Noushad vs State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS FRIDAY, THE 30TH DAY OF OCTOBER 2020 / 8TH KARTHIKA, 1942 CRL.MC.NO.3176 OF 2020(F) CC 279/2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS, SASTHAMCOTTA CRIME NO.884/2010 OF SASTHAMCOTTA POLICE STATION, KOLLAM PETITIONER/1ST ACCUSED: NOUSHAD, AGED 41 YEARS, S/O JALALUDEEN, VALUTHUNDIL THEKKETHIL VEEDU, NEAR THADATHILMUKKU, MYNAGAPPALLY, THEKKU MURI, MYNAGAPPALLY VILLAGE, KARUNAGAPPALLY, KOLLAM. BY ADV. SRI.B.MOHANLAL RESPONDENTS/STATE & DEFACTO COMPLAINANT: 1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2 THE STATION HOUSE OFFICER, SASTHAMCOTTA POLICE STATION, SASTHAMCOTTA.P.O, KOLLAM DISTRICT-690520. 3 REHNA @ SHINU, AGED 33 YEARS, D/O.SEENATH, R.S.NIVAS, KANJIRAMCODE CHERRY, MULAVANA VILLAGE, KUNDARA.P.O, ELAMPALLOOR, KOLLAM-691501. SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

ALEXANDER THOMAS, J.

--------------------------------------- Crl.M.C. No. 3176 of 2020 --------------------------------------- Dated this the 30th day of October, 2020

ORDER

The prayer in the above Criminal Miscellaneous Case filed under Sec.482 of the Cr.P.C. is as follows: “......quash Annexure-A1 and A2 FIR and Final Report in Crime No:884/2020 of Sasthamcottah Police Station in Kollam District pending as C.C.NO:279/2018 on the file of the Judicial First Class Magistrate Court, Sasthamcottah as against the Petitioner in the light of Annexure-A3 and A4.”

2. Heard Sri.B.Mohan Lal, learned counsel appearing for the

petitioner (A-1) and Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for respondents 1 & 2. Though notice to contesting respondent No.3 (lady defacto complainant) has been duly served, there is no appearance for that party.

3. The petitioner herein was originally arrayed as accused No.1

among the 4 accused in the impugned Anx.A1 FIR in Crime No.1278/2010 of Kundara Police Station, which was later transferred and renumbered as Crime No.884/2010 of Sasthamcottah Police Station. The above case was registered pursuant to the directions issued by the learned Magistrate on a private criminal complaint filed by the 3rd respondent. The petitioner (A-1) had married the ..3.. 3rd respondent. Accused Nos.2 to 4 therein are the father, mother and sister of A-1. The offences alleged in Anx.A1 are those punishable under Secs.498A, 506(2) & 34 of the IPC. The police after investigation has filed the impugned Anx.A2 final report/charge sheet in the said Crime No.884/2010 of Sasthamcottah Police Station, which later led to the pendency of C.C.No.28/2013 on the file of the JFCM, Sasthamcottah, whereby accused Nos.1 & 2 have been arrayed as accused and accused

Nos.3 & 4 were deleted from the accused array. Since the petitioner was employed in a Gulf country, case against him was split up and trial as against A-2 (father of the petitioner) had proceeded in C.C.No.28/2013 on the file of the JFCM, Sasthamcottah. It appears that the entire matrimonial disputes between the petitioner and the 3 rd respondent have been solved by Anx.A-3 compromise petition executed between the petitioner and the 3rd respondent in O.P.No.866/2010 on the file of the Family Court, Kollam. Pursuant to said compromise agreement, the proceedings before the Family Court were disposed of.

Condition No. 7 in Anx.A-3 compromise agreement is for quashment of impugned criminal proceedings in this case on the ground of settlement between the parties, which reads as follows:

..4.. “ശശാസശാസ്താംകകശാട്ട ജുഡഡീഷഷ്യൽ ഫസസ്റ്റ് കശാസസ്റ്റ് മജജിസസ്റ്റ്കട്രേറസ്റ്റ് കകശാടതജിയജിൽ വജിചശാരണയജിലുള്ള 498(A) വകുപ്പുപ്രകശാരമുള്ള കകസജിൽ മമശാഴജി നൽകജി പ്രതജികമളെ കുറവജിമുക്തരശാകജിമകശാള്ളുകകയശാ ബഹുമശാനമപെട്ട കകരളെശാ ഹഹൈകകശാടതജിയജിൽ ടജി ചശാർജസ്റ്റ് Quash മചയ്തു കജിട്ടുവശാനശായജി സതഷ്യവശാങസ്റ്റ്ങ്മൂലസ്താം നൽകുന്നതജിനസ്റ്റ് ഹൈർജജികകജി സമ്മതജിചജിട്ടുള്ളതുമശാകുന.”

