Mohammed Shehin and others v. Fathima Sheha and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY ,THE 28TH DAY OF MARCH 2019 / 7TH CHAITHRA, 1941** ## **Crl.MC.No. 2145 of 2019** **AGAINST THE ORDER IN CC 396/2018 of JUDICIAL MAGISTRATE OF FIRST CLASS -III,KOZHIKODE** **CRIME NO. 932/2014 OF Kasaba Police Station , Kozhikode** ## **PETITIONER/ACCUSED:** - **1 MOHAMMED SHEHIN, AGED 25 YEARS S/O.MUHAMMED IQBAL, ANONAS (H), RVM COLONY, FRANCIS ROAD, KALLAI P.O., KOZHIKODE DISTRICT.** - **2 NOUL KHADAR, AGED 23 YEARS S/O.ABDUL KHADER, PENTIUM MANAR, KARATT ROAD, NADAKKAVU, KOZHIKODE DISTRICT.** - **3 JASAR V., AGED 28 YEARS S/O.LATHEEF, CHEMMANGOTT PARAMBU, NEAR KALLAI RAILWAY STATION, KOZHIKODE DISTRICT.** - **4 SAMEER BABU V.A., AGED 30 YEARS S/O.KHADER, VANDIKKARAKATH HOUSE, PANICKER ROAD, NADAKKAVU, KOZHIKODE DISTRICT.** - **5 NISAR P.M., AGED 38 YEARS S/O.MOIDEEN, PAZHERI HOUSE, IRINGALLUR, GURUVAYURAPPAN COLLEGE, KOZHIKODE DISTRICT.** - **6 FAHIM AHAMMED K.M., AGED 26 YEARS S/O.HASSAN KOYA, K.M.HOUSE, COURT ROAD, OPP.CENTRAL MARKET, KOZHIKODE DISTRICT.** - **7 HANEEFA M.P., AGED 39 YEARS S/O.MOIDEEN, K.M.HOUSE, COURT ROAD, OPP.CENTRAL MARKET, KOZHIKODE DISTRICT.** **Crl.MC.No. 2145 of 2019** **2** - **8 NAVAS P.M., S/O.MOIDEEN, PAZHERI HOUSE, MATHARA, GURUVAYURAPPAN COLLEGE, KOZHIKODE DISTRICT.** - **9 FAVAZ K., S/O.ABUBAKKER, MARSANA MANZIL, OLAVAN KOVILAKAM, OLAVANNA P.O., KOZHIKODE DISTRICT.** - **10 ZACHARIAH, AGED 38 YEARS S/O.LATHEEF, P.T.QUARTERS, ARAKINNAR, MEENCHAPPAKKU, KOZHIKODE DISTRICT.** - **11 MINESH K., AGED 35 YEARS S/O.RAMAN, KIZHZKKE KOTTAPARAMBU HOUSE, CHALAPPURAM, KOZHIKODE.** - **12 BIJITH RAHMAN @ BIJU, AGED 30 YEARS** - **S/O.KOYATTY, K.T.HOUSE, EZHUTHACHANKANDI PARAMBU, PALLIKKANDI ROAD, KUNDUNGAL, KOZHIKODE DISTRICT.** - **13 P.T.SADARIKOYA, AGED 36 YEARS** - **S/O.MOOSA, P.T.HOUSE, PANJARATHOPPU PARAMBU, PALLIKKANDI ROAD, KUNDUNGAL, KOZHIKODE DISTRICT.** - **BY ADVS. SRI.T.R.HARIKUMAR SRI.ADITHYA RAJEEV** ## **RESPONDENTS/DE FACTO COMPLAINANT & STATE:** - **1 FATHIMA SHEHA, AGED 23 YEARS, D/O.MUHAMMED IQBAL, ANONAS (H), FRANCIS ROAD, KALLAI P.O., KOZHIKODE DISTRICT, PIN - 673 003.** - **2 P.P.SHABEEB, AGED 29 YEARS S/O.BASHEER, SULEKHA MANZIL, THULAMATTOM PARAMBU, MATHOTTAM, BEYPORE P.O., KOZHIKODE DISTRICT, PIN - 673 015.** **3** ## **Crl.MC.No. 2145 of 2019** - **3 FEROZE MAMU, AGED 38, S/O.MAMUKKOYA, KAMAKHANTAKAM (H), FRANCIS ROAD, KOZHIKODE DISTRICT, PIN - 673 003.** - **4 MUHAMMAD MISHAL, AGED 28 YEARS, S/O.MUHAMMAD ASHRAF, KAMAKHANTAKAM(H), FRANCIS ROAD, KALLAI P.O., KOZHIKODE DISTRICT - 673 003.** - **5 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI - 682 031.** ## **BY ADV. SMT.PARVATHY MANOJ** **SMT.PARVATHY MANOJ FOR R1 TO R4, SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR FOR R5** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 2145 of 2019** **4** ## **ALEXANDER THOMAS, J. ========================= Crl.M.C. No.2145 of 2019** **============================** Dated this the 28[th] day of March, 2019 ## **O R D E R** The prayers in the main crime of the above Crl.M.C. is for quashment of the impugned Annexure II Final Report in Crime No.932/2014 of Kasaba Police Station, Kozhikode which has led to the institution of CC No.396/2018 on the file of the Judicial First Class Magistrate Court-III, Kozhikkode, on the ground that the entire dispute has been settled between the petitioners/accused and the contesting respondents Nos.1 to4 (de facto complainants/victims). 2. Heard Sri.Adithya Rajeev learned counsel appearing for the petitioners, Sri.Saiji Jacob Palatty, learned Prosecutor appearing for Official respondent No.5 (State of Kerala) and Smt.Parvathy Manoj, learned counsel appearing for contesting respondents 1 to 4. 