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Muhammed Hussain vs State Of Kerala on 4 June, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

TUESDAY, THE 04TH DAY OF JUNE 2019 / 14TH JYAISHTA, 1941

Crl.MC.No. 3724 of 2019

AGAINST THE ORDER/JUDGMENT IN CRA 82/2019 of DISTRICT COURT
SESSIONS COURT,MANJERI

AGAINST THE ORDER/JUDGMENT IN CC 63/2015 of JUDICIAL MAGISTRATE
OF FIRST CLASS -II,PERINTHALMANNA

CRIME NO. 668/2014 OF Melattur Police Station , Malappuram

PETITIONER/S:
MUHAMMED HUSSAIN, AGED 48 YEARS, S/O. IBRAHIM,
PARAMMAL HOUSE, PARAMBOOR, KEEZHATTUR,
PERINTALMANNA TALUK, MALAPPURAM DISTRICT

BY ADV. SRI.U.K.DEVIDAS

RESPONDENT/S:
1 STATE OF KERALA, REPRESENTED BY THE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM

2 PATHUMMA, AGED 74 YEARS, D/O. ALAVI (LATE),
PARAMMAL HOUSE, PARAMBOOR, PATTIKKAD P.O.,
PERINTALMANNA TALUK, MALAPPURAM DISTRICT – 679 325

OTHER PRESENT:
SRI.AMJAD ALI, PUBLIC PROSECUTOR FOR R1,
SRI.PRINSUN PHILIP FOR R2

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30.5.2019,
THE COURT ON 04.06.2019 PASSED THE FOLLOWING:
ALEXANDER THOMAS, J.

Crl.M.C.No. 3724 of 2019

Dated this the 4th day of June, 2019
ORDER

The petitioner is the accused in Calendar Case, C.C.No. 63/2015

on the file of the Judicial First Class Magistrate’s Court-II,

Perinthalmanna, which has arisen out of Crime No.668/2014 of

Melathur Police Station, registered for offences punishable under

Secs.452 and 362 of the I.P.C.

2. The brief of the prosecution case is that on 11.11.2014 at

about 17 Hours, the petitioner accused had trespassed into the house

of the defacto complainant and attacked her with a wooden stick. The

Police, after investigation has submitted the impugned Anx.I final

report/charge sheet in Crime No.668/2014 of Melathur Police

Station, which has led to the institution of aforementioned C.C.No.

63/2015 on the file of the Judicial First Class Magistrate’s Court-II,

Perinthalmanna. After trial, the petitioner has been convicted as per

Anx.II judgment dated 28.3.2019 of the Judicial First Class

Magistrate’s Court-II, Perinthalmanna, in C.C.No.63/2015 and he has

been sentenced to undergo rigorous imprisonment for a period of 2 1/2

years and to pay fine of Rs.10,000/- and in default thereof, to
Crl.M.C.3724/19 – : 3 :-

undergo rigorous imprisonment for a period of 3 months under Secs.

326 and 452 of the SectionI.P.C. Aggrieved by the abovesaid conviction and

sentence, the petitioner has filed Crl.Appeal No.82/2019 before the

Sessions Court, Manjeri. It is stated the Sessions Court has now

suspended the impugned sentence as per Anx.III order dated

25.4.2019 in Crl.M.P.No.956/2019 in Crl.Appeal No. 82/2019. The

abovesaid impugned criminal proceedings have been set in motion on

the basis of the complaint/first information statement of the 2 nd

respondent lady defacto complainant.

3. It is now stated that the disputes between the petitioner

accused and the 2nd respondent defacto complainant have now been

settled due to the intervention of the mediators and well-wishers, etc.

and the 2nd respondent has sworn to Anx. IV affidavit dated 21.5.2019

stating about the factual aspects of the settlement and that she does

not intend to continue the prosecution any further and that she has

no objection in the quashment of the impugned criminal proceedings

as against the petitioner and for the consequential setting aside of the

conviction and sentence imposed on the petitioner by the learned

Magistrate, etc.

4. Heard Sri.U.K.Devidas, learned counsel appearing for the
Crl.M.C.3724/19 – : 4 :-

petitioner accused, Sri.Prinsun Philip, learned counsel appearing for

the 2nd respondent defacto complainant and Sri.Amjad Ali, learned

Prosecutor appearing for the 1st respondent State.

5. It is seen that the offences alleged against the petitioner in

the instant crime are those under Secs.452 and 326 of the SectionI.P.C. It is

now submitted by the learned Advocates appearing on both sides that

the entire disputes between the parties have been settled. Sri.Prinsun

Philip, learned counsel appearing for the 2nd respondent would

submit on the basis of the instructions of this party that, as the entire

issues have been settled by her with the petitioner accused, the 2 nd

respondent is not interested to continue with the above criminal

proceedings and that she has no objections in this Court quashing the

impugned criminal proceedings as against the petitioner and for

consequential setting aside of the impugned conviction and sentence

imposed on the petitioner, etc.

