Sudheesh Kumar v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 3[RD] DAY OF JANUARY 2024 / 13TH POUSHA, 1945 ``` ## **`CRL.MC NO. 5243 OF 2023`** ``` AGAINST CRL.A 284/2018 OF THE SESSIONS COURT,KOZHIKODE ``` ## **`CC 290/2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,KOYILANDY`** ## **`PETITIONER:`** ``` SUDHEESH KUMAR, AGED 42 YEARS S/O. NEELAKANDAN, SUDHEESH NIVAS, THIYYETH PADAM, PERUMUGHAM, KALLUMPARA, KOZHIKODE DISTRICT, PIN - 673328 BY ADV K.P.SUDHEER ``` ## **`RESPONDENTS:`** - `1 STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN - 682031` - `2 STATION HOUSE OFFICER ELATHUR POLICE STATION, ELATHUR, KOZHIKODE DISTRICT, PIN - 673303` - `3 KRISHMA KRISHNAN C.K AGED 36 YEARS D/O. KRISHNAN (LATE), KAYYATTAYIL THAZHE HOUSE, MAKKADA ASMOM, KOZHIKODE DISTRICT,, PIN - 673611` ## `SRI.G.SUDHEER-PUBLIC PROSECUTOR` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03.01.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ## K.BABU, J ------------------------------------------------- Crl.M.C.No.5243 of 2023 -------------------------------------------------- ## Dated this the 3[rd] day of January, 2024 ## O R D E R The petitioner seeks to quash the conviction and sentence passed by the Judicial First Class Magistrate Court, Koyilandy in C.C.No.290/2012 which arose out of Crime No.350/2011 of Elathur Police Station. The matter is now pending as Crl.A No.284/2018 on the file of the Sessions Court, Kozhikode. 2. The prosecution case is as follows: The petitioner/accused No.1 married respondent No.3 on 19.4.2009 in accordance with their religious rites and customs. They lived together as husband and wife in the matrimonial home. The petitioner and the other accused ill-treated respondent No.3 demanding dowry. They also misappropriated the assets of respondent No.3. 3. The Trial Court convicted the petitioner under Sections 498A and 406 of IPC. The other accused were acquitted. The Trial Court sentenced the petitioner to undergo simple imprisonment for a period of six months and to pay a fine of Rs.1000/- each under Sections 498A and Crl.M.C.No.5243 of 2023 3 406 of IPC. 4. The petitioner challenged the judgment of the Trial Court in Crl.A No.284/2018 before the Sessions Court, Kozhikode. The petitioner challenges the conviction and sentence on the ground that they have amicably settled the disputes. 5. Heard both sides. 6. Respondent No.3 entered appearance through a counsel and filed an affidavit stating that the entire disputes between them has been settled. She further stated that in terms of the agreement entered into between the parties, she received the entire amount due to her. She has no grievance against the petitioner. She also prayed for quashing the entire proceedings pursuant to the registration of the FIR and the judgment in C.C.No.290/2012 passed by the Judicial First Class Magistrate Court, Koyilandy. 7. The learned Public Prosecutor submitted that in view of the settlement arrived at between the parties a report has been obtained from the investigating officer, wherein it is reported that the parties settled their entire disputes and that respondent No.3 has no grievance against the petitioner. It is submitted at the bar that the marital tie between the petitioner and the respondent No.3 has been dissolved by a decree of Crl.M.C.No.5243 of 2023 4 divorce and respondent No.3 got remarried. In B.S.Joshi and Others v. State of Haryana and Another [2003 (4) SCC 675], the Apex Court has considered the approach required to be kept in view in matrimonial disputes by the courts. In B.S.Joshi (supra) the Apex Court observed thus; “14. There is no doubt that the object of introducing Chapter XX-A containing Section 498-A in the Indian Penal Code was to prevent torture to a woman by her husband or by relatives of her husband. Section 498-A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hypertechnical view would be counterproductive and would act against interests of women and against the object for which this provision was added. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XX-A of the Indian Penal Code. 15. In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code.” 8. Following the law declared by the Apex Court in B.S.Joshi (supra), a Division bench of this Court in Thankamani and Others v. State of Kerala [2006 (3) KLJ 366] held that, in appropriate cases the Court could exercise its inherent powers under Section 482 Cr.P.C. to save the institution of marriage. In Gian Singh v. State of Punjab and Another Crl.M.C.No.5243 of 2023 5 ## [2012 (10) SCC 303] the Apex Court held thus:- “57. Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence my be acquittal or dismissal of indictment.” ## 9. In Bitan Sengupta and Another v. State of West Bengal and Another [2018 (18) SCC 366], the Apex Court considered the acceptability of a settlement between the parties at the appellate stage (post conviction stage). The Apex Court in Bitan Sengupta (Supra) observed thus: “7. In the aforesaid circumstances and going by the spirit of the law laid down by this Court in the cases of B.S Joshi & Ors. v. State of Haryana & Anr., we are of the opinion that the High Court should have accepted the settlement and compounded the offences. It is, more so, when the settlement between the parties, who were husband and wife, was even acted upon as the parties took mutual divorce on that basis. 