Shamsudeen v. Fathima and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN MONDAY, THE 26TH DAY OF AUGUST 2013/4TH BHADRA, 1935 CRL.MC.NO. 3584 OF 2013 () --------------------------AGAINST C.C.NO. 762 OF 2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KOTHAMANGALAM CRIME NO. 368/2011 OF POTHANIKADU POLICE STATION , ERNAKULAM -------------------------- PETITIONER(S)/ACCUSED : --------------------- SHAMSUDHEEN, AGED 37 YEARS, S/O. EBRAHIM, PULIMOOTTIL HOUSE, ADIVADU KARA, POTHENICADU VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT - 686 671. BY ADV. SRI.P.V.KURIACHAN RESPONDENT(S)/COMPLAINANT AND STATE: ------------------------------------ 1. FATHIMA AGED 25 YEARS, D/O. HASSAINAR, KAROTHUKUZHI HOUSE, ADIVADU KARA, POTHENICADU VILLAGE, KOTHAMANGALAM TALUK ERNAKULAM DISTRICT - 686 671. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM - 682 031. R1 BY ADV. SRI.K.P.RAJEEVAN BY PUBLIC PROSECUTOR SMT. S. HYMA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26-08-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: NS CRL.MC.NO. 3584 OF 2013 () ## APPENDIX PETITIONER(S) ANNEXURES : ANNEXURE A1 : COPY OF THE FIR NO.368 OF 2011 OF POTHANIKADU POLICE STATION. ANNEXURE A2 : COPY OF THE CHARGE IN C.C.NO.762 OF 2011 OF THE JUDICIAL MAGISTRATE FIRST CLASS COURT, KOTHAMANGALAM. ANNEXURE A3 : AFFIDAVIT OF THE DEFACE COMPLAINANT. RESPONDENT(S) ANNEXURES : NIL / TRUE COPY / NS P.A. TO JUDGE ## **V.K.MOHANAN, J.** ## **----------------------------------------** ## **Crl.M.C.No. 3584 of 2013** **----------------------------------------** Dated this the 26[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 petitioner, who is the accused in C.C.No.762 of 2011 of the Judicial First Class Magistrate Court, Kothamangalam which is a case instituted upon the police report in Crime No. 368/2011 of Pothanicadu Police Station for the offence punishable under Section 498A of I.P.C. with a prayer to quash Annexure A1 FIR and Annexure A2 final report in C.C.No.762/2011 in the file of the Judicial First Class Magistrate Court, Kothamangalam as the matter is settled out of court. 2. The allegation in the above case is that the accused married the de facto complainant on 10.4.2008 as per the rites and customs among the Muslim community after receiving rupees one lakh and ten sovereigns of gold ornaments and while the de facto complainant is residing in the house of the petitioner, she was subjected to cruelty and thereby, the Crl.M.C.No. 3584 of 2013 :-2-: accused has committed the offence punishable under Section 498A of I.P.C. It is the further case of the petitioner that while the above case is pending, the entire matter is settled between the petitioner and the first respondent, who is the de facto complainant and they have decided to dissolve the marriage and they are residing separately. The first respondent/de facto complaint has also sworn into Annexure A3 affidavit. 3. Heard the learned counsel for the petitioner as well as the counsel for the first respondent. I have also heard the learned Public Prosecutor. 4. The learned counsel for the petitioner 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 first respondent, who on the basis of specific instruction received from the respondent submitted that the above respondent, who is the de facto complainant does not intend to proceed any Crl.M.C.No. 3584 of 2013 :-3-: further against the petitioner and she 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 offence involved in the above case is only 498A of I.P.C. which is more or less personal in nature and no public interest is involved. It is pertinent to note that though such offence is 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 first respondent, it appears to me that the de facto complainant has no further grievance against the petitioner/accused in the light of the settlement arrived by them. In this juncture, it is relevant to note that the Honourable Apex Court, in the decision reported in **Jitendra Raghuvanshi and Others** v. **Babita Raghuvanshi and** **another** [2013 (1) KLD 817(SC)], has held as follows:- - “7 _. It is not in dispute that matrimonial disputes have been on_ Crl.M.C.No. 3584 of 2013 ## :-4-: _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 non-compoundable 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 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._ _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_ Crl.M.C.No. 3584 of 2013 :-5-: _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.”_ In the present case, the only offence involved is under Section 498A of I.P.C. The criminal proceedings for the said offence originated from the matrimonial issues, which are now settled. Consequently, the parties want a quietus to the criminal case as well. 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, according to me, following the decisions cited supra, this Crl.M.C. can be allowed granting the relief as sought for. Crl.M.C.No. 3584 of 2013 :-6-: In the result, this Crl.M.C. is allowed, quashing Annexure A1 FIR and Annexure A2 final report in C.C.No.762/2011 in the file of the Judicial First Class Magistrate Court, Kothamangalam. **V.K.MOHANAN, Judge** MBS/ ## Crl.M.C.No. 3584 of 2013 :-7-: