Raheem v. State of Kerala and Muneera

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN WEDNESDAY, THE 1ST DAY OF OCTOBER 2014/9TH ASWINA, 1936 Crl.Rev.Pet.No. 1698 of 2014 () -------------------------------AGAINST THE JUDGMENT IN CRA 198/2013 of I ADDL.DISTRICT & SESSIONS COURT, KOZHIKODE AGAINST THE ORDER IN CC 194/2008 of J.M.F.C.,VADAKARA ## REVISION PETITIONER(S): ------------------- RAHEEM, aged 41 , S/O. UMMER, THURKEENTAVIDA HOUSE, IRINGAL AMSOM, KOTTAKKAL, PAYYOLI, KJOYILANDY TALUK, KOZHIKODE DISTRICT ## BY ADV. SRI.R.BINDU (SASTHAMANGALAM) RESPONDENT(S): - ------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031 2. MUNEERA, AGED 36, D/O. USMAN, KALATHIL VEEDU, CHOMBALA, VADAKARA, KOZHIKODE DISTRICT PIN - 673 101 R2 BY ADV. SRI.G.RAJAGOPAL (KUMMANAM) BY PUBLIC PROSECUTOR SMT. R. REMA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01-10-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## V.K. MOHANAN, J. ---------------------------- ## Crl.R.P. No. 1698 of 2014 ------------------------------ Dated this the Ist day of October, 2014 ## ORDER Petitioner who is the first accused in Crime No. 84 of 2008 of Edachery Police Station, preferred this Revision Petition, challenging his conviction and sentence for offences punishable under Sections 498 A and 406 read with Sec. 149 of IPC. 2. The prosecution allegation is that the marriage between the de facto complainant and the petitioner was solemnized on 4-11-1994 as per the religious rites and while they were residing together, all the accused (Accused Nos. 1 to 5) , on different occasions, harassed the de facto complainant physically as well as mentally demanding more gold ornaments and cash and they misappropriated an amount of Rs. 1,10,000/- and 24 ½ sovereign of gold ornaments belonging to the de facto 2 Crl.R.P. No. 1698 of 2014 complainant. On 12-01-2008, the 1[st] accused came to the house of the de facto complainant and beat her demanding dowry. Thus, according to the prosecution, accused have committed the aforesaid offences. 3. The police, after investigation in Crime No. 84/2008 of Edachery Police Station, laid charge for the aforesaid offences upon which the learned Magistrate took cognizance and instituted C.C. No. 194/2008 and trial was proceeded during which P.Ws 1 to 6 were examined and Exts. P1 to P4 were marked. No evidence, whatsoever, was adduced from the side of the defence. By judgment dated 27-3-2013 in C.C. No. 194/2008, the learned Magistrate, except the first accused/petitioner, all other accused were found not guilty and accordingly, A2 to A5 in the above case were acquitted. Whereas the petitioner, who is the first accused, was found guilty under Sec. 498 A of IPC and accordingly, he is sentenced to undergo rigorous imprisonment for three months and to pay a fine of Rs. 5,000/-. The above order of conviction and sentence was unsuccessfully challenged by the Crl.R.P. No. 1698 of 2014 3 petitioner before the lower appellate court and by judgment dated 4-6-2014 in Crl.A. 198/2013 the learned Sessions Judge, Kozhikode, dismissed the appeal confirming the conviction and sentence. It is against the above judgment of the court below, the petitioner who is the first accused in the above case preferred this Revision Petition. 4. Heard the learned counsel for the petitioner, Sri. Bindu Sasthamangalam, the learned counsel appearing for the 2[nd] respondent and the learned Public Prosecutor. 5. Both the accused appearing for the petitioner as well as the 2[nd] respondent submitted that during the pendency of the above referred appeal, the entire dispute between the petitioner and the 2[nd] respondent who is the wife of the petitioner is settled and as such the 2[nd] respondent has no surviving grievance against the petitioner and she does not propose to prosecute the matter any further against the petitioner. In the light of the settlement so arrived at between the parties, a petition under Sec. 482 of Cr.P.C. (Crl.M.A. No. 6184 of 2014) has already been filed and both the Crl.R.P. No. 1698 of 2014 4 counsel for the petitioner as well as the 2[nd] respondent submitted that the entire dispute between them is settled. 6. In the light of the submission made by the learned counsel for the petitioner and the 2[nd] respondent, I have carefully perused Annexure – I affidavit wherein it is stated that the respondent/wife has no further grievance against the petitioner who already by pronouncing talaq on 11-10-2013, divorced her and she has no objection in quashing the criminal proceedings pending against the petitioner. 7. A Division Bench of this Court in the decision reported in **Thankamani and Others v. State of Kerala – 2006 (3) KLT 846** has held that the High Court cannot exercise the powers under Section 397 Cr.P.C., so as to compound a noncompoundable offence under Sec. 320 Cr.P.C., but in appropriate cases, the courts could exercise its inherent powers under Section 482 of Cr.P.C to save the institution of marriage. If that be so, according to me, the above petition filed under Section 482 Cr.P.C can be entertained in the above Revision Petition and in view of Crl.R.P. No. 1698 of 2014 5 the settlement arrived at, the whole criminal proceedings, including the judgment of the trial Court as well as the appellate Court can be quashed. 8. In this juncture, it is relevant to note the decisions of the Honourable Apex Court reported in **Gian Singh** v. **State of Punjab** [2012(4) KLT 108(SC)] and **Jitendra Raghuvanshi and Others** v. **Babita Raghuvanshi and another** [2013 (1) KLD 817 (SC)]. In Gian Singh's case, the Supreme Court has held as follows:- _“57. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding 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 it 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 F.I.R. may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed.._ ## It is further held as follows:- “...... _... But the criminal cases having overwhelmingly and predominatingly 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_ Crl.R.P. No. 1698 of 2014 6 _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........”