3. The petitioners are accused in Annexure I First Information Report in crime No.932/2014 of Kasaba Police Station, Kozhikode for offences punishable under Sections 143, 147, 148, 324, 354, 427, 365, **Crl.MC.No. 2145 of 2019** **5** 307 r/w Section 149 of the IPC and Section 7 r/w Section 25 (1A) of the Arms Act. The police after investigation has filed the impugned Annexure II Final Report/Charge sheet which has led to the institution of CC No.396/2018 of the Judicial First Class magistrate Court-III, Kozhikode. In the Annexure II Final Report the offences under Section 307 of the IPC which was initially mentioned in the FIR has been deleted and the present offences alleged in the Final Report/Charge sheet are those punishable under Sections 143, 147, 148, 324, 506(ii) r/w Section 149 of the IPC and Section 7 r/w Section 25(1A) of the Arms Act. 4. The brief of the prosecution case is that the 1[st] petitioner (accused No.1) is the brother of contesting respondent No.1 (lady de facto complainant) and that she was in love with contesting respondent No.2 which was consistently opposed by 1[st] petitioner (Accused No.1) and other members of the family and they had taken affront to the said love affair between contesting respondents 1 and 2 and on 30.10.2014 at about 4.50 p.m., while respondent Nos. 1 and 2 were traveling together in a car, the accused being infuriated by the attempt on the part of the 1[st] respondent to marry the 2[nd ] respondent, had threatened the respondents **Crl.MC.No. 2145 of 2019** **6** using sword, knifes, sticks etc. and caused bodily harm the respondents by using helmet and bottle etc. Later the family members of 1[st] petitioner (accused No.1) and contesting respondent No.1 (lady de facto complainant), had quashed with the entire matter and the family had accepted the marriage between respondent Nos.1 and 2 and due to the intervention of well wishers and friends in the locality, the parties are now decided to settle the entire disputes and contesting respondents 1 to 4 have now filed Annexures III to VI tune of affidavits stating that the entire disputes between them and the petitioners/accused persons are now fully settled and that the contesting respondents are no longer interested to prosecute the matter to any further and that taking into consideration of the fact that the harmony in the family relationship of respondent No.1 and the 1[st] petitioner has been restored, it is only conducive to the interest of contesting respondent No.1 that the impugned criminal proceeding is terminated as otherwise the harmony and peace that has been obtained in the family may be lost. 5. It is by now well established that even for non compoundable offences, the impugned criminal proceedings could be quashed on the ground of settlement between the parties by invoking **Crl.MC.No. 2145 of 2019** **7** the inherent distinction powers under Section 482 of the Code of Criminal Procedure, provided the disputations are mainly in the realm of civil disputes, commercial disputes, marital and family relationships etc. 6. However the Apex Court has held in various decisions as in _**Narinder Singh & Ors v. State of Punjab & Anr**_ [2014(6) SCC 466], as well as a recent order rendered on 5.03.2019 by the Apex Court in the case of _**The State of Madhya Pradesh v. Laxmi Narayan Agarwal and ors**_ (Civil Appeal No.349/2019), that offences as those under Section 307 of the IPC and of the Arms Act which have serious impact on the society may not be quashed in the exercise of powers under Section 482 of the Code of Criminal Procedure on the ground that parties are resolved the entire disputes but that the High Court need not rest in this decision merely because there is a mention of the offence as per Section 307 of the IPC and /the Arms Act in the FIR or in the final report/charge sheet and that it is for the High Court to examine as to whether the incorporation of those offences as per Section 307 of the IPC and/the Arms Act is there for the sake of it or whether the prosecution has collected