Shihab P.A v. State of Kerala and Bushra

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE GOPINATH P. ``` ``` MONDAY, THE 4[TH] DAY OF DECEMBER 2023 / 13TH AGRAHAYANA, 1945 ``` ## **`CRL.MC NO. 6197 OF 2022`** ``` CRIME NO.825/2012 OF CHERPU POLICE STATION, THRISSUR ``` ``` IN CC 4088/2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,THRISSUR ``` ## **`PETITIONER/ACCUSED:`** ``` SHIHAB P.A AGED 45 YEARS, S/O ABDUL RAHIMAN RESIDING AT PALAKKAL HOUSE, ICHAMUDI P.O., THRISSUR TALUK, THRISSUR DISTRICT, PIN – 680 564. ``` ``` BY ADVS. NIRMAL V NAIR M.ANEESH MUHAMMED NASEEF BIN SALIM ARATHI PRABHAKARAN ``` ## **`RESPONDENTS/STATE AND DEFACTO COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682 031. ``` ``` 2BUSHRA AGED 35 YEARS, D/O K ABDULLA, MAMMASRAYILLATH KALLAYIL HOUSE, THIRUVATRA DESOM, THIRUVATRA P.O., MANATHALA VILLAGE, CHAVAKKAD TALUK, THRISSUR, PIN – 680 516. ``` ``` BY ADV SRI NOUSHAD K.A. (SR PP) ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04.12.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` Crl.M.C. NO.6197 OF 2022 2 ``` ## **ORDER** Petitioner is the accused in Crime No.825/2012 of Cherpu Police Station, Thrissur District, alleging commission of offences under Sections 323 and 498A of the Indian Penal Code. The matter is now pending as C.C.No.4088/2012 on the file of the Judicial First Class Magistrate Court-I, Thrissur. 2. Learned counsel appearing for the petitioner would submit that disputes between the petitioner and the 2[nd] respondent/defacto complainant were settled in mediation when proceedings were pending before the Family Court, Thrissur. It is submitted that clause (5) of Annexure-3 mediation agreement which was recorded by the Family Court through Annexure-4 order includes the provision for withdrawal of all criminal cases including the matter which is pending as C.C.No.4088/2012 before the Judicial First Class Magistrate Court-I, Thrissur. It is submitted that the decisions of the Supreme Court in **Ruchi Agarwal v. Amit Kumar Agarwal and Others; 2005 (3) SCC 299** and in **Mohd.Shamim and Others v. Nahid Begum and Another; 2005 (3) SCC 302** and the decision of this Court in **Thomas** ## `Crl.M.C. NO.6197 OF 2022 3` ## **and Another v. State of Kerala and Another; 2016 KHC** **206,** are authorities for the proposition that, when a criminal case has been registered on account of matrimonial disputes between parties, and matrimonial relationship and entire disputes between them are settled before the Family Court in mediation and the mediation agreement itself contains a clause for withdrawal from criminal proceedings, the proceedings cannot be permitted to go on against the petitioner(s). 3. Learned Senior Public Prosecutor opposes the grant of relief. He submits that a statement was recorded from the defacto complainant/victim and she has clearly stated that she does not wish to withdraw from the prosecution and the prosecution against the petitioner should continue before the competent criminal court. 4. Despite service of notice there is no appearance for the 2[nd] respondent. 5. Having heard the learned counsel for the petitioner and the learned Senior Public Prosecutor, I am of the opinion that the petitioner is entitled to succeed. In **Ruchi Agarwal (Supra)** , the Supreme Court was considering an almost similar situation where a compromise was arrived before the Family ## `Crl.M.C. NO.6197 OF 2022 4` Court at Nainital. The Supreme Court after considering the question as to whether the criminal proceedings could be continued, held as follows: “ **8.** Learned counsel appearing for the appellant, however, contended that though the appellant had signed the compromise deed with the above mentioned terms in it, the same was obtained by the respondent-husband and his family under threat and coercion and in fact she did not receive lump sum maintenance and her Stridhan properties. We find it extremely difficult to accept this argument in the background of the fact that pursuant to the compromise deed the respondent-husband has given her a consent divorce which she wanted, thus had performed his part of the obligation under the compromise deed. Even the appellant partially performed her part of the obligations by withdrawing her criminal complaint filed under Section 125. It is true that she had made a complaint in writing to the Family Court where Section 125 Cr.P.C. proceedings were pending that the compromise deed was filed under coercion but she withdrew the same and gave a statement before the said court affirming the terms of the compromise which statement was recorded by the Family Court and the proceedings were dropped and a divorce was obtained. Therefore, we are of the opinion that the appellant having received the relief she wanted without contest on the basis of the terms of the compromise, we cannot now accept the argument of the learned counsel for the appellant. In our opinion, the conduct of the appellant ## `Crl.M.C. NO.6197 OF 2022 5` indicates that the criminal complaint from which this appeal arises was filed by the wife only to harass the respondents. **9.