_ ## Further, in **Jitendra Raghuvanshi's case,** the Apex Court has held as follows:- “7 _. It is not in dispute that matrimonial disputes have been on considerable increase in recent times resulting in filing of complaints under Sections 498A and 406 of I.P.C. not only against the husband but also against the relatives of the husband. The question is when such matters are resolved either by the wife agreeing to rejoin the matrimonial home or by mutual settlement of other pending disputes for which both the sides approached the High Court and jointly prayed for quashing of the criminal proceedings or the FIR or complaint by the wife under Sections 498A and 406 of I.P.C., whether the prayer can be declined on the sole ground that since the offences are non-compoundable under Section 320 of the Code, it would be impermissible for the court to quash the criminal proceedings or FIR or complaint._ _8. It is not in dispute that in the case on hand subsequent to the filing of the criminal complaint under Sections 498A and 406 of IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961, with the help and intervention of family members, friends and well-wishers, the parties concerned have amicably settled their differences and executed a compromise/settlement. Pursuant thereto, the appellants filed the said compromise before the Trial Court with a request to place the same on record and to drop the criminal proceedings against the appellants herein. It is also not in dispute that in additional to the mutual settlement arrived at by the parties, respondent/-wife has also filed an affidavit stating that she did not wish to pursue the criminal proceedings against the appellants and fully supported the contents of the settlement deed. It is the grievance of the appellants that no only the Trial Court rejected such prayer of the parties but also the High Court failed toe exercise its jurisdiction under Section 482 of the Code only on the ground that the criminal proceedings relate to the offences punishable under Sections 498A and 406 of IPC which are noncompoundable in nature.”_ _“12. In our view, it is the duty of the Courts to encourage genuine settlements of matrimonial disputes, particularly, when the same are on considerable increase. Even if the offences are_ Crl.R.P. No. 1698 of 2014 7 _non-compoundable, if they relate to matrimonial disputes and the Court is satisfied that the parties have settled the same amicably and without any pressure, we hold that for the purpose of securing ends of justice, Section 320 of the Code would not be a bar to the exercise of power of quashing of FIR, complaint or the subsequent criminal proceedings._ _13. There has been an outburst of matrimonial disputes in recent times. The institution of marriage occupies an important place and it has an important role to play in the society. Therefore, every effort should be made in the interest of the individuals in order to enable them to settle down in life and live peacefully. If the parties ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a Court of law, in order to do complete justice in the matrimonial matters, the Courts should be less hesitant in exercising its extraordinary jurisdiction. It is trite to state that the power under Section 482 should be exercised sparingly and with circumspection only when the Court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of the process of the Court or that the ends of justice require that the proceedings ought to be quashed.”_ Considering the particular facts and circumstances in this case, it can be seen further that the criminal proceedings are initiated consequent to the matrimonial dispute arose among the parties and both the disputes are now amicably settled between the parties. According to me, in the light of the facts and circumstances involved in the present case, and particularly in view of the settlement arrived in the present case, the dictum laid in the above decisions will be squarely applicable in the present case. Hence, I am of the view that as the parties to the dispute settled the issues amicably, it is the duty of this Court to promote such settlement, Crl.R.P. No. 1698 of 2014 8 instead of compelling the parties to go on with the dispute. It is pertinent to note that since the matter is settled out of court, in the event of proceeding with the trial, there would not have any fruitful prosecution, resulting the conviction of the accused, rather the net result would be sheer waste of judicial time and abuse of process of the court and proceedings. 9. According to me, in the light of the facts and circumstances involved in the present case, and particularly, in view of the settlement arrived in the present case, the dictum laid in the above decision will be squarely applicable in the present case. According to me, as the parties to the dispute settled the issues amicably, it is the duty of this Court to promote such settlement, instead of compelling the parties to go on with the dispute. It is pertinent to note that since the matter is settled out of court, in the event of proceeding with the trial, there would not have any fruitful prosecution resulting the conviction of the accused, rather the net result would be sheer waste of judicial time and abuse of process of the court and proceedings. Thus, Crl.R.P. No. 1698 of 2014 9 according to me, following the decisions cited supra, this Crl.R.P. can be allowed granting the relief as sought for. In the result, Crl.M.A. No. 6184 of 2014 is allowed and consequently the Crl.R.P. is allowed setting aside the judgment passed by the JFCM, Vadakara in C.C. No. 194/2008 dated 27-32014 as confirmed by the Ist Addl.Sessions Judge, Kozhikode in Crl.Appeal No. 198 of 2013 dated 4-6-2014 and also quashing all further proceedings pending against the petitioner in Crime No. 84 of 2008 of Edachery Police Station . Dated this the 1[st] day of October, 2014. ## **Sd/-V.K.MOHANAN, JUDGE.** ## **Ani** **/true copy/** ## **P.S. To Judge**