Shihabudheen M v. State of Kerala and Fathima R

``` 2025:KER:23118 ``` **==> picture [57 x 58] intentionally omitted <==** # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN ``` ``` MONDAY, THE 17[TH] DAY OF MARCH 2025 / 26TH PHALGUNA, 1946 ``` ``` CRL.MC NO. 1462 OF 2025 ``` ``` CRIME NO.573/2022 OF BEKAL POLICE STATION, KASARGOD ``` ``` IN CC NO.1859 OF 2022 OF JUDICIAL MAGISTRATE OF FIRST CLASS-II, ``` ## **`HOSDRUG`** ## **`PETITIONER/ACCUSED:`** ``` 1SHIHABUDHEEN.M AGED 35 YEARS S/O MUHAMMED, V.P ROAD, SOUTH CHITHARI, CHITHARI VILLAGE, HOSDURG TALUK, KASARAGOD, PIN - 671316 ``` ``` BY ADVS. A.ARUNKUMAR S.SHYAM KUMAR SACHIN GEORGE ARAMBAN NESILI NAZEER ``` ## **`RESPONDENTS/STATE & DEFACTO COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` 2FATHIMA.R AGED 21 YEARS D/O.ABDULRAZAK, BISMILLA MANZIL, PERIYATTADUKKAM, PANAYAL VILLAGE, HOSDURG TALUK, KASARAGOD, PIN - 671318 ``` ``` BY ADVS. SRI.E.C.BINEESH, PUBLIC PROSECUTOR SRI.VIPIN T JOSE FOR R2 ``` ``` Crl.M.C.No.1462 of 2025 ``` ``` 2025:KER:23118 ``` **==> picture [57 x 58] intentionally omitted <==** - 2 - ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17.03.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` Crl.M.C.No.1462 of 2025 ``` ``` 2025:KER:23118 ``` - 3 - **==> picture [57 x 58] intentionally omitted <==** ``` C. JAYACHANDRAN, J. ------------------------------------ Crl.M.C.No.1462 of 2025 ------------------------------------ Dated, this the 17[th] day of March, 2025 ``` ## **`ORDER`** ``` B.S.Joshi and Others v. State of Haryana and another [(2003) 4 SCC 675] held that the offence under Section 498A can be quashed by the High Court exercising its inherent power under Section 482 Cr.P.C (now Section 528 of BNSS, 2023), though such offence is not compoundable under Section 320. Relying on State of Karnataka v. L. Muniswamy [(1977) 2 SCC 699], a two Judges Bench in B.S. Joshi (Supra) held that ends of justice are higher than ends of mere law, though justice has got to be administered according to laws made by legislature. The fact that there is no reasonable likelihood of conviction, in the wake of settlement between the parties, was taken stock of. The following findings in B.S.Joshi (supra) are relevant and extracted here below: ``` ``` “What would happen to the trial of the case where the wife does not support the imputations made in the FIR of the type in question. As earlier noticed, now she has filed an affidavit that the ``` ``` Crl.M.C.No.1462 of 2025 ``` ``` 2025:KER:23118 ``` - 4 - **==> picture [57 x 58] intentionally omitted <==** ``` FIR was registered at her instance due to temperamental differences and implied imputations. There may be many reasons for not supporting the imputations. It may be either for the reason that she has resolved disputes with her husband and his other family members and as a result thereof she has again started living with her husband, with whom she earlier had differences or she has willingly parted company and is living happily on her own or has married someone else on the earlier marriage having been dissolved by divorce on consent of parties or fails to support the prosecution on some other similar grounds. In such eventuality, there would almost be no chance of conviction. Would it then be proper to decline to exercise power of quashing on the ground that it would be permitting the parties to compound non- compoundable offences? The answer clearly has to be in the "negative". It would, however, be a different matter if the High Court on facts declines the prayer for quashing for any valid reasons including lack of bona fides.” ``` ``` 2.The dictum laid down in B.S.Joshi (supra) was doubted along with that laid down in other cases and referred to and considered by a three Judges Bench of the Hon'ble Supreme Court in Gian Singh v. State of Punjab and another [(2012) 10 SCC 303]. B.S.Joshi (supra), along with other cases, were confirmed by the Supreme Court. It is relevant to note that ``` ``` Crl.M.C.No.1462 of 2025 ``` ``` 2025:KER:23118 ``` **==> picture [57 x 58] intentionally omitted <==** **==> picture [24 x 8] intentionally omitted <==** ``` the subject matter inB.S.Joshi (supra) was specifically with reference to the offences under Section 498A and 406 of the Indian Penal Code. ``` ``` 3.In the facts at hand, petitioner is the sole accused in Crime No.573/2022 of Bekal Police Station, Kasargod, now pending as C.C.No.1859/2022 before the Judicial First Class Magistrate Court-II, Hosdurg. As per the final report, the offence alleged are under Section 498A of the Indian Penal Code. The petitioner seeks quashment of entire proceedings in the above Calendar Case, on the strength of the settlement arrived at by and between the parties. ``` ``` 4.Heard the learned counsel for the petitioner, learned counsel for the defacto complainant/2[nd] respondent and the learned Public Prosecutor. Perused the records. ``` ``` 5.When this Crl.M.C was moved, this Court directed to record the statement of the defacto complainant. The said direction was complied and the statement was handed over. On perusal of the same, it is clear that the issues between the petitioner and the defacto complainant are settled amicably. ``` ``` Crl.M.C.No.1462 of 2025 ``` ``` 2025:KER:23118 ``` **==> picture [57 x 58] intentionally omitted <==** - 6 - ``` Furthermore, the defacto complainant is now remarried and living peacefully, wherefore she is disinterested continue with the proceedings against the petitioner, any further. The defacto complainant has no objection quashing the criminal proceedings against the petitioner. That apart, it is noticed that, along with this Crl.M.C, an affidavit has been sworn to by the defacto complainant (2 respondent herein) as Annexure-AIII, wherein she would unequivocally state that the disputes have been settled and that she does not intend to proceed with the case against the petitioner, any further. The defacto complainant would also swear that she has no further grievance against the petitioner and has no objection in quashing the proceedings against the petitioner. The affidavit is sworn to on her own volition, without any compulsion, whatsoever. This Court, is therefore, convinced that the settlement arrived at is genuine and bonafide. Learned Counsel for the defacto complainant/2[nd] respondent would also endorse that the quashment sought for can be allowed. ``` ``` 6.In the light of the above referred facts, this Court is of the opinion that the necessary parameters, as culled out ``` **==> picture [57 x 58] intentionally omitted <==** ``` Crl.M.C.No.1462 of 20252025:KER:23118 ``` - 7 - ``` inB.S.Joshi (supra) andGian Singh (Supra), are fully satisfied. This Court is convinced that further proceedings against the petitioner will be a futile exercise, inasmuch as the disputes have already been settled. There is little possibility of any conviction in the crime.Dehors the settlement arrived at by and between the parties, if they are compelled to face the criminal proceedings, the same, in the estimation of this Court, will amount to abuse of process of Court. The quashment sought for would secure the ends of justice. ``` ``` In the circumstances, this Crl.M.C. is allowed. Annexure-II Final Report in Crime No.573/2022 and all further proceedings in C.C.No.1859/2022 of the Judicial First Class Magistrate Court-II, Hosdurg, are hereby quashed. ``` ## **`Sd/-`** ## **`C. JAYACHANDRAN`** ## **`JUDGE`** ``` SKP ``` ``` Crl.M.C.No.1462 of 2025 ``` ``` 2025:KER:23118 ``` - 8 - **==> picture [57 x 58] intentionally omitted <==** ## **`APPENDIX OF CRL.MC 1462/2025`** ## **`PETITIONER’S ANNEXURES:`** ``` ANNEXURE AIA TRUE COPY OF THE F.I.R IN CRIME NO. 573 OF 2022 OF BEKAL POLICE STATION, KASARAGOD ANNEXURE AIICERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 573 OF 2022 OF BEKAL POLICE STATION, KASARAGOD ANNEXURE AIIITHE AFFIDAVIT SWORN TO BY THE 2ND RESPONDENT DATED 23.01.2025 ``` ## **`RESPONDENTS' ANNEXURES: NIL`** ## **`TRUE COPY`** ``` P.A. TO JUDGE ```