Ummer Shaif and others v State of Kerala and Ibrahim M.K.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **TUESDAY, THE 27TH DAY OF AUGUST 2013/5TH BHADRA, 1935** ## **Crl.MC.No. 3609 of 2013 ()** **--------------------------CC.NO. 51/2012 OF CHIEF JUDICIAL MAGISTRATE COURT, KASARAGOD CRIME NO. 728/2011 OF MANJESWAR POLICE STATION , KASARGOD ----------------------------------** ## **PETITIONERS/ACCUSED :** **-----------------------------------------** **1. UMMER SHAIF, S/O. MOIDEEN KUNHI, RESIDING AT ARIMALA HOUSE, BADAJE VILLAGE AND POST, VIA MANJESHWAR, KASARAGOD TALUK.** **2. ABDUL HAMEED ALIAS ARIF, S/O. MOHAMMED, RESIDING NEAR MELANGADI JUMA MASJID,VAMANJOOR, BANGARA, MANJESHWAR VILLAGE AND POST, KASARAGOD TALUK.** **3. ABDUL KHADER, RESIDING NEAR KADAMBAR VILLAGE OFFICE, KADAMBAR VILLAGE AND POST, VIA MANJESHWAR, KASARAGOD TALUK.** **4. ABDUL RAHIMAN, S/O. MOIDEEN KUNHI, NEAR SALAFI MASJID, ANGADIPPADAVU, POST MANJESHWAR, KASARAGOD TALUK.** **BY ADV. SRI.P.V.KUNHIKRISHNAN** ## **RESPONDENTS/COMPLAINANT AND STATE :** **-----------------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.** **2. IBRAHIM M.K.,S/O. LATE MOIDEEN KUNHI TAILOR, RESIDING AT BADRIYA QUARTERS, NEAR SALAFI MASJID, ANGADIPPADAVU, POST MANJESHWAR, KASARAGOD TALUK-671 532.** - **R1 BY PUBLIC PROSECUTOR SMT. V.H.JASMINE R2 BY ADV. SRI.P.V.ANOOP** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27-08-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts** ## **Crl.MC.No. 3609 of 2013 () ----------------------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES: ---------------------------------------------** **ANNEX A : COPY OF THE FIR IN CRIME NO.728/2011 OF MANJESHWARAM POLICE STATION, KASARAGOD ALONG WITH THE PRIVATE COMPLAINT. ANNEX B : COPY OF THE FINAL CHARGE IN CRIME NO.728/2011 OF MANJESHWARAM POLICE STATION, KASARAGOD WHICH IS NOW NUMBERED AS CC NO.51/2012 ON THE FILE OF CHIEF JUDICIAL MAGISTRATE, KASARAGOD. ANNEX C : COPY OF THE AFFIDAVIT SWORN BY RESPONDENT NO.2 DTD.10.7.2013.** **RESPONDENT(S)' ANNEXURES: NIL** **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** ## **V.K.MOHANAN, J. -----------------------------------Crl.M.C.No.3609 of 2013 -----------------------------------Dated this the 27[th] day of August, 2013** ## **ORDER** 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 the accused in C.C.No.51 of 2012 on the file of the Chief Judicial Magistrate Court, Kasaragod which is a case instituted upon the police report in Crime No.728 of 2011 of Manjeswaram Police Station for the offences punishable under Sections 341, 323, 324, 326 and 120-B read with Section 34 of I.P.C. with a prayer to quash Annexure-B charge in Crime No.728 of 2011 of Manjeswaram Police Station and the entire proceedings in C.C.No.51 of 2012 on the file of the Chief Judicial Magistrate Court, Kasaragod as the matter is settled out of court. 2. The allegation in the above case is that on 04/10/2011 at 7.30 P.M., the petitioners due to the enmity in connection with the Mosque Committee Election wrongfully restrained the de facto complainant and assaulted him using a Crl.M.C.No.3609 of 2013 :-2-: Granite stone which resulted grievous hurt to the de facto complainant. It is also alleged that the other accused also assaulted the de facto complainant and thus according to the prosecution the accused has committed the offences punishable under Sections 341, 323, 324, 326 and 120B read with Section 34 of IPC. Now the case of the petitioners is that during the pendency of the case the entire dispute is settled with the second respondent, who is the de facto complainant and the second respondent has sworn into Annexure-C affidavit. 3. Heard the learned counsel for the petitioners as well as the 2[nd] 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 dispute is settled amicably between the parties 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.3609 of 2013 :-3-: 5. The learned counsel for the 2[nd] 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 including Annexure-C affidavit. 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 under Sections 341, 323, 324, 326 and 120-B read with 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 Crl.M.C.No.3609 of 2013 :-4-: amicably settled the matter. From the submission made by the counsel for the 2[nd] respondent, it appears to me that the de facto 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 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 Crl.M.C.No.3609 of 2013 :-5-: 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. According to me, 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 Crl.M.C.No.3609 of 2013 :-6-: 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 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-B charge in Crime No.728 of 2011 of Manjeswaram Police Station and all further proceedings pending against the petitioners in C.C.No.51 of 2012 on the file of the Chief Judicial Magistrate Court, Kasaragod. ## **V.K.MOHANAN, JUDGE** skj