Muhammed Hussain v. State of Kerala and Pathumma

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 04TH DAY OF JUNE 2019 / 14TH JYAISHTA, 1941** ## **Crl.MC.No. 3724 of 2019** **AGAINST THE ORDER/JUDGMENT IN CRA 82/2019 of DISTRICT COURT& SESSIONS COURT,MANJERI** **AGAINST THE ORDER/JUDGMENT IN CC 63/2015 of JUDICIAL MAGISTRATE OF FIRST CLASS -II,PERINTHALMANNA CRIME NO. 668/2014 OF Melattur Police Station , Malappuram** **PETITIONER/S:** **MUHAMMED HUSSAIN, AGED 48 YEARS, S/O. IBRAHIM, PARAMMAL HOUSE, PARAMBOOR, KEEZHATTUR, PERINTALMANNA TALUK, MALAPPURAM DISTRICT** **BY ADV. SRI.U.K.DEVIDAS** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2 PATHUMMA, AGED 74 YEARS, D/O. ALAVI (LATE), PARAMMAL HOUSE, PARAMBOOR, PATTIKKAD P.O., PERINTALMANNA TALUK, MALAPPURAM DISTRICT - 679 325** ## **OTHER PRESENT:** **SRI.AMJAD ALI, PUBLIC PROSECUTOR FOR R1, SRI.PRINSUN PHILIP FOR R2** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30.5.2019, THE COURT ON 04.06.2019 PASSED THE FOLLOWING:** **ALEXANDER THOMAS, J.** ================== Crl.M.C.No. 3724 of 2019 ================== Dated this the 4[th] day of June, 2019 ## **O R D E R** The petitioner is the accused in Calendar Case, C.C.No. 63/2015 on the file of the Judicial First Class Magistrate's Court-II, Perinthalmanna, which has arisen out of Crime No.668/2014 of Melathur Police Station, registered for offences punishable under Secs.452 and 362 of the I.P.C. 2. The brief of the prosecution case is that on 11.11.2014 at about 17 Hours, the petitioner accused had trespassed into the house of the defacto complainant and attacked her with a wooden stick. The Police, after investigation has submitted the impugned Anx.I final report/charge sheet in Crime No.668/2014 of Melathur Police Station, which has led to the institution of aforementioned C.C.No. 63/2015 on the file of the Judicial First Class Magistrate's Court-II, Perinthalmanna. After trial, the petitioner has been convicted as per Anx.II judgment dated 28.3.2019 of the Judicial First Class Magistrate's Court-II, Perinthalmanna, in C.C.No.63/2015 and he has been sentenced to undergo rigorous imprisonment for a period of 2[1] /2 years and to pay fine of Rs.10,000/- and in default thereof, to Crl.M.C.3724/19 - : 3 :- undergo rigorous imprisonment for a period of 3 months under Secs. 326 and 452 of the I.P.C. Aggrieved by the abovesaid conviction and sentence, the petitioner has filed Crl.Appeal No.82/2019 before the Sessions Court, Manjeri. It is stated the Sessions Court has now suspended the impugned sentence as per Anx.III order dated 25.4.2019 in Crl.M.P.No.956/2019 in Crl.Appeal No. 82/2019. The abovesaid impugned criminal proceedings have been set in motion on the basis of the complaint/first information statement of the 2[nd] respondent lady defacto complainant. 3. It is now stated that the disputes between the petitioner accused and the 2[nd] respondent defacto complainant have now been settled due to the intervention of the mediators and well-wishers, etc. and the 2[nd] respondent has sworn to Anx. IV affidavit dated 21.5.2019 stating about the factual aspects of the settlement and that she does not intend to continue the prosecution any further and that she has no objection in the quashment of the impugned criminal proceedings as against the petitioner and for the consequential setting aside of the conviction and sentence imposed on the petitioner by the learned Magistrate, etc. 4. Heard Sri.U.K.Devidas, learned counsel appearing for the Crl.M.C.3724/19 - : 4 :- petitioner accused, Sri.Prinsun Philip, learned counsel appearing for the 2[nd] respondent defacto complainant and Sri.Amjad Ali, learned Prosecutor appearing for the 1[st] respondent State. 5. It is seen that the offences alleged against the petitioner in the instant crime are those under Secs.452 and 326 of the I.P.C. It is now submitted by the learned Advocates appearing on both sides that the entire disputes between the parties have been settled. Sri.Prinsun Philip, learned counsel appearing for the 2[nd] respondent would submit on the basis of the instructions of this party that, as the entire issues have been settled by her with the petitioner accused, the 2[nd] respondent is not interested to continue with the above criminal proceedings and that she has no objections in this Court quashing the impugned criminal proceedings as against the petitioner and for consequential setting aside of the impugned conviction and sentence imposed on the petitioner, etc. 6. The learned Advocates appearing in both these cases would point out that the Apex Court in the judgment dated 26.3.2018 in Crl.A.No.487/2018 in the case in _**Bitan Senguptha & ors. v. The State of West Bengal & ors**_ . [2018 (9) SCALE 249 = MANU/SC/0776/2018] has dealt with almost similar case wherein the Crl.M.C.3724/19 - : 5 :- offences alleged therein are those under Secs.498A, 406 & 506 of the I.P.C as well as Secs.3 & 4 of the Dowry Prohibition Act, etc. The learned judicial Magistrate as per judgment dated 27.6.2014 found the appellants guilty of