Robin Mathew Kollamchirayil v. State of Kerala and Betsy Emilda Babu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 5TH DAY OF NOVEMBER 2014/14TH KARTHIKA, 1936** **Crl.MC.No. 6234 of 2014 () ---------------------------** **AGAINST THE ORDER IN Crl.MC 4244/2014 of HIGH COURT OF KERALA DATED 30-07-2014 CRIME NO. 298/2014 OF VALIYAMALA POLICE STATION , THIRUVANANDAPURAM** **PETITIONER(S): --------------** **ROBIN MATHEW KOLLAMCHIRAYIL, CHUNGATHARA P.O., NILAMBUR MALAPPURAM DISTRICT.** **BY ADV. SRI.A.AHZAR** **RESPONDENT(S):** **---------------** **1. STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, MUSEUM THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM-682031.** **2. BETSY EMILDA BABU** - **D/O MARY EMILDA BABU, R/AT BETHEL HOUSE, T.C.33/432-1 VETTUCAUD, THIRUVANANTHAPURAM-695001.** **R2 BY ADV. SRI.NAVEEN.T R1 BY PUBLIC PROSECUTOR SRI.GITHESH** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 6234 of 2014 () ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **------------------------** **ANNEXURE AI : TRUE COPY OF THE CHARGE SHEET IN CRIME NO.298/2014 OF VALIYATHUR POLICE STATION. ANNEXURE AII : TRUE COPY OF THE AFFIDAVIT BY 2ND RESPONDENT DATED 11.8.2014. ANNEXURE AIII : TRUE COPY OF THE ORDER IN CRL.MC NO.4244/2014 DATED 30.7.2014.** ## **RESPONDENT(S)' EXHIBITS NIL** **//TRUE COPY//** **P.A TO JUDGE** **vdv** ## ALEXANDER THOMAS, J. ========================= Crl.M.C No.6234 of 2014 ============================ Dated this the 5[th] day of November, 2014 ## ORDER The petitioner is the accused in Crime No.298 of 2014 of Valiyathura Police Station, Thiruvananthapuram district for offences alleged under Sections 406, 417, 418, 420 and 494 of the Indian Penal Code. The 2[nd] respondent herein is the de facto complainant in this case. 2. The allegation in brief is that the petitioner had married another lady by name Tinu Asha Joseph, after his marriage with the 2[nd] respondent herein and thereby he had committed the aforementioned offences. The petitioner claims that he is innocent and not guilty of any offence as put forward by the prosecution and that subsequently the entire issues between the petitioner and the 2[nd] respondent and also between the family members have been amicably settled. 3. It is stated that the marriage between the petitioner and the 2[nd] respondent was solemnized on 12.04.2012 as per Christian customary rites at St.Mary's Catholic Church, Dubai, United Arab Crl.M.C No.6234 of 2014 2 Emirates. The allegation is that the petitioner subsequently married another lady (Tinu Asha Joseph) at Thiruvananthapuram on 23.02.2013 and accordingly, the 2[nd] respondent filed complaint against the petitioner, which led to the registration of Crime No.298 of 2014 of Valiyathura Police Station, Thiruvananthapuram. The Police after investigation submitted the impugned Annexure A1 final report/charge sheet in the above said impugned Crime No.298 of 2014 of Valiyathura Police Station, Thiruvananthapuram. It is further stated that thereafter the 2[nd] respondent had filed O.P No.569 of 2014 before the Family Court concerned under Section 18 and 19(4) of the Indian Divorce Act for declaring the marriage between the parties as null and void. It is stated that the above said Tinu Asha Joseph had initiated criminal proceedings against the petitioner alleging that the petitioner herein had earlier married the 2[nd] respondent herein on 12.04.2012 as stated above and that while the said marriage between them was subsisting, the petitioner later married the said Tinu Asha Joseph on 23.02.2013 at Thiruvananthapuram and that the petitioner has thereby committed the offence punishable under Section 420 and 494 of Indian Penal Crl.M.C No.6234 of 2014 3 Code and this led to the registration of Crime No.390 of 2014 of Museum Police Station, Thiruvananthapuram in which the petitioner herein was the accused and the said Tinu Asha Joseph was the de facto complainant therein. The said disputes between the petitioner herein and Tinu Asha Joseph were stated to be fully and amicably settled and the marriage between the petitioner herein and Tinu Asha Joseph was dissolved as per the decree passed by the Family Court, Ernakulam in O.P No.801 of 2014. Further the said Tinu Asha Joseph filed affidavit before this Court in Crl.M.C No.4244 of 2014 (referred to in Annexure A3) whereby