Shamsudheen Faisy v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** ## **THURSDAY, THE 18TH DAY OF JULY 2013/27TH ASHADHA, 1935** ## **Crl.MC.No. 2915 of 2013 ()** **--------------------------SC.NO.95/2012 OF SESSIONS COURT, KASARAGODE ----------------** ## **PETITIONERS/ACCUSED :** **--------------------------------------** **SHAMSUDHEEN FAISY, S/O.MAMMU, DARUL HUDA (H), OZHINJA VALAPPU HOSDURG, KASARGODE.** **BY ADV. SRI.K.P.MUJEEB** ## **RESPONDENTS/COMPLAINANT & STATE :** **-------------------------------------------------------------** ## **1. A.ABDUL VAHAB MOULAVI,** **S/O.ABDUL KAREEM MOULAVI, KAKKADAVU HOUSE CHEEMENI VILLAGE, HOSDURG TALUK, P.O.PEETIKUNDU KASARAGODE.** ## **2. STATE OF KERALA,** **REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.S.MOHAMMED AL RAFI R2 BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Mn** **...2/-** **Crl.MC.No. 2915 of 2013 () -------------------------------------** ## **APPENDIX** |**PETITIONERS' ANNEXURES :**| |---| |**-------------------------------------------**| |**ANNEXURE A**<br>**CERTIFIED COPY OF THE FIR IN CRIME NO.436/11 OF**| |**CHANDERA POLICE STATION.**| |**ANNEXURE B**<br>**TRUE COPY OF THE CHARGE UNDER SECTION 377 IPC DATED**| |**17-6-2011.**| |**ANNEXURE C**<br>**ORIGINAL OF THE AFFIDAVIT SWORN BY THE IST**| |**RESPONDENT.**| |**RESPONDENTS' EXHIBITS : NIL**| |**------------------------------------------------------**| **//TRUE COPY//** **P.S. TO JUDGE** ## **Mn** ## **V.K.MOHANAN, J.** ## **------------------------------Crl.M.C.No.2915 of 2013 ------------------------------Dated this the 18[th] day of July, 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 S.C.No.95/12 of the Sessions Court-Kasaragode, which is a case instituted upon the police report [in Crime No. 436/11 of Chandera Police Station] for the offences punishable under Section 377 of I.P.C. with a prayer to quash Annexure A FIR and Annexure B final report in the above crime, as the matter is settled out of court. 2. The allegation in the above case is that on 17.5.2011 at 2 p.m. as well as on 20.5.2011 at 10.30 p.m., the petitioner sexually molested the minor son aged 14 years of the 1[st] respondent at the room of the petitioner, while the petitioner was working as a teacher in the 2 ## **Crl.M.C.No.2915 of 2013** Madrassa at Kaikottakadavu and thereby the minor son aged 14, namely Ubaidulla, was subjected to unnatural offence and now, the case of the petitioner is that the matter is settled out of court, as evident from Annexure C affidavit sworn in by the 1[st] respondent/de facto complainant. 3. Heard the learned counsel for the petitioner as well as the 1[st] 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 1[st] respondent who on the basis of specific instruction received from the respondent submitted that the above respondent, who is the 3 ## **Crl.M.C.No.2915 of 2013** de facto complainant does not intend to proceed any further against the petitioner and he has no grievance against him. 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 under Section 377 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 1[st] respondent, it appears to me that the de facto complainant has no further 4 **Crl.M.C.No.2915 of 2013** grievance against the petitioner/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 Gian Singh's 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 5 **Crl.M.C.No.2915 of 2013** 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. 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 6 ## **Crl.M.C.No.2915 of 2013** 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-A and all further proceedings pending against the petitioner in S.C.No.95/2012 of Sessions Court, Kasaragod, in Crime No.436/11 of Chandera Police Station. Sd/- **V.K.MOHANAN, Judge** ami/ //True copy// P.A. to Judge