Unnikrishnan and Saraswathy v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE R.BASANT** **TUESDAY, THE 28TH OCTOBER 2008 / 6TH KARTHIKA 1930** **Crl.MC.No. 4023 of 2008()** - **-------------------------------------** **C.C. NIO.76/2008 OF THE JUDICIAL FIRST CLASS MAGISTRATE, KUNNAMKULAM. ........** **PETITIONER(S):** - **----------------------** **1. UNNIKRISHNAN, S/O. PARUKUTTY AMMA, KARUMATHIL HOUSE, PUTHURUTHY VILLAGED, THALAPIPILLY TK, THRISSUR DISTRICT.** **2. SARASWATHY, D/O. DEVAKY AMMA, KUNNAMKUMARATH HOUSE, PERAMANGALAM VILLAGE, THRISSUR DISTRICT.** **BY ADV. SRI.M.K.DILEEP KUMAR** ## **RESPONDENT(S):** - **-----------------------** **1. STATE OF KERALA, REP. BY DIRECTOR GENERAL OF PROSECUTION, ERNAKULAM.** **2. RAVINDRAN, S/O. BALAN NAIR, VATHIKKATHU HOUSE, PUNKUNNAM VILLAGE, THRISSUR DISTRICT.** **3. RAMAN NAIR, KAMANGANGATTU HOUSE, PERAMANGALAM VILLAGE, THRISSUR DISTRICT.** **4. RAMANI, D/O. DEVAKY AMMA, KUNNAMKUMAR HOUSE, PERAMANGALAM VILLAGE, THRISSUR DISTRICT.** **5. SANTHA, D/O. DEVAKY AMMA,** - **-DO-** **6. SAKUNTHALA, D/O. BALAN NAIR, VATHIKKATTU HOUSE, PUNKUNNAM VILLAGE, THRISSUR TALUK.** **7. KRISHNAKUMAR, S/O. BALAN NAIR,** - **-DO-** **BY PUBLIC PROSECUTOR SRI.AMJED ALI** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **R.BASANT, J.** **----------------------** Crl.M.C.No.4023 of 2008 ---------------------------------------Dated this the 28[th] day of October 2008 ## **O R D E R** The petitioners are spouses. They figure as complainant and first accused in a prosecution for the offence punishable under Section 494 I.P.C read with 107,109,114 and 34 I.P.C. The crux of the allegations is that while the marriage of the first petitioner with the second petitioner was valid and current, the second petitioner had married again. Complaint was filed. Cognizance was taken by the learned Magistrate and the same is now pending before the learned Magistrate. 2. During the pendency of the proceedings, the spouses have settled their disputes. The first petitioner/complainant has no surviving grievance against the second petitioner herein or against any other accused. The first petitioner wanted to report settlement/composition before the learned Magistrate. When he made a request to that effect, the learned Magistrate is “reluctant” to receive the application for composition and pass appropriate orders on such application. All the co-accused have not entered appearance and this, according to the petitioner, appears to be the reason why the learned Magistrate is “reluctant” to accept the application for composition. Crl.M.C.No.4023/08 2 3. I am unable to appreciate the contentions raised. It has clearly been held in **Baiju v. State of Kerala [2007(4) KLT 1082]** that to accept a composition, it is not necessary for the learned Magistrate to insist on appearance of the accused person. Composition is a unilateral act that can be effected by the complainant and when the complainant reports composition, if the composition is acceptable otherwise under Section 320 Cr.P.C, it is unnecessary for the learned Magistrate to ritualistically insist on the personal presence of all the accused persons. In a case like this, where the spouses have allegedly settled their disputes and the complainant has compounded the offences committed by all the accused persons, I fail to understand why insistence must be made on the personal presence/appearance of the accused persons. The learned Magistrate, I have no hesitation to agree, must consider the application for composition under Section 320 Cr.P.C on merits whether all the accused have entered appearance or not and whether they are represented or not. Appropriate order on merits must be passed by the learned Magistrate. Crl.M.C.No.4023/08 3 4. The second submission is more surprising. It is submitted that an application for composition was filed before the learned Magistrate. But the learned Magistrate is reluctant to accept the application. The very question has been considered in detail in **Gopalakrishna Pillai v. District Superintendent of Police [2008(3) KLT 80]** and this court has clearly held that any such course is unavailable to any Magistrate. The petitioner can file the application and the learned Magistrate must consider the same and pass appropriate orders. The petition must either be allowed, rejected or returned. There is no fourth course available to the learned Magistrate - of being reluctant to receive and entertain the application. There is nothing to show that any such application has been filed. It is for the petitioner to file such application now. 5. It is prayed that in the peculiar facts and circumstances of this case composition may be accepted by this court invoking the jurisdiction under Section 482 Cr.P.C. There must be order and discipline in the proceedings. What can be achieved under Section 320 Cr.P.C before the learned Crl.M.C.No.4023/08 4 Magistrate cannot be sought to be achieved before this court by invoking the extraordinary inherent jurisdiction under Section 482 Cr.P.C. In the absence of exceptional and compelling reasons, this court shall not invoke the extraordinary inherent jurisdiction. No such reasons are shown to exist at all. 6. In the result, this Crl.M.C is dismissed with the observation that it shall be open to the petitioners to report settlement and composition before the learned Magistrate and thereupon the learned Magistrate must consider the application for composition on merits, in accordance with law and expeditiously - on the date of filing the application itself unless there are compelling reasons. 7. Hand over copy of this order to the learned counsel for the petitioner. ## **(R.BASANT, JUDGE)** jsr Crl.M.C.No.4023/08 5 Crl.M.C.No.4023/08 6 ## **R.BASANT, J.** CRL.M.C.No. of 2008 ORDER 09/07/2008