Kerala High Court
Saliha K.N vs Abdulla on 2 January, 2012
Author: C.T. Ravikumar
Bench: C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
TUESDAY, THE 19TH DAY OF JUNE 2012/29TH JYAISHTA 1934
Crl.Rev.Pet.No. 1220 of 2012 (B)
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AGAINST THE ORDER IN Crl.MC.4453/2011 OF HIGH COURT OF KERALA DATED 2-1-2012
IN CP.14/2012 of JUDL.MAG. OF FIRST CLASS, PAYYOLI
REVISION PETITIONER/DEFACTO COMPLAINANT:
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SALIHA K.N, AGED 19 YEARS
D/O.USMAN.M.C., THARAKKAL HOUSE
PUTHUPPANAM AMSOM DESOM, VADAKARA TALUK, KOZHIKODE.
BY ADV. SRI.T.G.RAJENDRAN
RESPONDENTS/ACCUSED AND STATE:
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1. ABDULLA
S/O. MOIDEEN, THREE ROSSES, VALIYANNUR.P.O.
MUTHUVANA, VADAKARA - 673 101.
2. SUB INSPECTOR OF POLICE
PAYYOLI POLICE STATION - 673 021.
3. STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADV. SRI.CIBI THOMAS
BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON
19-06-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
'C.R.'
C.T. RAVIKUMAR, J.
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C RL. R.P. NO. 1220/2012
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Dated this the 19th day of June 2012
O R D E R
This revision petition is nothing but a last ditch effort of the defacto complainant to save her matrimonial tie. The circumstances beckon a brief narration of the facts. The revision petitioner/the defacto complainant is married to the son of the 1st respondent/1st accused. Alleging malefic manners on the part of the father-in-law viz; the first respondent herein the revision petitioner lodged a complaint against him alleging commission of offences punishable under sections 324 and 308 of the Indian Penal Code. Accordingly, Crime No. 478/11 was registered in Payyoli Police Station containing damnation under Sections 324 and 308 of IPC. During the course of its investigation itself interference by their kinsmen brought about a compromise between the parties. Soon, the petitioner herein approached this court by filing Criminal M.C.No. 5533/2011 for quashing the First Information Report. Essentially, the C RL. R.P. NO. 1220/2012 -2- contention was that since the disputes were settled between the parties and that was duly intimated to the police further investigation based on the FIR would only be a futile exercise and no useful purpose could be served by allowing the FIR to remain. An affidavit to that effect was also filed in the said Criminal M.C. Having found that investigation is the province of the police and at that stage, this court could not take cognizance of such an affidavit and to quash the further proceedings which are pending investigation the said case was disposed of as per Annexure-I order with a direction to the investigating officer to complete the investigation and to file a final report within six weeks from the date of receipt of copy of that order. The petitioner was also directed to furnish a copy of the order to the investigating officer.
2. The investigating officer went on with the investigation and laid Annexure-II final report before the Judicial First Class Magistrate Court, Payyoli charge sheeting the 1st respondent herein for commission of C RL. R.P. NO. 1220/2012 -3- offences under Sections 324 and 308 IPC. Thereupon, the learned Magistrate considered the final report and the materials sent along with and took cognizance of offences punishable under Sections 324 and 308 IPC and commenced committal proceedings as C.P.No. 14 of 2012. During its course the learned Magistrate issued a non- bailable warrant to the first respondent/first accused. This revision petition has been filed in the above circumstances with the prayer to call for the records and to set aside the order in C.P.No. 14/2012 taking cognizance of the offences under Sections 324 and 308 by the learned Magistrate.
3. The facts expatiated above would reveal that the defacto complainant herself now, seeks for an abrupt termination of the proceedings after setting the law in motion all by herself. Now, Criminal M.A. No. 4178 of 2012 has been filed by the revision petitioner under Section 482 Cr.P.C. with the prayer to stay all further proceedings in C.P. No. 14/2012 on the file of the Munsiff Magistrate Court, Perambra. The affidavit accompanying the said petition C RL. R.P. NO. 1220/2012 -4- succinctly explains all the developments and circumstances since the lodging of the complaint. As noticed hereinbefore, the revision petitioner had earlier filed an affidavit in Crl.M.C. No. 3388/2011 regarding the settlement of the dispute between the parties. All the attending circumstances are narrated in detail by the petitioner to contend that non-interference by this court at this stage, would ultimately result in miscarriage of justice. It is evident that the learned Magistrate took cognizance of offences under Section 324 & 308 Indian Penal Code against the 1st accused. The said offences are non- compoundable in terms of the provisions under Section 320 Cr.P.C. Therefore, there is no question of granting permission to compound such non compoundable offences as any such order would violate the statutory provision. The question therefore, is whether the proceedings could be terminated, in the circumstances, invoking the inherent jurisdiction of this court under Section 482, Cr.P.C.
