Shajin, Sudheer @ Abbas and Badusha v. State of Kerala and CW1 Nazeer and CW2 Nazeera

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **TUESDAY, THE 20TH DAY OF AUGUST 2013/29TH SRAVANA, 1935** ## **Crl.MC.No. 3486 of 2013 ()** **---------------------------------------** **CC 114/2009 of JUDICIAL FIRST CLASS MAGISTRATE COURT.-I, ATTINGAL CRIME NO. 165/2008 OF POTHENCODE POLICE STATION , THIRUVANANDAPURAM** **---------------** ## **PETITIONERS/A1 TO A3:** ## **-----------------------------------** ## **1. SHAJIN, AGED 34 YEARS,** - **S/O. BADUSHA, SHAJI MANZIL, KAVUVILAKATH, KUNNUPUROM, UDIYARAMOOLA MURIYIL, AYIROOPARA VILLAGE, THIRUVANANTHAPURAM.** **2. SUDHEER @ ABBAS, AGED 32 YEARS,** - **S/O.IBRAHIM KUNJU, SUDHEER MANZIL, KUNNUPUROM, EDATHARAMURIYIL, ANDOORKONAM VILLAGE, THIRUVANANTHAPURAM.** **3. BADUSHA, AGED 58 YEARS,** - **S/O. MEERASAHIB, SHAJIL MANZIL, KAVUVILAKATH, KUNNUPUROM, UDIYARAMOOLA MURIYIL, AYIROOPARA VILLAGE, THIRUVANANTHAPURAM.** ## **BY ADV. SRI.SHAJIN S.HAMEED** ## **RESPONDENTS/STATE. CW1 AND CW2:** **--------------------------------------------------------** **1. THE STATE OF KERALA,** - **REPRESENTED BY THE SUB INSPECTOR OF POLICE, POTHENCODE POLICE STATION, REPRESENTED THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031.** **2. NAZEER, AGED 45 YEARS,** - **(CW1), S/O. ASAM BAVA, KAVUVILAKATHU VEEDU, KUNNUPUROM, UDIYARAMOOLA, AYIROORPPARA VILLAGE, THIRUVANANTHAPURAM, PIN CODE-695584.** **3. NAZEERA, AGED 40 YEARS,** - **(CW2), D/O. SAINABA BEEVI, KAVUVILAKATHU VEEDU, KUNNUPUROM, UDIYARAMOOLA, AYIROORPPARA VILLAGE, THIRUVANANTHAPURAM, PIN CODE-695584.** **R1 BY PUBLIC PROSECUTOR SMT.S.HYMA R2-R3 BY ADV. SRI.R.GOPAN** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20-08-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** **Crl.MC.No. 3486 of 2013 () -------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** ## **ANNEXURE A- CERTIFIED COPY OF FINAL REPORT IN CRIME NO. 165/2008 OF POTHENCODE POLICE STATION.** **ANNEXURE B- NOTARIZED AFFIDAVIT OF THE 2ND RESPONDENT.** **ANNEXURE C- NOTARIZED AFFIDAVIT OF THE 3RD RESPONDENT.** **RESPONDENT(S)' EXHIBITS ---------------------------------------** **NIL.** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **V.K.MOHANAN, J. ---------------------------------------Crl.M.C.No.3486 of 2013** ## **----------------------------------------** Dated this the 20[th] day of August, 2013 ## **O R D E R** 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 in C.C.No.114/2009 of the Judicial First Class Magistrate Court-I, Attingal which is a case instituted upon the police report for the offences punishable under Sections 324, 326 and r/w Section 34 of I.P.C., with a prayer to quash all further proceedings as against the petitioners in Annexure-A final report pending as C.C.No.114/2009 on the file of the Judicial First Class Magistrate Court-I, Attingal as the matter is settled out of court. 2. The allegation in the above case is that due to enmity that CW1 failed to extend the width of pathway through which the accused persons has easement right, on 4/7/2008 at 5.30 p.m., the accused persons with a common intention to cause grievous hurt to CW1, A1 hit CW1 with a iron pipe at his cheek by which he sustained mandible fracture and dislocation to teeth's. When CW1 fell down, A2 using a stick hit CW1 at **Crl.M.C.No.3486 of 2013** 2 his back of body and right leg by which he sustained fracture on patella bone. A3 hit at the head of CW1 with a stick. It is also alleged that on seeing it, CW2 came to the spot. At that instance A3 beat her with a stick. Thus, according to the prosecution, the accused has committed the offences punishable under Sections 324, 326 and r/w Section 34 of I.P.C. Now, the case of the petitioners is that the matter is settled with the second respondent the defacto complainant and the injured, who is the 3[rd] respondent, who respectively sworn into Annexures-B and C affidavit. 3. Heard the learned counsel for the petitioners as well as the second respondent. I have also heard the learned Public Prosecutor. 4. The learned counsel for the petitioners submitted that during the pendency of the above case, the matter is settled amicably between the parties to the dispute 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 the second respondent who on the basis of specific instruction received from the **Crl.M.C.No.3486 of 2013** 3 respondent submitted that the above respondent, who is the de facto complainant does not intend to proceed any further against the petitioners and he has 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. 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. 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 Sections 324, 326 and r/w Section 34 of I.P.C. 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 the second respondent, it appears to me that the de facto complainant has no further grievance against the petitioners accused in the light of the settlement arrived by them. In this **Crl.M.C.No.3486 of 2013** 4 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 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 pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial,mercandile, civil, partnership_ **Crl.M.C.No.3486 of 2013** 5 _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. Thus, 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 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 6 ## **Crl.M.C.No.3486 of 2013** 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-A and all further proceedings pending against the petitioners in C.C.No.114/2009 of the Judicial First Class Magistrate Court-I, Attingal and all further proceedings thereto. **V.K.MOHANAN, JUDGE** AS