she stated that she has no objection in quashing the Crime No.390 of 2014 of Museum Police Station in which she is the de facto complainant as the matters have been settled and as their marriage has been dissolved and that as the entire disputes have been settled between them through mediation, the impugned Crime No.390 of 2014 was prayed to be quashed. Accordingly, this Court as per order dated 30.07.2014 in Crl.M.C No.4244 of 2014 (produced as Annexure A3 herein), quashed Crime No.390 of 2014 of Museum Police Station, Thiruvananthapuram in which the petitioner herein was the accused Crl.M.C No.6234 of 2014 4 and Tinu Asha Joseph was the de facto complainant therein. 4. It is further stated that later the disputes between the petitioner herein and the 2[nd] respondent herein were also finally and fully settled amicably through the intervention of mediators and the 2[nd] respondent has sworn to affidavit dated 11.08.2014 before this Court produced as Annexure A2 in this Crl.M.C wherein she has stated the above aspects and it is further stated that the marriage between the petitioner herein and Tinu Asha Joseph had been dissolved by a decree passed by the Family Court Ernakulam in O.P No.801 of 2014 and that the Crime No.390 of 2014 in which the petitioner herein is the accused and Tinu Asha Joseph is the de facto complainant therein, has been quashed as per Annexure AIII order dated 30.07.2014 passed by this Court in Crl.M.C No.4244 of 2014. It is further stated by the 2[nd] respondent herein in Annexure AII that she has also withdrawn the divorce petition filed by her in O.P No.569 of 2014 filed before the Family Court, Thiruvananthapuram against the petitioner herein and that she has no objection in quashing the impugned proceedings arising out of the impugned Annexure AI final report/charge filed in the impugned Crime No.298 Crl.M.C No.6234 of 2014 5 of 2014 of Valiyathura Police Station, Thiruvananthapuram against the petitioner. That since the entire disputes between the petitioner and 2[nd] respondent has been amicably settled, in the interest of justice, all further proceedings in the impugned Calendar Case, C.C No.225 of 2014 pending before the Chief Judicial Magistrate Court, Thiruvananthapuram, arising out of the impugned AI final report/charge sheet may be quashed. It is in the light of these facts and circumstances that the instant Crl.M.C has been filed before this Court seeking the prayer to quash the impugned Annexure AI final report/charge sheet filed in the impugned Crime No. 298 of 2014 of Valiyathura Police Station, Thiruvananthapuram, which has led to the pendency of the C.C No.225 of 2014 on the file of the Chief Judicial Magistrate Court, Thiruvananthapuram and all further proceedings arising therefrom. 5. The Crl.M.C. has been admitted and Sri.Naveen.T has taken notice for the 2[nd] respondent and the learned Public Prosecutor has taken notice for the 1[st] respondent-State of Kerala. 4. Heard Sri.Ahzar.A, the learned counsel appearing for the petitioner, Sri.Naveen.T, learned counsel appearing for 2[nd] Crl.M.C No.6234 of 2014 6 respondent, and the learned Public Prosecutor appearing for the 1[st] respondent-State of Kerala. 5. The learned counsel for the petitioner has submitted that during the pendency of the aforementioned criminal proceedings, the matter has been settled amicably between the parties, which is resulted in the subject matter of the aforementioned crime/case and that the continuation of the proceedings in the above case/crime will cause miscarriage of justice to both parties as the real disputants to the case have arrived at an amicable settlement and any further continuation of the criminal proceedings will amount to sheer wastage of time and money and would unnecessarily strain the financial, administrative and financial resources of the State. 6. Sri.Naveen.T, the learned counsel appearing for the 2[nd] respondent has submitted on the basis of the specific instructions furnished by the 2[nd] respondent that the 2[nd] respondent has amicably settled the disputes with the petitioner and that she has no objection in the quashment of the impugned criminal proceedings and that the complainant/victim/injured does not intend to proceed any further against the petitioner as she has no grievance against Crl.M.C No.6234 of 2014 7 him and that she will not raise any dispute/compliant in future if the prayer for quashing the impugned final report is allowed. 