Somarai Barkely v. State of Kerala and Punnu Baraik

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN MONDAY, THE 26TH DAY OF AUGUST 2013/4TH BHADRA, 1935 CRL.MC.NO. 3596 OF 2013 () --------------------------- CRIME NO.971/2013 OF KADAVANTHRA POLICE STATION, ERNAKULAM ---------------------------- PETITIONER(S)/ACCUSED : -------------------------- SOMARAI BARKELY,AGED 19 YEARS, S/O.CHARKA, JALPAIKUDY DISTRICT, SULKAPURA P.O., MANGRUPARA VILLAGE WEST BENGAL, PIN 735 225 BY ADV. SRI.P.A.MUJEEB RESPONDENTS/STATE AND DEFACTO COMPLAINANT(S): --------------------------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM,COCHIN-31. 2. PUNNU BARAIK,AGED 41 YEARS, S/O.MANGAL BARAIK, NANKA LINE INDONG, T.G MATIALI, JALPAIGURI DISTRICT, WEST BENGAL STATE, PIN 735223. (NOW RESIDING WITH JOB AS SECURITY OF RS ASSOCIATES THRIPUNITHURA, IN V MART, PALARIVATTOM) R2 BY ADV. SRI.ANVER BASHEER BY PUBLIC PROSECUTOR SMT. S. HYMA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26-08-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: NS CRL.MC.NO. 3596 OF 2013 () --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- ANNEXURE 1 : COPY OF THE FIR IN CRIME NO.971/2013 OF KADAVANTHARA POLICE STATION, ERNAKULAM DISTRICT. ANNEXURE 2 : AFFIDAVIT DATED 19.08.2013 SWORN BY THE DEFACTO COMPLAINANT/2ND RESPONDENT. RESPONDENT(S)' EXHIBITS : NIL ------------------------- / TRUE COPY / NS P.A. TO JUDGE ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.M.C.No. 3596 of 2013** **----------------------------------------** Dated this the 26[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 accused in Crime No. 971/2013 of Kadavanthra Police Station, Ernakulam District for the offence punishable under Section 325 of I.P.C. with a prayer to quash all proceedings in pursuance of Annexure A1 FIR in Crime No.971/2013 of the Kadavanthra Police Station, Ernakulam District as the matter is settled out of court. 2. The allegation in the above case is that on 5.9.2012 at about 9.30 p.m. the accused, due to the previous enmity towards the de facto complainant, kicked to the abdomen of the de facto complainant and and caused injury to the left side of his heart and thereby, committed the offence punishable under Section 325 of I.P.C. and now, the case of the petitioner is that the matter is settled out of court. The second respondent/de facto complainant had sworn into Crl.M.C.No.3596 of 2013 :-2-: Annexure A2 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 crime, the matter is settled amicably between the parties to the dispute which is the subject matter of the above crime. Therefore, the continuation of the proceedings in the above crime 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 respondent, submitted that the above respondent, who is the de facto complainant does not intend to proceed any further against the petitioner and he 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 Crl.M.C.No.3596 of 2013 :-3-: 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 offence involved in the above case is only Section 325 of I.P.C. which is more or less personal in nature and no public interest is involved. It is pertinent to note that though such offence is 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 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_ Crl.M.C.No.3596 of 2013 :-4-: _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 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 prosecution resulting the conviction of the accused, rather the net result would be sheer waste of judicial time and abuse of process Crl.M.C.No.3596 of 2013 :-5-: 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 all proceedings in pursuance of Annexure A1 FIR in Crime No.971/2013 of the Kadavanthra Police Station, Ernakulam District. **V.K.MOHANAN, Judge.** MBS/ Crl.M.C.No.3596 of 2013 :-6-: