Pulikkal Rashad v. State of Kerala & Kareem v. State of Kerala (Crl.M.C. Nos. 3535/2018 & 591/2019)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 09TH DAY OF APRIL 2019 / 19TH CHAITHRA, 1941** ## **Crl.MC.No. 3535 of 2018** **AGAINST THE ORDER/JUDGMENT IN CC 15/2010 of JUVENILE JUSTICE BOARD, MANJERI DATED 29-07-2017 CRIME NO. 223/2009 OF Kondotty Police Station , Malappuram** ## **PETITIONER/S:** **PULIKKAL RASHAD, S/O.ABDUL RASAQU, MARATHUM PALLIYIL HOUSE, MILLUMPADI, NEDIRUPPU.** **BY ADV. SRI.SOJAN MICHEAL** ## **RESPONDENT/S:** - **1 STATE OF KERALA** - **(S.I. OF POLICE, KONDOTTY POLICE STATION), REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.** **2 DR.V.K.MOIDEEN, S/O.UNNI MAMMU @ KUNHAN HAJI, AGED 66 YEARS, VATTOMKANDATHIL HOUSE, JUBILEE ROAD, PERINTHALMANNA, MALAPPURAM DISTRICT, PIN-679 322.** - **3 RASIYA, W/O.V.K.MOIDEEN, AGED 54 YEARS, SHADOWS, JUBILEE ROAD, PERINTHALMANNA, MALAPPURAM DISTRICT, PIN-679 322.** - **4 DR. SALILA, W/O.DR.SHANOJ R.V., AGED 32 YEARS, RAMACHAN PARAMBIL, MALAPARAMBU, MALAPPURAM DISTRICT, PIN-679572.** - **5 DR. SUMILA, D/O. DR.V.K.MOIDEEN, AGED 27 YEARS, SHADOWS, JUBILEE ROAD, PERINTHALMANNA, MALAPPURAM DISTRICT, PIN-679 322.** **BY ADV. SMT.JENCY MICHEAL** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.04.2019, ALONG WITH Crl.MC.591/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ::2:: Crl.M.C.Nos.3535/2018 & 591/2019 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 09TH DAY OF APRIL 2019 / 19TH CHAITHRA, 1941** **Crl.MC.No. 591 of 2019** **AGAINST THE ORDER/JUDGMENT IN CRA 167/2015 of VI ADDITIONAL DISTRICT COURT, ERNAKULAM** **AGAINST THE ORDER/JUDGMENT IN CC 360/2009 of JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOCHI** **CRIME NO. 595/2009 OF Thoppumpady Police Station , Ernakulam** ## **PETITIONER/S:** **KAREEM, AGED 56 YEARS S/O K.H. ABDU, KUZHIKANDATHIL VEEDU, PULLUPALAM, KOZHI, FORTKOCHI-682001.** **BY ADV. SMT.M.VANAJA** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM.**| |**2**|**SABOORA KAREEM, AGED 50 YEARS**| ||**W/O KAREEM, 22/2517 KUZHIKANDATHIL VEEDU,**| ||**PULLUPALAM, MUNDAMVELI NORTH THOPPUMPADY.**| ||**BY ADV. SMT.P.MAMATHA**| ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR FOR R1** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.04.2019, ALONG WITH Crl.MC.3535/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ::3:: Crl.M.C.Nos.3535/2018 & 591/2019 ## **ALEXANDER THOMAS, J** . ----------------------------Crl.M.C.Nos.3535/2018 & 591/2019 --------------------------------Dated this the 9[th] day of April, 2019. ## **O R D E R** In Crl.M.C.No.3535/2018, the petitioner is the 3[rd] accused in Crime No.223/2009 of Kondotty Police Station. Since the petitioner was a juvenile, the case against him was filed before the Juvenile Justice Board, Malappuram District and was taken on file as C.C.No.15/2010. The above case was registered alleging offences punishable under Secs.341, 323, 324, 326 & 354 r/w Sec.34 of the I.P.C. The case against him was tried and he was convicted thereunder and was released on probation. Against the conviction, the petitioner has preferred Criminal Appeal as Crl.A.No.167/2017 and the same is now pending before that appellate Sessions Court. The case against the other accused was pending before the Judicial First Class Magistrate's Court, Malappuram. While so, the parties have settled the disputes amicably out of court against all the accused and respondents 2 to 5 have sworn to affidavits to the effect that the matter has been settled between the parties and that they do not intend to proceed ::4:: Crl.M.C.Nos.3535/2018 & 591/2019 with the case. Further it is pointed out that the proceedings against the other accused have already been quashed by this Court on the basis of settlement arrived at between the parties. It is thus urged by the petitioner that in view of the abovesaid settlement arrived at between the parties the impugned criminal proceedings referred to in the impugned judgment dated 29.7.2017 of Juvenile Justice Board, Malappuram may be quashed by this Court. 2. In Crl.M.C.No.591/2019, the petitioner therein is the appellant in Criminal Appeal No.167/2015 of the Additional Sessions Court-VI, Ernakulam. The said Criminal Appeal has been filed against the impugned Anx-1 judgment dated 19.3.2015 rendered by the Judicial First Class Magistrate Court-II, Kochi in C.C.No.360/2009, whereby the petitioner herein (accused) has been convicted for the offence under Sec.498A of the I.P.C and has been sentenced to undergo simple imprisonment for 6 months and to pay a fine of Rs.10,000/- and in default of payment of fine, he was sentenced to undergo simple imprisonment for a further period of 3 months and the fine amount so realised was ordered to be released to PW-1 as compensation under Sec.357(1) of the Cr.P.C. It is pointed out that the petitioner herein and the 2[nd] ::5:: Crl.M.C.Nos.3535/2018 & 591/2019 respondent herein are husband and wife and are now living peacefully. That the petitioner was denied the chance of adducing evidence before the Magistrate Court. Since the dispute has been amicably settled, the 2[nd] respondent has sworn to Anx-A3 affidavit dated 11.1.2019 stating that the matter has been amicably settled between the parties and that the impugned criminal proceedings may be quashed, etc. It is also pointed out that the petitionerhusband and 2[nd] respondent-wife (defacto complainant) are now living amicably as spouses and that if the impugned criminal proceedings are upheld, then it will only upset the harmony and peace that has been obtained in the family life of the above spouses. 