sufficient evidence, if granted would need for **Crl.MC.No. 2145 of 2019** **8** framing of the charge for such serious offences etc. For that purposes it has been held that it will be open to the High Court in exercise its inherent discretion powers conferred under Section 482 of the Code of Criminal Procedure to go by the nature of injury sustained, whether such injury is detected on the delicate parts of the body from nature of weapons used etc. 7. Having regard to those parameters, it is seen that though serious offences under Section 307 of the IPC was alleged the FIR the police after investigation has duly deleted the same. However the offences under Section 7 r/w Section 25 (1A) of the Arms Act are retained in the impugned Annexure II final report/charge sheet. On a reading of the materials provided in the impugned Annexure II final report/charge sheet it is seen that the main allegation of the prosecution is that the animosity arose on account of the difference of opinion between 1[st] petitioner (accused No.1) and sister (respondent No.1/ lady de facto complainant) in as much as the love affair between Respondent Nos.1 & 2 was seriously opposed by the family members of respondent No.1 including 1[st] petitioner and the alleged incidents are taken place in the context of that family disputes. The main allegation is that the **Crl.MC.No. 2145 of 2019** **9** accused persons have shown swords, knifes etc. had threatened the contesting respondents 1 to 4 and but the Act Arm threat has been caused mainly by use of helmet and bottle. There is no allegation whatsoever that any injury has been caused by the alleged Arms. So also the investigation has now found that the serious allegation of offence under Section 307 of the IPC is not made out and the said offence has been duly deleted. What remains is the above said offences in Arms Act it is mainly in relation to the alleged possession of the above said Arms and no harm or injury has been caused by the alleged use of this Arms. Since the family harmony has been restored by the abovesaid compromise process and as the 1[st] petitioner and his family members have accepted the marriage between respondent No.1 (sister of 1[st] petitioner) and respondent No.2, it is only fair and just that this Court also exercise discretion in such a manner that the peace and harmony is maintained among the members of the family. 8. In the light of these crucial factual aspects this Court is inclined to exercise its extra ordinary discretionary inherent powers conferred under Section 482 of Code of Criminal Procedure for quashment impugned criminal proceedings on the ground of settlement **Crl.MC.No. 2145 of 2019** **10** between the parties. In that view of the matter it is ordered that the impugned Annexure II final report/charge sheet filed in crime No.932/2014 of Kasaba Police Station, Kozhikkode which has led to the institution of C.C No.396/2018 on the file of Judicial First Class Magistrate Court-III, Kozhikkode and all further proceedings taken in pursuance thereof as against the all accused persons will stand quashed. With these observations and directions the above Criminal Miscellaneous Case will stand finally disposed of. **Sd/-** ## **ALEXANDER THOMAS** **JUDGE** mpm **Crl.MC.No. 2145 of 2019** **11** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **ANNEXURE I TRUE COPY OF THE FIRST INFORMATION REPORT DATED 30/10/2014 IN CRIME NO.932/2014 OF THE KASABA POLICE STATION, KOZHIKODE. ANNEXURE II CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.932/14 OF THE KASABA POLICE STATION DATED 18/06/2018. ANNEXURE III AFFIDAVIT SWORN BY THE 1ST RESPONDENT DATED 01/03/2019. ANNEXURE IV AFFIDAVIT SWORN BY THE 2ND RESPONDENT DATED 01/03/2019. ANNEXURE V AFFIDAVIT SWORN BY THE 3RD RESPONDENT DATED 01/03/2019. ANNEXURE VI AFFIDAVIT SWORN BY THE 4TH RESPONDENT DATED 01/03/2019.** // True Copy // P.A. to Judge