7. The learned Public Prosecutor also was heard, who also has not raised any serious objections and submitted that this court may consider the prayer in this case in the light of the law well settled by the Apex Court in that regard. 8. After having carefully considered the submissions of the parties and after having perused the pleadings as well as the documents and materials placed in this matter, it can be seen that the offences alleged are more or less personal in nature and not much element of public interest is involved. The crucial aspect of the matter is that though such offences are involved, the real disputants to the controversy which has led to the impugned criminal proceedings, have actually arrived at an amicable settlement of the matter. From the submissions made by the learned counsel for the 2[nd] respondent, it is clear to the court that the injured/victim/defacto complainant has no further grievance against the petitioner/accused in the light of the settlement arrived at by them. In this connection, it is relevant to note the decision of Crl.M.C No.6234 of 2014 8 the Apex Court in the case between Gian Singh v. State of Punjab reported in 2013 (1) SCC (Cri) 160, para 61 = (2012) 10 SCC 303 = 2012(4) KLT 108(SC), wherein the Supreme Court has held as follows in para 61 thereof [ See SCC (Cri)]: “61. 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 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 Crl.M.C No.6234 of 2014 9 with the victim........” Further, in the case **Jitendra Raghuvanshi and Others** v. **Babita Raghuvanshi and another** reported in (2013) 4 SCC 58 [see 2013 (1) KLD 817 (SC)], the Apex Court has held as follows:- “8. 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. 9. 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 Crl.M.C No.6234 of 2014 10 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 non-compoundable in nature. 15. 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 noncompoundable, 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. 16. 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.” 9. Considering the facts and circumstances of this case, it is seen further that the impugned criminal proceedings have arisen consequent to the personal disputes between the disputants and Crl.M.C No.6234 of 2014 11 the disputes have been settled amicably between the parties. Accordingly, this Court is inclined to hold that in the light of the facts and circumstances involved in the present case and particularly in view of the settlement arrived at between the parties, the principles laid down in the aforementioned decisions of the Apex Court will be squarely applicable in the present case. Moreover, since the real disputants to the controversy have amicably settled the disputes, which led to these impugned criminal proceedings, it is also the duty of the court to promote such settlement, instead of compelling the parties to go on with the dispute. It is also pertinent to note that since the matter is settled out of court, in the event of proceeding with the trial, there may not be any fruitful prosecution and the chances of conviction of the accused is rather negligible and therefore, the net result of continuance of criminal proceedings would be sheer waste of judicial time rather meaningless and therefore would amount to abuse of the process of court proceedings in the larger sense. Hence following decisions of the Apex Court cited supra, this Court is inclined to hold that the Crl.M.C. can be allowed by granting the Crl.M.C No.6234 of 2014 12 prayers sought for. In the result, the Crl.M.C. is allowed and it is ordered in the interest of justice that the impugned Annexure AI final report/charge sheet filed in the impugned Crime No.298 of 2014 of Valiyathura Police Station, Thiruvananthapuram, which has led to the pendency of C.C No.225 of 2014 on the file of Chief Judicial Magistrate Court, Thiruvananthapuram and all further proceedings arising therefrom stands quashed. The petitioner shall produce certified copies of this order before the court below concerned as well as before the Station House Officer, Valiyathura Police Station, Thiruvananthapuram. Sd/- **ALEXANDER THOMAS, JUDGE** vdv //True Copy// P.A to Judge