Saifudheen v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **TUESDAY, THE 14TH DAY OF OCTOBER 2014/22ND ASWINA, 1936** ## **Crl.MC.No. 5611 of 2014 ()** **--------------------------CC 297/2013 of JUDICIAL FIRST CLASS MAGISTRATE -II,PERINTHALMANNA -------------** **PETITIONER/ACCUSED :** **-------------------------------** **SAIFUDHEEN, AGED 28 YEARS, S/O.SULAIMAN, KALALTHIL HOUSE, MANHAPATTA, ELANKOOR, MALAPPURAM DISTRICT** **BY ADV. SRI.U.K.DEVIDAS** ## **RESPONDENTS/DEFACTO COMPLAINANT & STATE :** **--------------------------------------------------------------------------** ## **1. STATE OF KERALA** - **REPRESENTED BY THE S.I OF POLICE, MANKADA THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** **2. RAIHANATH, D/O.HAMZA KONGASSERY HOUSE, CHOORAKKODE, VALLAPUZHA P.O., PATTAMBI VIA, OTTAPALAM TALUK, PALAKKAD DISTRICT 679 336** **3. RAHMATH, D/O.ALIHASSA, AGED 20 YEARS, ANCHEERITHODI HOUSE, MULAYANKAVU, KULUKALLOOR VILLAGE, OTTAPALAM TALUK, PALAKKAD DISTRICT 679337** **R1 BY PUBLIC PROSECUTOR SRI. DHANESH MATHEW MANJOORAN R2 & R3 BY ADV. SMT.LIJI KUTTAPPAN** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14-10-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **bp** **Crl.MC.No. 5611 of 2014 () ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-------------------------------------** **ANNX.I : TRUE COPY OF THE FIR IN MANKADA POLICE STATION CRIME NO.89 OF 2013 DATED 4-3-2013. ANNX.II: TRUE COPY OF THE RELEVANT PAGES OF THE CHARGE SHEET IN MANKADA POLICE STATION CRIME NO.89 OF 2013 DATED 22-3-2014. ANNX.III: TRUE COPY OF THE CMP NO.4424 OF 2014 TO RECALL THE WITNESSES AND RE OPEN THE EVIDENCE DATED 16-9-2014. ANNX.IV: TRUE COPY OF THE CMP NO.4425 OF 2014 TO RECALL THE WITNESSES AND RE OPEN THE EVIDENCE DATED 16-9-2014. ANNX.V: ORIGINAL OF THE AFFIDAVIT DATED 27-09-2014 SWORN BY THE 2ND RESPONDENT. ANNX.VI: ORIGINAL OF THE AFFIDAVIT DATED 27-09-2014 SWORN BY THE 3RD RESPONDENT RESPONDENT(S)' EXHIBITS : NIL. ---------------------------------------** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **bp** ## **ALEXANDER THOMAS, J. ========================= Crl.M.C No.5611 of 2014 ============================ Dated this the 14[th] day of October, 2014** ## **ORDER** The above Criminal Miscellaneous Case (Crl.M.C.) has been filed with the prayer to quash Annexure I final report/charge sheet, Annexure II final report and all further proceedings against the petitioner, now pending before the Judicial First Class Magistrate Court - II, Perinthalmanna, as C.C.No. 297 of 2013. The petitioner is the accused in C.C.No.297 of 2013 on the file of the Judicial First Class Magistrate Court - II, Perinthalmanna for offences alleged under Sections 324, 341 and 354 of Indian Penal Code. The case is registered upon a complaint filed by the 2[nd] respondent before the Mankada Police and registered as Crime No.89 of 2013 at that Police Station as per Annexure I FIR. R2 is the injured and R3 is the eye witness. 2. The brief of the prosecution case is that the petitioner is a teacher and 2[nd] and 3[rd] respondents are students in Anvarul Islam Arabic College, Tirurkkad. On 02.03.2013 between 10:15 a.m and 11 a.m, the accused had beaten the 2[nd] respondent with a stick and dragged him in front of the boys and pulled out from Crl.M.C No.5611 of 2014 2 class room on the reason that he was absent in the special class conducted on 01.03.2013. Final report/charge sheet was filed in this matter as per Annexure II and the case is pending as C.C No.297 of 2013 before the Judicial First Class Magistrate Court - II, Perinthalmanna. The accused had entered appearance and released on bail. R2 and R3 were examined as PW1 and PW2 respectively in the above case. Subsequently, the difference of opinion between the petitioner and the contesting respondents was resolved through mediation and two applications for recalling the witnesses and reopening the evidence as per Annexures III and investigation were dismissed by the learned Magistrate. In view of the settlement, 2[nd] and 3[rd] respondents are not in any way interested in prosecuting the case against the petitioner and Annexures V and VI affidavits have been sworn to by 2[nd] and 3[rd] respondents to that effect. In the said affidavit, it is stated by the contesting respondents that the matter has been settled and that they are not interested to go ahead with the prosecution in any manner. It is in the background of these facts and circumstances that the aforementioned Crl.M.C has been filed. Crl.M.C No.5611 of 2014 3 3. The Crl.M.C. has been admitted and Smt.Liji Kuttappan has taken notice for the 2[nd] and 3[rd] respondents and the learned Public Prosecutor has taken notice for the 1[st] respondent-State of Kerala. 4. Heard Sri.U.K.Devidas, the learned counsel appearing for the petitioner, Smt.Liji Kuttappan learned counsel appearing for 2[nd] and 3[rd] respondents and the learned Public Prosecutor appearing for the 1[st] respondent-State of Kearla. 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. Smt.Liji Kuttappan, the learned counsel appearing for the 2[nd] and 3[rd] respondents has submitted on the basis of the Crl.M.C No.5611 of 2014 4 specific instructions furnished by the 2[nd] and 3[rd] respondents that the 2[nd] and 3[rd] respondents have amicably settled the disputes with the petitioner and that they have no objection in the quashment of the impugned criminal proceedings and that the complainants/victim/injured does not intend to proceed any further against the petitioner as they have no grievance against him and that they 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 Crl.M.C No.5611 of 2014 5 by the learned counsel for the 2[nd] and 3[rd] respondents, it is clear to the court that the injured/victim/defacto complainants have 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 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 Crl.M.C No.5611 of 2014 6 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 the decision reported in the case **Yogendra Yadav &** ## **others v. The State of Jharkhand & another** reported in 2014 (8) Scale 634 = III (2014) Current Criminal Reports CCR 426 (SC), the Apex Court has held as follows: “When the High Court is convinced that the offences are entirely personal in nature and, therefore, do not affect public peace or tranquility and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, it should not hesitate to quash them”. The Apex Court in the above case was dealing with a case involving offences under Sections 341, 323, 324, 504 & 307 r/w Section 34 Indian Penal Code. 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 the disputes have been settled amicably between Crl.M.C No.5611 of 2014 7 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 prayers sought for. Crl.M.C No.5611 of 2014 8 In the result, the Crl.M.C. is allowed and the impugned Annexure II final report/charge sheet and all further proceedings taken thereon pending against the petitioner in C.C.No.297 of 2013 on the file of the Judicial First Class Magistrate Court II, Perinthalmanna arising out of Crime No.89 of 2013 of Mankada Police Station are quashed. The petitioner shall produce certified copies of this order before the court below concerned as well as before the Station House Officer, Mankada Police Station. Sd/- **ALEXANDER THOMAS, JUDGE.** Vdv //True Copy// P.A to Judge