the offence under Sec.498A of the I.P.C and directed the appellant No.1 to undergo rigorous imprisonment for 1 year and simple imprisonment for 6 months to appellant No.2. Being aggrieved therein, the appellants filed appeal before the Sessions Court which was dismissed vide order dated 21.9.2016. During the pendency of the above appeal before the Sessions Court, the appellant and the 2[nd] respondent had arrived at a compromise and accordingly memorandum of understanding was executed on the basis of which the parties had amicably settled their marital disputes. The dismissal of the Criminal Appeal was challenged by filing Criminal Revision Petition before the High Court and the High Court as per order dated 12.9.2017 had concurred with the appellate Sessions Court which led to the dismissal of the Revision Petition. The Supreme Court has held that as the parties have settled the matter and as they have decided to keep harmony between them to enable them to life with peace and love and as the defacto complainant has no complainant against the appellant therein, etc., it was held that going by the spirit of law laid down by the Apex Court in the decision in _**B.S.Joshi & ors. v. State of Haryana & anr**_ , Crl.M.C.3724/19 - : 6 :- reported in (2003) 4 SCC 675, that the High Court should have accepted the settlement and should have quashed the impugned criminal proceedings. Accordingly, the Apex Court as per the abovesaid judgment had accepted the settlement arrived at between the parties and accordingly set aside the order of conviction passed against the appellants, etc. This Court in various cases as in _**Biju Eappan v. State of Kerala**_ , reported in 2010 (1) KLT 289, has dealt with a similar case and has held that the appellate Sessions Court cannot set aside the conviction imposed by the trial court on the basis of the settlement arrived at between the parties, this Court exercising the extra ordinary inherent powers under Sec.482 of the Cr.P.C, could definitely, set aside the conviction and quash the proceedings when due to the settlement of all the matrimonial disputes, conviction passed by the learned Magistrate under Anx-A1 is necessarily to be interfered with, to secure the justice, exercising the powers under Secs.482 of the Cr.P.C. This Court had followed the dictum laid down by the Apex Court in the aforestated celebrated case in _**B.S.Joshi & ors. v. State of Haryana &**_ _**anr**_ , reported in (2003) 4 SCC 675 in that matter. In Crl.M.C.No.3535/2018, the offences alleged are those under Secs.341, 323, 324, 326 & 354 r/w Sec.34 of the I.P.C. This Court in a similar case in Crl.M.C.No.7840/2017 (order dated 22.11.2017) had quashed the Crl.M.C.3724/19 - : 7 :- impugned criminal proceedings in case where the accused was initially convicted by the trial court and during the pendency of the appeal, parties have arrived at a compromise. The petitioner in Crl.M.C.No. 3535/2018 was a juvenile at the time of commission of the offence. The abovesaid rulings of the Apex Court and this Court have been followed by this Court in cases as in Crl.M.C.No. 3535/2018. 7. Accordingly, it is ordered that the impugned Anx.I final report/charge sheet filed in Crime No. 668/2014 of Melathur Police Station, which has led to the institution of Calendar Case, C.C.No. 63/2015 on the file of the Judicial First Class Magistrate's Court-II, Perinthalmanna, and all further proceedings taken in pursuance thereof will stand quashed. Consequentially, it is ordered that the impugned conviction and sentence imposed on the petitioner as per Anx.II judgment dated 28.3.2019 of the Judicial First Class Magistrate's Court-II, Perinthalmanna, in C.C.No. 63/2015 will also stand set aside and the very impugned criminal proceedings have already been quashed on the basis of the settlement. Consequentially it is further ordered that Crl.Appeal No. 82/2019 on the file of the Sessions Court, Manjeri will stand disposed of as infructuous, in the light of of the abovesaid directions. Crl.M.C.3724/19 - : 8 :- The petitioner will produce certified copies of this order before the investigating officer concerned, the Judicial First Class Magistrate's Court-II, Perinthalmanna and the Sessions Court, Manjeri, necessary information. The office of the Advocate General will forward certified copy of this order to the investigating officer concerned for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand finally disposed of. **Sd/-** sdk+ **ALEXANDER THOMAS, JUDGE** Crl.M.C.3724/19 - : 9 :- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE -I TRUE COPY OF THE FINAL REPORT IN CRIME NO. 668/13 OF MELATTUR POLICE STATION DATED 01.12.2014** **ANNEXURE -II TRUE COPY OF THE JUDGMENT DATED 28.03.2019 IN C.C. NO. 63/2015 ON THE FILES OF THE J.F.C.M. COURT-II, PERINTALMANNA** **ANNEXURE -III TRUE COPY OF THE ORDER DATED 25.04.2019 IN CR.M.P. NO.956/2019 IN CRL. APPEAL NO.82/2019 ON THE FILES OF THE HONOURABLE SESSIONS COURT, MANJERI** **ANNEXURE -IV THE ORIGINAL OF THE AFFIDAVIT DATED 21.05.2019 EXECUTED BY THE SECOND RESPONDENT**