Shihabudeen, Anwar and Shanavas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **FRIDAY, THE 26TH DAY OF JULY 2013/4TH SRAVANA, 1935** ## **Crl.MC.No. 3114 of 2013** ## **---------------------------** ## **CC 601/2013 of JUDICIAL FIRST CLASS MAGISTRATE COURT,KOLENCHERRY** ## **PETITIONERS/ACCUSD NOS. 1 TO 3:** ## **1. SHIHABUDEEN AGED 28 YEARS** **S/O MUHAMMED, AIMANAKKUDY HOUSE, KAVUNGAPARAMBU BHAGAM, CHELAKKULAM KARA, PATTIMATTOM VILLAGE.** ## **2. ANWAR AGED 27 YEARS** **S/O MUHAMMED, AIMANAKKUDY HOUSE, KAVUNGAPARAMBU BHAGAM, CHELAKKULAM KARA, PATTIMATTOM VILLAGE.** ## **3. SHANAVAS @ SHANU AGED 30 YEARS** **S/O BASHEER, THAZHATHUMARIL HOUSE, KARAKKUNNU BHAGAM MULAVOOR KARA, MULAVOOR VILLAGE.** **BY ADV. SRI.JAISON JOSEPH** ## **RESPONDNETS/STATE AND CW1/DE-FACTO COMPLAINANT AND CW2:** ## **1. STATE OF KERALA** - **REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM REPRESENTING SUB INSPECTOR OF POLICE KUNNATHUNADU POLICE STATION.** ## **2. NASAR, AGED 41 YEARS** - **S/O MUHAMMED, PARAKKUNNATH HOUSE KAVUNGAPARAMBU BHAGAM, CHELAKKULAM KARA KIZHAKKAMBALAM PANCHAYATH, PATTIMATTOM VILLAGE.** ## **3. KABEER, AGED 40 YEARS** **S/O SAIDU MUHAMMED, PARAKKUNNATH HOUSE KAVUNGAPARAMBU BHAGAM, CHELAKKULAM KARA KIZHAKKAMBALAM PANCHAYATH, PATTIMATTOM VILLAGE.** **R2& 3 BY ADV. SMT.J.SHEEBA MARIAM R1 BY PUBLIC PROSECUTOR MR. RAJESH VIJAYAN** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 3114 of 2013** **---------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **-------------------------------------** **ANNEXURE 1: CERTIFIED COPY OF THE FINAL REPORT (CHARGE SHEET) IN C.C.NO.601 OF 2013 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT KOLENCHERRY.** **ANNEXURE 2: AFFIDAVIT FILED BY THE RESPONDENT NO.2** ## **ANNEXURE 3: AFFIDAVIT FILED BY RESPONDENT NO.3.** **ANNEXURE 4: JOINT STATEMENT FILED BY PETITIONERS AND RESPONDENT NOS. 2 AND 3.** **RESPONDENT'S EXHIBITS** **NIL** **ks.** ## **TRUE COPY** ## **P.S.TO JUDGE** ## **V.K.MOHANAN, J. ---------------------------------------Crl.M.C.No. 3114 of 2013** **----------------------------------------** Dated this the 26[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 petitioners, who are accused in C.C.No.601/2013 of the Judicial First Class Magistrate Court, Kolencherry which is a case instituted upon the police report for the offences punishable under Sections 341, 323, 324 r/w Section 34 of I.P.C., with a prayer to quash Annexure A1 charge sheet and all proceedings in C.C.No.601/2013 of the Judicial First Class Magistrate Court, Kolencherry, as the dispute is settled out of Court. 2. The prosecution case is that, on 20/2/2013 at 12.30 p.m. petitioners herein restrained and fisted and beat respondent No.2/CW1 and on seeing the incident when respondent No.3/CW2 tried to obstruct the petitioner, they beat and fisted CW2 on several parts of body and petitioner No.1 took a stone and thrown it on the chest of respondent No.3/CW2 and thereby the petitioners committed the aforesaid offence. The motive alleged by the prosecution is that daughter of respondent No.2/CW1 was married to Anwar S/o. **Crl.M.C.No. 3114 of 2013** 2 Abdulkhadar, Aymanakkudy House, and a case was registered at the instance of daughter of CW1 and when the petitioners demanded to go out from the house, CW1 and his daughter remained at the house and thereby committed the aforesaid offences. Thus, according to the prosecution the petitioners who are accused Nos.1 to 3 has committed offences punishable under Sections 341, 323, 324 r/w Section 34 of I.P.C. Now, the case of the petitioner is that the dispute has been settled between the petitioners and the second respondent, who is the defacto complainant and the 3[rd] respondent who is the injured, who filed Annexures A2 and A3 affidavit respectively. 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. **Crl.M.C.No. 3114 of 2013** 3 5. The learned counsel for the second 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 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 341, 323, 324 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 **Crl.M.C.No. 3114 of 2013** 4 complainant has no further grievance against the petitioners 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 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_ **Crl.M.C.No. 3114 of 2013** 5 _stand on different footing for the purposes of quashing, particularly the offences 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. 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 6 ## **Crl.M.C.No. 3114 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-A1 and all further proceedings pending against the petitioners in C.C.No.601/2013 of the Judicial First Class Magistrate Court, Kolencherry and all further proceedings thereto. ## **V.K.MOHANAN, JUDGE** AS