** In view of the above said subsequent events and the conduct of the appellant, it would be an abuse of the process of the court if the criminal proceedings from which this appeal arises is allowed to continue. Therefore, we are of the considered opinion to do complete justice, we should while dismissing this appeal also quash proceedings arising from the Criminal Case No.Cr.No.224/2003 registered in Police Station, Bilaspur, (District Rampur) filed under Sections 498A, 323 and 506 IPC and under Sections 3 and 4 of the Dowry Prohibition Act against the respondents herein. It is ordered accordingly. The appeal is disposed of”. In **Mohd.Shamim and Others (Supra)** , the Supreme Court was considering a case where during the hearing of an application for anticipatory bail, which was registered alleging commission of offences under Section 406, 498 A r/w Section 34 of the Indian Penal Code, the parties had entered into an agreement and all issues between the parties had been settled in terms of that agreement. That was also a case where the wife had objected the quashing of proceedings and insisted that the proceedings be carried to its logical conclusion. In paragraph No.12 of the judgment the Supreme Court held as ## `Crl.M.C. NO.6197 OF 2022 6` ## follows: “ **12.** In view of the fact that the settlement was arrived at the intervention of a judicial officer of the rank of the Additional Sessions Judge, we are of the opinion, the contention of the first respondent herein to the effect that she was not aware of the contents thereof and the said agreement as also the affidavits which were got signed by her by misrepresentation of facts must be rejected. In the facts and circumstances of this case, we have no doubt in our mind that the denial of execution of the said deed of settlement is an afterthought on the part of the Respondent No.1 herein”. ## In paragraph No.16 of the very same judgment, it was held : “ **16.** In view of the conduct of the first respondent in entering into the aforementioned settlement, the continuance of the criminal proceeding pending against the appellants, in our opinion, in this case also, would be an abuse of the process of the court. The Appellant No.1, however, would be entitled to withdraw the sum of Rs.50,000/- which has been deposited in the court. We, therefore, in exercise of our jurisdiction under Article 142 of the Constitution of India direct that the impugned judgment be set aside. The First Information Report lodged against the appellants is quashed. The appeal is allowed. However, this order should not be treated as a precedent”. ## In **Thomas and Another (Supra)** also this Court was ``` Crl.M.C. NO.6197 OF 2022 7 ``` concerned with a case where all disputes had been settled in the Lok Adalath and settlement agreement had also been executed. After referring to **Mohd.Shamim and Others** ## **(Supra)** and **Ruchi Agarwal (Supra)** , this Court held : “ **13.** Here, in this particular case also a settlement has been arrived at between the parties and the consequent award passed by the Lok Adalath has come into effect and a substantial portion of it has been complied with. In that particular context, the 2[nd] respondent cannot be permitted to backtrack from the settlement and to proceed with the prosecution against the petitioners”. Applying the principles laid down in the aforesaid judgments and considering the terms of Annexure-3 mediation agreement, I am of the view that the continuance of proceedings against the petitioner in C.C.No.4088/2012 on the file of the Judicial First Class Magistrate Court-I, Thrissur, amounts to an abuse of process of Court. Clause (5) of Annexure-3 reads as follows: " M.C No. 510/2012, ബഹുമാനപ്പെട്ടകോടതിയിൽനിലവിലുള്ള M.C.No.579/2012 എന്നിവ ഉടനെ പിൻവലിക്കാനും എതിർകക്ഷിയുടെ വഹകളിന്മേലുള്ളജപ്തിനടപടികൾമേൽപ്രസ്താവിച്ച സഖ്യകളും സ്വർണ്ണവും നൽകി ഇടപാട് തീർക്കുന്ന സമയം . മോചനം പിൻവലിക്കാമെന്നുംഹർജിക്കാരിസമ്മതിക്കുന്നു വിവാഹമ ## `Crl.M.C. NO.6197 OF 2022 8` നടക്കുന്ന മുറക നിലവിലുള്ള ക്രിമിനൽ കേസുകളും പിൻവലിക്കാനും ” . സമ്മതിച്ചു In the light of the categorical agreement in Annexure-3, I am of the view that this case is also covered by the decisions of the Supreme Court and that of this Court referred to above. Accordingly, this Crl.M.C. is allowed and all further proceedings in C.C.No.4088/2012 on the file of the Judicial First Class Magistrate Court-I, Thrissur (arising out of Crime No.825/2012 of Cherpu Police Station, Thrissur District), will stand quashed as against the petitioner. **Sd/GOPINATH P. JUDGE** ats ``` Crl.M.C. NO.6197 OF 2022 9 ``` ## **`APPENDIX OF CRL.MC 6197/2022`** ``` PETITIONER’S ANNEXURES ``` - `Annexure 1 A TRUE COPY OF THE FIR DATED 9-9-2012 IN CRIME NO. 825/2012 OF THE CHERPU POLICE STATION` - `Annexure 2 THE CERTIFIED COPY OF THE FINAL REPORT DATED 31-10-2012 IN CRIME NO. 825/2012 OF THE CHERPU POLICE STATION` - `Annexure 3 A TRUE COPY OF THE MEDIATION AGREEMENT DATED` - `06-12-2013 EXECUTED BY THE PETITIONER AND THE 2ND RESPONDENT` - `Annexure 4 A TRUE COPY OF THE JUDGMENT AND DECREE DATED 22-1-2014 IN O.P. NO. 1616/2012 ON THE FILES OF THE FAMILY COURT, THRISSUR` - `Annexure 5 A TRUE COPY OF THE AGREEMENT DATED 19-9-2015 SIGNED BETWEEN THE MOTHERS OF THE PETITIONER AND THE 2ND RESPONDENT` - `Annexure 6 A TRUE COPY OF THE NOTICE DATED 25-4-2023 ISSUED BY THE ATTACHE (CONSULAR), EMBASSY OF INDIA, BAHRAIN TO THE PETITIONER` - `Annexure 7 A TRUE COPY OF THE ORDER DATED 17-5-2023 ISSUED BY THE SECOND SECRETARY (CONSULAR), EMBASSY OF INDIA, BAHRAIN`