Nasil v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 24TH DAY OF MARCH 2014/3RD CHAITHRA, 1936** ## **Crl.MC.No. 1593 of 2014 ()** **--------------------------CC. NO.782/2012 OF CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM. CRIME NO.294/2012 OF MATTANCHERRY POLICE STATION.** **........** ## **PETITIONER/ACCUSED NO.2 IN C.C. NO.782/2012 OF CJM, ERNAKULAM. :** **-----------------------------------------------------------------------------------------------------------** **NASIL, AGED 23 YEARS, S/O.NAZAR, PUTHALATH-H, NEAR SUJATHA THEATRE, PANDIKUDI, NOW RESIDING AT CHEMEEN'S JN., THOPUMPADY, ERNAKULAM.** **BY ADVS.SRI.PRAVEEN K. JOY, SRI.T.A.JOY.** ## **RESPONDENT/STATE AND DEFACTO COMPLAINANT IN CC.782/2012:** **------------------------------------------------------------------------------------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **2. ISMAIL, AGED 63 YEARS, S/O.YOUSEF, CC-13/384, KOCHANGADI, MATTANCHERRY.** *** ADDL. R3 & R4 IMPLEADED** **3. NABEEZA, AGED 55, W/O.ISMAIL, CC-13/384, KOCHI, MATTANCHERRY.** **4. SULFIKER, AGED 27, S/O.ISMAIL, CC-13/84, KOCHI, MATTANCHERRY.** *** ADDL. R3 & R4 ARE IMPLEADED AS PER ORDER DATED 24/03/2014 IN CRL.MA. NO.2795/2014.** **R1 BY PUBLIC PROSECUTOR SMT.SAREENA GEORGE. P. ADDL. R3 & R4 BY ADV. SRI.E.B.SHAIJU.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rs.** **Crl.MC.No. 1593 of 2014** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **ANNEXURE I COPY OF THE REPORT IN CRIME C.C. NO.782/2012 IN CRIME NO.294/2012 OF CJM, ERNAKULAM.** **ANNEXURE II THE ORIGINAL AFFIDAVIT SUBMITTED BY 2ND RESPONDENT BEFORE THIS HONOURABLE COURT.** ## **RESPONDENT'S ANNEXURES:-** **ANNEXURE R3A COPY OF THE AFFIDAVIT OF THE 1ST PETITIONER. ANNEXURE R3B COPY OF THE AFFIDAVIT OF THE 2ND PETITIONER.** ## **//TRUE COPY//** **P.A. TO JUDGE** **rs.** K. RAMAKRISHNAN, J. -------------------------------------------------------------Crl. M.C. No.1593 of 2014 --------------------------------------------------------------------Dated this the 24[th] day of March, 2014 ## O R D E R This criminal miscellaneous case is field by the 2[nd] accused in C.C.No.782/2012 on the file of the Chief Judicial Magistrate Court, Ernakulam, to quash the proceedings as against him, in view of the settlement arrived at between the defacto-complainant and other injured persons 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 C.C.No.782/2012 on the file of the Chief Judicial Magistrate Court, Ernakulam. On the basis of the statement given by the 2[nd] respondent/ Defactocomplainant Annexure-A1 First Information Report was registered a crime as Crime No.294/2012 of Mattancherry Police Station, against the present petitioner and another, 2 Crl. M.C. No.1593 of 2014 alleging offences under Section 451, 323 and Section 34 of Indian Penal Code. After investigation, final report was field and the case was taken on file as C.C.No.782/2012 and it is pending before the Chief Judicial Magistrate CourtErnakulam. Now the matter has been settled between the 2[nd] respondent, defacto-complainant and others. In view of the settlement, there is no possibility of any conviction being entered against the petitioner. Since some of the offences are non compoundable in nature, they could not file any application before the court below, for recording the composition. So the petitioner has no other remedy, except to approach this court, seeking the following relief: “For these and other reasons which may be urged at the time of hearing it is most respectfully prayed that this Hon'ble Court may be pleased to call for the entire records leading to Annexure-I charge in C.C.782/12 in Crime No.294/12 of Mattancherry Police, now before Chief Judicial Magistrate Court at Ernakulam and to quash the charge as against the petitioner, by allowing this Criminal MC, in the interest of justice.” 3. Originally, only the defacto-complainant was impleaded as 2[nd] respondent and he entered appearance through counsel and also filed Annexure-2 affidavit. Later 3 Crl. M.C. No.1593 of 2014 the other two injured persons were also impleaded as additional respondent, as per order in Crl.M.A.No.2795/2014 and they filed R3(a) and R3(b) affidavits and they were represented by the same counsel, who was appearing for the 2[nd] respondent as well. 4. The counsel for respondents 2 to 4 submitted that, the matter has been settled and it arose on account of a family dispute and it has been settled due to the intervention of mediators, friends and family members. So they do not want to prosecute the case. The counsel for the petitioner also submitted that in view of the settlement, possibility of conviction is remote. 5. Learned Public Prosecutor, on instructions, as directed by this court, submitted that, except this case, there is no cases against the petitioner, but opposed the application. 6. It is an admitted fact that, on the basis of the statement given by the 2[nd] respondent, Annexure-1 crime was registered and after investigation, final report was field Crl. M.C. No.1593 of 2014 4 and it was taken on file as C.C. 782/2012 on the file of the Chief Judicial Magistrate Court, Ernakulam, against the present petitioner and another. The matter has been settled between the parties. The parties are relatives as well. Annexures-2, R3(a) and (b) affidavits field by the respondents 2 to 4 will go to show that, the family dispute, which is the basis for the registration of this crime has been settled amicably between them and the original harmony has been restored in the family on account of the settlement. 7. 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 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 Crl. M.C. No.1593 of 2014 5 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.” 8. In view of the dictum laid down in the above decision and also considering the fact that, the crime itself has been originated on the basis of a family dispute and that has been settled between the parties and peace and harmony has been restored in the family on account of the settlement and no possibility of conviction, if the case is 6 Crl. M.C. No.1593 of 2014 allowed to proceed with against the petitioner, in view of the settlement, 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 against the petitioner, so as to promote peace and harmony that has been restored in the family on account of the settlement. So the application is allowed and further proceedings in C.C.No.782/2012 (Crime No.294/2012 of Mattancherry Police Station) pending before the Chief Judicial Magistrate Court, Ernakulam, as against the petitioner is quashed. Office is directed to communicate this order to the concerned court, immediately. Sd/K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss