Smitha Subash and others v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 30TH DAY OF JANUARY 2017/10TH MAGHA, 1938** ## **Crl.MC.No. 399 of 2017** **-----------------------------------** ## **C.C.NO. 1270/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, THIRUVALLA** **-------------------** **PETITIONER(S)/ACCUSED 1 TO 5 : ---------------------------------------------------** **1. SMITHA SUBASH, SMITHA BHAVAN, METHANAM, CHALAPPALLY MURI, EZHUMATOOR VILLAGE.** **2. VIMAL JOSEPH @ SUNIL, ILAVUNKAL HOUSE, ARINJIKKAL, CHALAPPALLY MURI, EZHUMATTOOR VILLAGE.** **3. AGUSTINE P.JOSEPH, MADURAPLAKKAL HOUSE, ARINJIKKAL, CHALAPPALLY MURI, EZHUMATTOOR VILLAGE.** **4. ABHINAV @ KANNAN, ELIKKUZHA COLONY, EZHUMATTOOR MURI, EZHUMATTOOR VILLAGE.** **5. SAJAN M.K., MADAPPATT THADATHIL HOUSE, IRUMPUKUZHY, EZHUMATTOOR VILLAGE, MALLAPPALLY.** ## **BY ADV. SRI.UNNI. K.K. (EZHUMATTOOR)** **RESPONDENT(S)/STATE & DEFACTO COMPLAINANT & INJURED : -------------------------------------------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **2. PREETHAKUMARY, SMITHA BHAVAN, METHANAM, CHALAPPALLY MURI, EZHUMATOOR VILLAGE - 689 587.** **..2/-** **..2..** **Crl.MC.No. 399 of 2017** **-----------------------------------** **3. HASHISH, KOLLAD HOUSE, KODUNGALLOOR, THEKKUMKARA, THRISSUR, NOW RESIDING AT PUTHUSSERRY HOUSE, KALOOR, ERNAKULAM - 682 017.** **4. SHIBIL ABRAHAM, ATHIKUZHIKKAL HOUSE, KOTTANADU MURI, PERUMPETTY VILLAGE - 689 592.** **R1 BY PUBLIC PROSECUTOR SRI. E.C.BINEESH R2 TO R4 BY ADV. SRI.T.P.PRADEEP** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30-01-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Msd. ## **Crl.MC.No. 399 of 2017** **----------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES :** **ANNEXURE A C.C NO. 1270/2012 ON THE FILES OF JFCM COURT, THIRUVALLA. ANNEXURE B TRUE COPY OF THE AFFIDAVIT OF THE 2ND RESPONDENT. ANNEXURE C TRUE COPY OF THE AFFIDAVIT OF THE 3RD RESPONDENT. ANNEXURE D TRUE COPY OF THE AFFIDAVIT OF THE 4TH RESPONDENT. RESPONDENT(S)' ANNEXURES :** ## **NIL** ## **//TRUE COPY//** **P.A.TO JUDGE** Msd. ## **RAJA VIJAYARAGHAVAN.V., J** - - - - - - - - - - - - - - - - - - - - ## Crl.M.C. No. 399 of 2017 - - - - - - - - - - - - - - - - Dated 30[th] January, 2017 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** - 1.This petition is filed under S.482 of the Code of Criminal Procedure ( hereinafter referred to as 'the Code' ) with a prayer to invoke the extraordinary inherent powers and to quash the pending criminal proceedings. - 2.The petitioners herein are the accused Nos.1 to 5 in C.C.No.1270 of 2012 on the file of the Judicial Magistrate of 1[st] Class, Thiruvalla. The 2[nd] respondent herein, who is the sister of the 1[st] petitioner, is the de facto complainant in the aforesaid case. - 3.The incident occurred on 24.08.2012 and the allegation is that the petitioners herein trespassed into the apartment of the 2[nd] respondent and assaulted her and others with intent to outrage her modesty. It appears that in respect of the same incident on the basis of a rival version, Crime No.507 of 2012 of the Keezhvaypur Police Station was Crl.M.C. No.399 of 2017 -2- also registered against the respondents 2 to 4. 4. It is submitted that in the course of criminal proceedings which were pending before the learned Magistrate, the parties have settled the matter at the instance of the well wishers and mediators. It is submitted that having regard to the settlement arrived at between the parties the continuance of proceedings is clearly an abuse of process. - 5.The respondents have entered appearance through counsel and filed separate affidavits, wherein they have asserted that they settled their disputes and are living in peace and harmony. - 6.The learned Public Prosecutor on instructions submitted that no other cases are reported against the petitioners. - 7.The position with regard to quashing of proceedings on the basis of compromise between the parties is by now well settled. In **Gian singh v. State of Punjab** [(2012) 10 SCC 303] Apex Court has laid down that in appropriate Crl.M.C. No.399 of 2017 -3- cases, the High Court can take note of the amicable resolution of disputes between the victim and the wrongdoer to put an end to the criminal proceedings. It was observed as follows : _“61. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceedings or continuation of criminal proceedings would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceedings.”_ 8.The aforesaid dictum stands reiterated by the Apex Court in **Narinder singh v. State of Punjab. [** (2014) 6 SCC 466], the pertinent observations which are as under: ## _XXXXXXXXXXX_ _29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:_ Crl.M.C. No.399 of 2017 -4- _(i) ends of justice, or_ _(ii) to prevent abuse of the process of any court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives._ _xxxxxxx_ _xxxxxxx_ 9.The offence committed by the petitioners cannot be said to be grave and serious having ingredients of extreme mental depravity. It also does not appear that the offence in this case will have a serious impact on the society. It is felt that quashing of proceedings on account of compromise would bring about peace and secure the ends of justice. Even otherwise, persisting with the prosecution would be nothing but a waste of time as the prospects of conviction would be bleak. 10.Having considered all the relevant circumstances, I am of the considered view that this Court will be well justified in invoking its extra ordinary powers under Section 482 of the Code to quash the proceedings. Crl.M.C. No.399 of 2017 -5- In the result, this petition will stand allowed. AnnexureA final report and all proceedings pursuant thereto against the petitioners now pending as C.C.No.1270 of 2012 on the file of the Judicial Magistrate of 1[st] Class, Thiruvalla are quashed. Sd/- **RAJA VIJAYARAGHAVAN.V., JUDGE** kp/31.1.17