3. Heard Sri.Sojan Micheal, learned counsel for the petitioner in Crl.M.C.No.3535/2018, Smt.M.Vanaja, learned counsel for the petitioner in Crl.M.C.No.591/2019, Sri.Saigi Jacob Palatty, learned Prosecutor appearing for the respondent-State in both these cases, Smt.Jency Micheal, learned counsel appearing for respondents 2 to 5 in Crl.M.C.No.3535/2018 and Smt.M.Mematha, learned counsel appearing for R-2 in Crl.M.C.No.591/2019. ::6:: Crl.M.C.Nos.3535/2018 & 591/2019 4. The defacto complainant/victim in both these cases would point out on the basis of their respective sworn affidavits filed in both these cases that the matter has been amicably settled between the parties. Further it is also seen that the impugned criminal proceedings as against all the other accused in Crl.M.C.No.3535/2018 had already quashed. It is also seen that the only offence alleged against the petitioner in Crl.M.C.No.591/2019 is the one under Sec.498A of the I.P.C and that now the petitioner-husband and the 2[nd] respondent-wife (defacto complainant) are now living amicably and restored family peace on the basis of the settlement. 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 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 ::7:: Crl.M.C.Nos.3535/2018 & 591/2019 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 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**_ , 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 ::8:: Crl.M.C.Nos.3535/2018 & 591/2019 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 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 ::9:: Crl.M.C.Nos.3535/2018 & 591/2019 the offence. This Court has already acted upon the dictum laid down by the Apex Court in the aforestated celebrated case in the case of all other accused other than the present petitioner as per judgment dated 19.1.2018 in Crl.M.C.No.8911/2017. Accordingly, following the line of directions issued by the Apex Court and this Court in the abovesaid cases, it is ordered as follows: - _(i) In Crl.M.C.No.3535/2018 it is ordered that the impugned criminal proceedings in Crime No.223/2009 of Kondotty Police Station, which later led to the institution of C.C.No.15/2010 on the file of the Juvenile Justice Board, Malappuram and all further proceedings taken in pursuance thereof pending against the present petitioner (accused No.3) will stand set aside. Consequently, it is ordered that the impugned conviction and sentence imposed on the petitioner as per Anx-A1 judgment dated 29.7.2017 of the Juvenile Justice Board, Malappuram in C.C.No.15/2010 will stand set aside. Consequently it is ordered that Crl.A.No.167/2017 on the file of the Sessions Court, Manjeri, will stand closed in the light of the abovesaid directions._ - _(ii) In Crl.M.C.No.519/2019, it is ordered that the impugned criminal proceedings, which arose out of Crime No.595/2009 of Thoppumpady Police Station, which later led to the institution of C.C.No.360/2009 on the file of the Judicial First Class Magistrate Court-II, Kochi and all further proceedings taken in pursuance thereof will stand set aside and quashed. Consequently it is ordered that the impugned conviction and sentence imposed on the petitioner as per Anx-A1 judgment dated 19.3.2015 in C.C.No.360/2009 on the file of the Judicial First Class Magistrate Court-II, Kochi, as against the petitioner herein will stand set aside. Consequently, it is also ordered that Crl.A.No.167/2015 now pending on the file of the Additional Sessions Court-VI, Ernakulam, will stand closed in the light of the abovesaid directions._ ::10:: Crl.M.C.Nos.3535/2018 & 591/2019 The respective petitioners will produce copies of this orders before the respective Investigating Officers concerned, respective trial court concerned and respective appellate Sessions Court concerned for necessary information. With these observations and directions, the above Crl.M.Cs will stand finally disposed of. **Sd/ALEXANDER THOMAS, Judge.** bkn/- ::11:: Crl.M.C.Nos.3535/2018 & 591/2019 ## **APPENDIX OF Crl.MC 3535/2018** **PETITIONER'S/S EXHIBITS:** **ANNEXURE I CERTIFIED COPY OF THE JUDGMENT DATED 29.07.2017 OF THE JUVENILE JUSTICE BOARD, MALAPPURAM.** **ANNEXURE II AFFIDAVIT DATED 31.03.2018 SWORN BY THE 2ND RESPONDENT. ANNEXURE III AFFIDAVIT DATED 31.03.2018 SWORN BY THE 3RD RESPONDENT. ANNEXURE IV AFFIDAVIT DATED 31.03.2018 SWORN BY THE 4TH RESPONDENT. ANNEXURE V AFFIDAVIT DATED 31.03.2018 SWORN BY THE 5TH RESPONDENT.** ## **APPENDIX OF Crl.MC 591/2019** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 THE TRUE PHOTOCOPY OF THE ORDERS PASS IN CC.360/2009 BY JFCM II KOCHI ANNEXURE A2 TRUE PHOTOCOPY OF THE APPEAL MEMORANDUM PENDING BEFORE THE VITH ADDITIONAL DISTRICT AND SESSIONS COURT, ERNAKULAM ANNEXURE A3 TRUE COPY OF THE AFFIDAVIT SUBMITTED BY THE 2ND RESPONDENT DATED 11.1.2019**