGED 30 YEARS,S/O.POCKER, MANGALASSERI HOUSE, OLAVATTOOR P.O - 679 302, KONDOTTY MALAPPURAM DISTRICT.** **R1 BY PUBLIC PROSECUTOR SMT.SAREENA GEORGE R2 BY ADV. SMT.NIMA JACOB** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28-02-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** **Crl.MC.No. 1061 of 2014 () --------------------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES: -------------------------------------------ANNEX.1 - TRUE COPY OF THE FINAL REPORT IN CRIME NO.243/2001 OF KONDOTTY POLICE STATION. ANNEX.A2 - TRUE COPY OF THE AFFIDAVIT SWORN IN BY THE 2ND RESPONDENT.** **RESPONDENT(S)' ANNEXURES: NIL** **/TRUE COPY/ P.A.TO.JUDGE** **sts** K. RAMAKRISHNAN, J. -----------------------------------------------------------------Crl. M.C. No.1061 of 2014 --------------------------------------------------------------------Dated this the 28[th] day of February, 2014 ## O R D E R This Criminal miscellaneous case is field by the petitioner, who is the 2[nd] accused in Crime No.243/2001 of Kondotty Police Station, now pending as L.P.No.144/2004 on the file of the Judicial First Class Magistrate Court, Malappuram, to quash the proceedings, recording the composition under Section 482 of the Code of Criminal Procedure (hereinafter called the 'Code'). 2. It is alleged in the petition that, the petitioner is the 2[nd] accused in Crime No.243/2001 of Kondotty Police Station, which was registered on the basis of the statement given by the 2[nd] respondent, alleging offences under Section 448, 341, 324 read with Section 34 of the Indian Penal Code, against the petitioner and another person. After investigation, Crl. M.C. No.1061 of 2014 2 Annexure-A1 final report was filed, which was originally taken on file as C.C.No.788/2001. Though the petitioner appeared and enlarged on bail earlier, later he went abroad and he could not participate in the proceedings. So the case against the first accused was proceeded with and ended in acquittal. The case against the present petitioner was split up and later transferred to the register of long pending cases as L.P.144/2004 and now it is so pending on the files of Judicial First Class Magistrate Court, Malappuram. Now the matter has been settled between the petitioner and the 2[nd] respondent, due to the intervention of mediators and well-wishers. There is no possibility of any conviction being entered into against the petitioner, even if the trial was allowed to proceed with. The 2[nd] respondent filed an affidavit to that effect as well. Since some of the offences are noncompoundable in nature, the petitioner has no other remedy except to approach this court, seeking the following relief: “For these and other grounds to be urged at the time of hearing it is most humbly prayed that this Crl. M.C. No.1061 of 2014 3 Hon'ble Court be pleased to quash all further proceedings against the petitioner/ Accused pursuant to Annexure-A1 charge sheet in Crime No.234/2001 of Kondotty Police Station and pending as L.P.No.144/2004 on the files of Judicial first Class Magistrate Court, Malappuram, in the interest of justice.” 3. 2[nd] respondent appeared through counsel and submitted that, the matter has been settled and the defacto-complainant has no objection in quashing the proceedings. 4. Learned Public Prosecutor on instructions submitted that, except this case, there is no other case against the petitioner and he has no criminal back ground and the case against the first accused ended in acquittal, and he is no more now as well. 5. Learned counsel for the petitioner also submitted that, the petitioner and the 2[nd] respondent were residing in the same locality and the relationship has been restored as before due to the intervention of mediators. 6. It is an admitted fact that, a case was registered as Crime No.243/2001 of Kondotty Police Station, on the basis of the statement given by the 2[nd] Crl. M.C. No.1061 of 2014 4 respondent, as defacto-complainant against the present petitioner and another person, alleging offences under Section 448, 341, 324 read with Section 34 of the Indian Penal Code. It is also an admitted fact that, after investigation, Annexure-A1 final report was field and it was taken on file as C.C.788/2001 on the file of the Judicial First Class Magistrate Court, Malappuram. It is mentioned in the petition that, the case against the first accused after trial was ended in acquittal. It is also submitted by learned Public Prosecutor that, he is no more now. Since the petitioner did not appear later, the case against him was split up and later transferred to the register of long pending cases and it is now pending as L.P.No.144/2004 on the file of the Judicial First Class magistrate Court, Malappuram. Now the matter has been settled between the defacto-complainant, who is the 2[nd] respondent herein and the defacto-complainant filed Annexure-A2 affidavit stating that, due to the intervention of mediators and well-wishers, the matter has been settled and their relationship has been restored as before Crl. M.C. No.1061 of 2014 5 ## and he does not want to prosecute the case. ## 7. In the decision reported in **Gian Singh v. State of Punjab [2012(4) KLT 108 (SC)]** , stated as ## follows: “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 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 Crl. M.C. No.1061 of 2014 6 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.” 8. Considering the dictum laid down in the decision mentioned above and also considering the fact that, the matter has been settled between the defactocomplainant and the present petitioner and the case against the first accused ended in acquittal after trail, even if the case against the petitioner is allowed to proceed with, there is a remote chance of conviction and doing that exercise will only a wastage of judicial time as well. Further the petitioner and the 2[nd] respondent were coming from the same locality and the matter has been settled between them and their relationship has been restored due to the intervention of mediators. So considering the above circumstances, this court feels that, it is a fit case where the power under Section 482 of the 'Code' has to be invoked to quash the proceedings as Crl. M.C. No.1061 of 2014 7 no purpose will be served by retaining the case on file, in view of the settlement arrived at between the parties. So, the application is allowed and further proceedings in L.P.No.144/2004 (Crime No.243/2001 of Kondotty Police Station) now pending before the Judicial First Class Magistrate Court, Malappuram, as against the petitioner is quashed. Office is directed to communicate this order to the concerned court, immediately for further action. Sd/- K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss