Shihab v. State of Kerala and Beena @ Shabeena

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **WEDNESDAY, THE 14TH DAY OF AUGUST 2013/23RD SRAVANA, 1935** ## **Crl.MC.No. 4053 of 2012 ()** **--------------------------CC 671/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ALAPPUZHA --------------------** ## **PETITIONER/ACCUSED:** **----------------------------------** **SHIHAB, AGED 41 YEARS, S/O. IBRAHIM, KUTHIRAKULANGARA VEEDU, VATTAYAL WARD, ALAPPUZHA.** **BY ADVS.SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN SMT.T.J.SEEMA** ## **RESPONDENT/COMPLAINANT & DEFACTO COMPLAINANT :** **--------------------------------------------------------------------------------------** **1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM** **2. BEENA @ SHABEENA AGED 35 YEARS, D/O.USMAN, VELLAPPALLY PURAYIDOM CANAL WARD, ALAPPUZHA.** **R1 BY PUBLIC PROSECUTOR SMT. V.H. JASMINE R2 BY ADV. SRI.P.SHAMMI NAVAS** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14-08-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Mn** **...2/-** ## **Crl.MC.No. 4053 of 2012 ()** ## **APPENDIX** ## **PETITIONERS' EXHIBITS :** |**ANNEXURE-A1 -**|<br>**COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.176**| |---|---| ||**OF 2003 OF SOUTH POLICE STATION, ALAPPUZHA**| |**ANNEXURE-A2 -**|<br>**COPY OF THE FINAL REPORT CRIME NO.176 OF 2003 OF**| ||**SOUTH POLICE STATION, ALAPPUZHA**| |**ANNEXURE-A3 -**|<br>**COPY OF THE JUDGMENT DATED 2-6-2007 IN CC.NO.811 OF**| ||**2003 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE**| ||**COURT-I, ALAPPUZHA.**| |**ANNEXURE-A4 -**|<br>**COPY OF THE AGREEMENT DATED 11-12-2006.**| |**ANNEXURE-A5 -**|<br>**COPY OF THE TALAQNAMA EXECUTED BY THE PETITIONER.**| |**ANNEXURE-A6 -**|<br>**AFFIDAVIT SWORN TO BY THE 2ND RESPONDENT.**| |**RESPONDENTS'**|**EXHIBITS :**<br> **NIL**| **//TRUE COPY//** **P.A. TO JUDGE** ## **Mn** ## **V.K.MOHANAN, J. ---------------------------------------Crl.M.C.No.4053 of 2012** ## **----------------------------------------** Dated this the 14[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 an accused in C.C.No.671/2007 of the Judicial First Class Magistrate Court, Alappuzha which is a case instituted upon the police report for the offences punishable under Sections 498 A r/w Section 34 of I.P.C. with a prayer to quash all further proceedings in C.C.No.671/2007 on the file of the Judicial First Class Magistrate Court-I, Alappuzha emanating from Crime No.176 of 2003 of South Police Station, Alappuzha as the matter is settled out of court. 2. The prosecution allegation is that the first accused married the defacto complainant on 3/6/2000 in accordance with religious ceremony prevailing in the Muslim Community and at the time of marriage an amount of Rs.2 lakhs was accepted by the 1[st] accused as the share of the defacto complainant and while the defacto complainant residing with the accused in her matrimonial home, the accused misappropriated the 65 sovereigns of gold ornaments **Crl.M.C.No.4053 of 2012** 2 belonging to the defacto complainant and the accused subjected the defacto complainant for harassment both mentally and physically demanding more dowry and thus the accused has committed the offences punishable under Section 498 A r/w Section 34 of IPC. According to the petitioner during the pendency of the above case the matter, both criminal and matrimonial are settled amicably with the second respondent, defacto complainant as per Annexure-4 agreement. The second respondent, defacto complainant had sworn into an Annexure-6 affidavit. 3. Heard the learned counsel for the petitioner as well as the second 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 second respondent who on the basis of specific instruction received from the **Crl.M.C.No.4053 of 2012** 3 respondent submitted that the above respondent, who is the de facto complainant does not intend to proceed any further against the petitioner and she 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 offences involved in the above case are only Sections 498 A r/w Section 34 of IPC, 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 petitioner accused in the light of the settlement arrived by them. In this **Crl.M.C.No.4053 of 2012** 4 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 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 noncompoundable 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_ **Crl.M.C.No.4053 of 2012** 5 _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 noncompoundable 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 non-compoundable, 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._ **Crl.M.C.No.4053 of 2012** 6 _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 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 7 ## **Crl.M.C.No.4053 of 2012** 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. In the result, this Crl.M.C. is allowed, quashing all further proceedings pending against the petitioners in C.C.No.671/2007 of the Judicial First Class Magistrate Court, Alappuzha. ## **V.K.MOHANAN, JUDGE** AS