4. The trial as against Accused No.2 (father of the

petitioner) had proceeded and the learned Magistrate has rendered Anx.A4 judgment dated 25.7.2018 in C.C.No.28/2013, acquitting the accused therein, and also by taking note of the settlement arrived between the parties as per Anx.A3 agreement. Para No.8 of Anx.A4 judgment of acquittal reads as follows: “8) Point Nos. i and ii:- According to the defacto complainant the

accused after the marriage between them was harassing her physically and mentally by demanding more money. Defacto complainant was examined as PW3 she would swear that accused had not harassed her for money. She further submitted that all matters pertaining to the case has been settled with the accused and she has no grievance against them. PW3 has filed comprom9ise petition also, but sanction was not granted as offence u/s.498(A) is non compoundable. PW1 and PW2 depose that they did not witness the incident. The material witnesses did not support the prosecution case and turned hostile. Hence it can be seen that there is nothing in evidence to prove the involvement of the accused in the alleged offence. Hence, no evidence is brought out to connect the accused with the prosecution case. Hence the prosecution could not prove this case. Therefore, point Nos.i and ii are answered against the prosecution.”

5. The case as against the petitioner herein (Accused

No.1) has now been renumbered as C.C.No.279/2018 on the file of the JFCM, Sasthamcottah, wherein the petitioner herein has been arrayed as the sole accused therein consequent to the split up of ..5..

cases. In view of acquittal of co-accused as per Anx.A4 judgment and in view of the settlement of entire disputes between the petitioner and the 3rd respondent as per Anx.A3 compromise agreement, this Court is of the considered view that continuance of impugned criminal proceedings as against the petitioner herein would be an abuse of the process of court.

6. Moreover, the defacto complainant (R-3 herein) has

deposed before the court below which led to judgment of acquittal as per Anx.A4, in which she has stated that she has not suffered any harassment and that the entire case has been settled. Therefore, in view of the abovesaid stand of the 3 rd respondent which led to

acquittal of co-accused as per Anx.A4 judgment, it is only to be held

that the very substratum of prosecution case stands shattered by the acquittal of co-accused person. The Full Bench of this Court in the case in Moosa v. Sub Inspector of Police [2006 (1) KLT 552 (FB)], has held that where the acquittal of co-accused person has led to the scenario of shattering of very foundation of prosecution case, then in appropriate cases criminal proceedings as against the remaining accused persons will be quashed on that ground.

7. Taking into account the totality of facts and circumstances of this case, this Court is of the considered view that ..6..

the continuance of impugned criminal proceedings in C.C.No.279/2018 on the file of the JFCM, Sasthamcottah, as against the petitioner herein would be an abuse of the process of court, as otherwise it will lead to unnecessary wastage of the precious time and resources of the judiciary and prosecution machinery. In that view of the matter it is ordered that, the impugned Anx.A2 final report/charge sheet filed in Crime No.884/2010 of Sasthamcottah Police Station, which later led to the pendency of C.C.No. 279/2018 on the file of the JFCM, Sasthamcottah, as against the petitioner herein and all further proceedings emanating therefrom as against the petitioner accused will stand quashed and set aside.

8. The petitioner will produce certified copies of this order

before the Investigating Officer concerned and well as before the JFCM, Sasthamcottah, who is dealing with C.C.No. 279/2018 for necessary information. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG ..7.. APPENDIX PETITIONER'S EXHIBITS: ANNEXURE A1 THE TRUE CERTIFIED COPY OF COMPLAINT, FIR IN CRIME NO.1278/2010 OF KUNDARA POLICE STATION AND THE RE-NUMBERED CRIME NO.884/2010 OF SASTHAMCOTTA POLICE STATION. ANNEXURE A2 THE TRUE CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.884/2010 OF SASTHAMCOTTA POLICE STATION IN KOLLAM DISTRICT PENDING AS C.C.NO.28/2013 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT,SASTHAMCOTTAH. ANNEXURE A3 THE TRUE COPY OF THE COMPROMISE ENTERED INTO BETWEEN THE PETITIONER AND THE 3RD RESPONDENT IN O.P.NO.866/2010 ON THE FILE OF THE FAMILY COURT,KOLLAM

ANNEXURE A4                THE   TRUE  CERTIFIED   COPY   OF   THE
                           JUDGMENT   IN   C.C.NO.28/2013    DATED
                           JUDICIAL   FIRST    CLASS    MAGISTRATE

COURT,SASTHAMCOTTAH

ANNEXURE A5                THE TRUE COPY OF THE NOTICE DATED
                           FIRST         CLASS       MAGISTRATE
                           COURT,SASTHAMCOTTAH               IN

C.C.NO.279/2018.