6. The learned Advocates appearing in both these cases

would point out that the Apex Court in the judgment dated 26.3.2018

in Crl.A.No.487/2018 in the case in SectionBitan Senguptha ors. v. The

State of West Bengal ors . [2018 (9) SCALE 249

MANU/SC/0776/2018] has dealt with almost similar case wherein the
Crl.M.C.3724/19 – : 5 :-

offences alleged therein are those under Secs.498A, 406 506 of the

SectionI.P.C as well as Secs.3 4 of the SectionDowry Prohibition Act, etc. The

learned judicial Magistrate as per judgment dated 27.6.2014 found the

appellants guilty of the offence under Sec.498A of the SectionI.P.C and directed

the appellant No.1 to undergo rigorous imprisonment for 1 year and

simple imprisonment for 6 months to appellant No.2. Being aggrieved

therein, the appellants filed appeal before the Sessions Court which was

dismissed vide order dated 21.9.2016. During the pendency of the above

appeal before the Sessions Court, the appellant and the 2 nd respondent

had arrived at a compromise and accordingly memorandum of

understanding was executed on the basis of which the parties had

amicably settled their marital disputes. The dismissal of the Criminal

Appeal was challenged by filing Criminal Revision Petition before the

High Court and the High Court as per order dated 12.9.2017 had

concurred with the appellate Sessions Court which led to the dismissal

of the Revision Petition. The Supreme Court has held that as the parties

have settled the matter and as they have decided to keep harmony

between them to enable them to life with peace and love and as the

defacto complainant has no complainant against the appellant therein,

etc., it was held that going by the spirit of law laid down by the Apex

Court in the decision in SectionB.S.Joshi ors. v. State of Haryana anr,
Crl.M.C.3724/19 – : 6 :-

reported in (2003) 4 SCC 675, that the High Court should have

accepted the settlement and should have quashed the impugned

criminal proceedings. Accordingly, the Apex Court as per the abovesaid

judgment had accepted the settlement arrived at between the parties

and accordingly set aside the order of conviction passed against the

appellants, etc. This Court in various cases as in SectionBiju Eappan v. State

of Kerala, reported in 2010 (1) KLT 289, has dealt with a similar case

and has held that the appellate Sessions Court cannot set aside the

conviction imposed by the trial court on the basis of the settlement

arrived at between the parties, this Court exercising the extra ordinary

inherent powers under Sec.482 of the SectionCr.P.C, could definitely, set aside

the conviction and quash the proceedings when due to the settlement of

all the matrimonial disputes, conviction passed by the learned

Magistrate under Anx-A1 is necessarily to be interfered with, to secure

the justice, exercising the powers under Secs.482 of the SectionCr.P.C. This

Court had followed the dictum laid down by the Apex Court in the

aforestated celebrated case in SectionB.S.Joshi ors. v. State of Haryana

anr, reported in (2003) 4 SCC 675 in that matter. In

Crl.M.C.No.3535/2018, the offences alleged are those under Secs.341,

323, 324, 326 354 r/w Sec.34 of the SectionI.P.C. This Court in a similar case

in Crl.M.C.No.7840/2017 (order dated 22.11.2017) had quashed the
Crl.M.C.3724/19 – : 7 :-

impugned criminal proceedings in case where the accused was initially

convicted by the trial court and during the pendency of the appeal,

parties have arrived at a compromise. The petitioner in Crl.M.C.No.

3535/2018 was a juvenile at the time of commission of the offence. The

abovesaid rulings of the Apex Court and this Court have been

followed by this Court in cases as in Crl.M.C.No. 3535/2018.

7. Accordingly, it is ordered that the impugned Anx.I final

report/charge sheet filed in Crime No. 668/2014 of Melathur Police

Station, which has led to the institution of Calendar Case, C.C.No.

63/2015 on the file of the Judicial First Class Magistrate’s Court-II,

Perinthalmanna, and all further proceedings taken in pursuance

thereof will stand quashed. Consequentially, it is ordered that the

impugned conviction and sentence imposed on the petitioner as per

Anx.II judgment dated 28.3.2019 of the Judicial First Class

Magistrate’s Court-II, Perinthalmanna, in C.C.No. 63/2015 will also

stand set aside and the very impugned criminal proceedings have

already been quashed on the basis of the settlement. Consequentially

it is further ordered that Crl.Appeal No. 82/2019 on the file of the

Sessions Court, Manjeri will stand disposed of as infructuous, in the

light of of the abovesaid directions.

Crl.M.C.3724/19 – : 8 :-

The petitioner will produce certified copies of this order before

the investigating officer concerned, the Judicial First Class

Magistrate’s Court-II, Perinthalmanna and the Sessions Court,

Manjeri, necessary information. The office of the Advocate General

will forward certified copy of this order to the investigating officer

concerned for necessary information.

With these observations and directions, the above Criminal

Miscellaneous Case will stand finally disposed of.

Sd/-

sdk+ ALEXANDER THOMAS, JUDGE
Crl.M.C.3724/19 – : 9 :-

APPENDIX
PETITIONER’S/S EXHIBITS:

ANNEXURE -I TRUE COPY OF THE FINAL REPORT IN CRIME NO.
668/13 OF MELATTUR POLICE STATION DATED
01.12.2014

ANNEXURE -II TRUE COPY OF THE JUDGMENT DATED 28.03.2019
IN C.C. NO. 63/2015 ON THE FILES OF THE
J.F.C.M. COURT-II, PERINTALMANNA

ANNEXURE -III TRUE COPY OF THE ORDER DATED 25.04.2019 IN
CR.M.P. NO.956/2019 IN CRL. APPEAL
NO.82/2019 ON THE FILES OF THE HONOURABLE
SESSIONS COURT, MANJERI

ANNEXURE -IV THE ORIGINAL OF THE AFFIDAVIT DATED
21.05.2019 EXECUTED BY THE SECOND RESPONDENT

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