Saidalavi, Ashik and P.V. Basheer v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **MONDAY, THE 5TH DAY OF AUGUST 2013/14TH SRAVANA, 1935** ## **Crl.MC.No. 3212 of 2013 ()** **-------------------------------------** **AGAINST THE ORDER IN CP 26/2013 of J.M.F.C.,PARAPPANANGADI CRIME NO. 68/2013 OF TANUR POLICE STATION , MALAPPURAM** **---------------** ## **PETITIONER/ACCUSED NO.1 TO 3::** **---------------------------------------------------** **1. SAIDALAVI, S/O.AVARANKUTTY, AGED 45 YEARS, APPADA HOUSE, ERANALLUR, OZHUR, MALAPPURAM DISTRICT.** **2. ASHIK, S/O.KUNHIMOHAMMED, AGED 27 YEARS, APPADA HOUSE, ERANALLUR, OZHUR, MALAPPURAM DISTRICT.** **3. P.V.BASHEER, S/O.MARAKKAR, PUTHANVEETTIL HOUSE, ERANALLUR, OZHUR, MALAPPURAM DISTRICT.** **BY ADV. SMT.LIJI KUTTAPPAN** ## **RESPONDENTS/COMPLAINANT/STATE:** **---------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, TANUR POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **2. KUNHALANKUTTY, S/O.MOIDEENKUTTY, AGED 32 YEARS, APPADA HOUSE, ERANALLUR, OZHUR, MALAPPURAM DISTRICT-676313.** **3. SIRAJ, AGED 24 YEARS, S/O.KUNHIMOHAMMED, APPADA HOUSE, ERANALLUR, OZHUR, MALAPPURAM DISTRICT-676313.** **4. KUNHAMMU @ KUNHIMOHAMMED,, AGED 59 YEARS S/O.KUNHALANKUTTY, APPADA HOUSE, ERANALLUR, OZHUR, MALAPPURAM DISTRICT-676313.** **R1 BY PUBLIC PROSECUTOR SMT.S. HYMA R2-R4 BY ADV. SRI.U.K.DEVIDAS** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05-08-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** ## **Crl.MC.No. 3212 of 2013 ()** ## **------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES** **------------------------------------------** **ANNEXURE-I: CERTIFIED COPY OF THE F.I.R. IN CRIME NO.68 OF 2013 OF TANUR POLICE STATION.** **ANNEXURE-II: COPY OF THE CHARGE SHEET RECEIVED BY THE PETITIONERS FROM THE JUDICIAL FIRST CLASS MAGISTRATE, PARAPPANANGADI IN C.P.NO.26 OF 2013.** **ANNEXURE-III: ORIGINAL OF THE AFFIDAVIT SWORN BY THE RESPONDENTS NO.2 TO 4 DATED 23.7.2013.** **RESPONDENT(S)' ANNEXURES** **--------------------------------------------** **NIL.** **/ TRUE COPY /** ## **P.S. TO JUDGE** **PJ** ## **V.K.MOHANAN, J. ---------------------------------Crl.M.C.No.3212 of 2013 -----------------------------------Dated this the 05[th] day of August, 2013** ## **ORDER** The above petition is filed under Section 482 of the Criminal Procedure Code (for short 'Cr.P.C.') at the instance of the petitioners, who are accused Nos.1 to 3 in C.P.No.26 of 2013 on the file of the Judicial First Class Magistrate Court, Parappanangadi which is a case instituted upon the police report in Crime No.68 of 2013 of Tanur Police Station for the offences punishable under Sections 341, 323, 324, 326 & 308 read with Section 34 of IPC with a prayer to quash Annexure-I F.I.R. in Crime No.68 of 2013 of Tanur Police Station and all further proceedings pending against the petitioners in C.P.No.26 of 2013 on the file of the Judicial First Class Magistrate Court, Parappanangadi as the matter is settled out of court. 2. The prosecution allegation is that, at about 4.30 p.m. on 24/1/2013 at the road in front of a Cement shop namely Bright Agency, accused 1 to 3 due to their prior animosity, connected with the property dispute against the de facto Crl.M.C.No.3212 of 2013 :-2-: complainant and with intention to inflict injuries, the injured was attacked with sickle and beat him with an iron pipe and when the first accused attempted to beat CW.1 with iron pipe, he prevented the same with his right hand and thus the blow fallen on his right elbow and as a result of which, he sustained fracture injury and had the blow was not prevented death would have been resulted and thus the accused has committed the offences punishable under Sections 341, 323, 324, 326 & 308 read with Section 34 of IPC. According to the petitioners, after the incident and while the matter is pending before the court below, the above dispute is settled between the petitioners and respondent Nos.2 to 4, who are the de facto complainant and the injured. As the affidavit produced as Annexure-III is improper and as directed by this Court, three separate affidavits are seen produced by the petitioners by memo dated 05/08/2013 which is marked as AnnexureIII(1) to (3). 3. Heard the learned counsel for the petitioners as well as respondents 2 to 4. I have also heard the learned Public Prosecutor. Crl.M.C.No.3212 of 2013 :-3-: 4. The learned counsel for the petitioners submitted that, during the pendency of the above case, the dispute is settled amicably between the parties which is the subject matter of the above case. Therefore, the continuation of the proceedings in the above case is abuse of process of law and proceedings. 5. The learned counsel for respondents 2 to 4 who on the basis of specific instruction received from the respondents submitted that the above respondents, who are the de facto complainant and the injured do not intend to proceed any further against the petitioners and they have no grievance against them. 6. I have carefully considered the above submissions of the respective counsel. I have verified the documents and materials produced along with the above petition including Annexure-III affidavit. In the given facts and circumstances of the case and especially in the light of the settlement arrived between the parties to the dispute, the learned Public Prosecutor has also no objection in allowing the above petition. Crl.M.C.No.3212 of 2013 :-4-: 7. Having regard to the facts and circumstances involved in the case, it can be seen that the offences involved in the above case are only under Sections 341, 323, 324, 326 & 308 read with Section 34 of IPC which are more or less personal in nature and no public interest is involved. It is pertinent to note that though such offences are involved, the real parties to the dispute approached this Court after having amicably settled the matter. From the submission made by the counsel for respondents, it appears to me that the injured and the de facto complainant have no further grievance against the petitioners/accused in the light of the settlement arrived by them. In this juncture, it is relevant to note the decision of the Honourable Apex Court reported in **Gian Singh** v. **State of Punjab** [2012(4) KLT 108(SC)] in which 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 ## Crl.M.C.No.3212 of 2013 ## :-5-: 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,mercandile, 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........” 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 is applicable in the present case. Crl.M.C.No.3212 of 2013 :-6-: According to me, as the parties to the dispute settled the issues amicably, it is the duty of this Court to promote and encourage 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, according to me, following the decisions cited supra, this Criminal M.C. can be allowed granting the relief as sought for. In the result, this Crl.M.C. is allowed, quashing Annexure-I F.I.R. in Crime No.68 of 2013 of Tanur Police Station and all further proceedings pending against the petitioners in C.P.No.26 of 2013 on the file of the Judicial First Class Magistrate Court, Parappanangadi. ## **V.K.MOHANAN, JUDGE** skj True copy P.A. to Judge