8. We accordingly, allow this appeal and set aside the order of conviction passed against the appellants.” Crl.M.C.No.5243 of 2023 6 ## 10. This Court in Soban v. State of Kerala [ ILR 2021 (2) Ker. 1212] has considered the power of the High Court under Section 482 Cr.P.C. to quash the proceedings and conviction in a case where the parties have arrived at a settlement. In Soban (Supra) this Court observed thus; “10. It is settled that the plenary power possessed by the High Court u/S. 482 of Cr.PC are very wide, though to be exercised sparingly and with circumspection. It is equally settled that the said power could be exercised irrespective of the nature of the proceedings and concurrently with appellate or revisional jurisdiction Criminal proceedings commence from the lodging of FIR and would continue till the order of conviction, if passed, attains finality. When the order of conviction by the Trial Court is under challenge before the appellate or revisional Court, it cannot be said that the order of conviction did attain finality. The presumption of innocence would continue till the order of conviction attains finality despite the conviction by the trial Court. An appeal challenging the order of conviction has the effect of continuation of trial itself. Since the power u/S. 482 of Cr.PC is not controlled by S. 320, such power could be exercised at any stage of the criminal proceedings including at the appellate or revisional stage. The section does not contemplate or specify any particular stage when the powers u/S. 482 could be invoked. S.320 also does not contemplate any stage or specific mode by which Court can permit compounding of the offences. Subsections (5) and (6) of S. 320 permit composition of the offences even during appellate or revisional stage. Thus, there is no reason whatsoever to restrict exercise of powers u/S. 482 of Cr.PC. only to cases where an order of conviction was not passed. The inherent power u/S. 482 for quashing criminal proceedings being of a wide magnitude for being exercised with the object of securing the ends of justice, there cannot be limitation on such powers for being exercised only prior to conviction of an accused. Merely because the order of conviction was pending adjudication at the appellate or revisional stage, the same could not be a ground for refusing to exercise powers u/S. 482 of Cr.P.C. to quash the criminal proceedings especially when the parties to the dispute had arrived at a settlement. Hence, I hold that if Crl.M.C.No.5243 of 2023 7 requirements of S.482 of Cr.PC were satisfied in the sense that it was necessary to prevent abuse of the process of any Court or to secure the ends of justice, the criminal proceedings involving noncompoundable offence could be quashed notwithstanding the fact that the order of conviction was already passed against the accused provided offence in question does not fall in the category of offences prohibited for compounding in terms of the pronouncement of the Apex Court in Gian Singh (supra), Narinder Singh (supra) and Laxmi Narayan (supra).” 11. In the present case, the parties are living separately in their own peaceful settlement. Their dispute is purely personal in nature. 12. Having regard to the nature and the gravity of the offences alleged and the circumstances brought out, I feel that the entire proceedings pending against the petitioner deserves to be quashed. In the result, the entire proceedings initiated pursuant to the registration of FIR No. 350/2011 of Elathur Police Station stand quashed. The judgment of conviction and sentence passed against the petitioner is set aside. The Crl.M.C. stands disposed of as above. Sd/K.BABU JUDGE ab Crl.M.C.No.5243 of 2023 8 ## **`APPENDIX OF CRL.MC 5243/2023`** ``` PETITIONER ANNEXURES ANNEXURE A 1CERTIFIED COPY OF FIRST INFORMATION REPORT DATED 17.6.2011 IN CRIME NO. 350/2011 OF ELATHUR POLICE STATION. ANNEXURE A 2CERTIFIED COPY OF FINAL REPORT DATED 2.3.2012 IN CRIME NO. 350/2011 OF ELATHUR POLICE STATION. ANNEXURE A 3CERTIFIED COPY OF THE COURT CHARGE IN C.C. NO. 290/2012 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE, KOYILANDY. ANNEXURE A 4TRUE COPY OF JUDGMENT DATED 16.7.2018 IN C.C. NO. 290/2012 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE, KOYILANDY. ANNEXURE A 5TRUE COPY OF ORDER DATED 14.8.2018 IN CMP NO. 1607/2018 IN CRIMINAL APPEAL NO. 284/2018 ON THE FILE OF THE COURT OF SESSIONS, KOZHIKODE DIVISION. ANNEXURE A 6TRUE COPY OF AGREEMENT DATED 28.5.2019 EXECUTED BETWEEN THE PETITIONER AND THE 3RD RESPONDENT. ANNEXURE A 7AFFIDAVIT EXECUTED BY THE 3RD RESPONDENT DATED 24.6.2023. ``` ## RESPONDENTS ANNEXURES: NIL