4. Now, I may consider the question regarding the C RL. R.P. NO. 1220/2012 -5- scope of exercise of the inherent power under Section 482 of the Code of Criminal Procedure in circumstances like the one on hand. The decision of the Hon'ble Supreme Court in B.S. Joshi v. State of Haryana reported in 2003 (2) KLT 1062 (SC) assumes relevance in this context. In that case the husband was one of the appellants and the wife was the second respondent and their marriage was solemnized on 21-7-1999. They were living separately since, 15-7-2000 and the F.I.R. was registered at wife's instance on 2-1-2002 under Sections 498 A, 323 and 406, I.P.C. During pendency of the criminal case the dispute between the husband and wife and their family members were settled. Then, the wife filed an affidavit stating that her dispute with the husband and the other members of his family had been finally settled and she and her husband had agreed for mutual divorce. Thereupon both the parties approached the High Court and jointly sought for quashing the criminal proceedings launched against the husband and his family members based on the aforesaid F.I.R. The High Court dismissed the C RL. R.P. NO. 1220/2012 -6- petition holding the view that as offences under Section 498 A and 406, I.P.C. being non-compoundable the inherent powers under Section 482 of the Code could not be invoked to by-pass Section 320 Cr.P.C. The Hon'ble Supreme Court held that the High Court in exercise of its inherent powers could quash criminal proceedings or F.I.R. or complaint and Section 320, Cr.P.C. would not and could not limit or affect the powers under Section 482 of the Code. Paragraphs 14 and 15 of the said decision read thus:-
"14. There is no doubt that the object of introducing Chapter XX-A containing S. 498 A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. S. 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 relative to satisfy unlawful demands of dowry. The hyper-technical view would be counter productive 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 setting earlier. That is C RL. R.P. NO. 1220/2012 -7- no the object of Chapter XXA of Indian Penal Code.
15. In view of the above discussion, we hold that in the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and S. 320 of the Code does not limit or affect the powers under S. 482 of the Code". In the decision in Pankajkumar v. State of Maharashtra reported in 2008 Crl.L.J. 3944 while considering the scope and ambit of powers of the High Court under Section 482 Cr.P.C; or Article 227 of the Constitution of India the Hon'ble Supreme Court held that powers possessed by the High Courts under the said provisions are very wide but these should be exercised only in appropriate cases; ex debitio justitiae to do real and substantial justice for the administration of which alone courts exist.
5. In the context of this case, the decision of a Division Bench of this Court in Thankamma Vs. State of Kerala reported in 2006 KLT 846 also assumes much relevance. That was a case wherein at the instance of the wife, offences punishable under Sections 498 A, 506 (1), C RL. R.P. NO. 1220/2012 -8- 342, 323 & 324 r/w. Sec. 34 of Indian Penal Code were charged against the relatives of the husband and the trial court found them guilty under Section 498 A, 506 (1), 342, 323 r/w. Sec. 34 of the Indian Penal Code. The conviction entered and sentence imposed on them by the trial Court were confirmed by the Appellate Court. Later, Criminal Revision Petition No. 2367/2005 was filed by the defacto complainant viz; the wife against the judgment of the appellate court and she filed an application for permission for compounding the offences. After considering the legal bar in Sub Section (9) of Section 320, this court found that a non-compoundable offence could not be compounded. At the same time, the Division Bench considered another application filed as Crl. M.A. No. 7103/2006 under Section 482 of the Code of Criminal Procedure to quash the criminal proceedings. The Division Bench found that the husband and wife had re-united and are living peacefully with their daughter and their family members. It was submitted that in the said circumstances, giving effect to the sentences C RL. R.P. NO. 1220/2012 -9- imposed against her mother-in-law, brother-in-law and sister- in-law to undergo simple imprisonment for one year might again result in astringency in the matrimonial tie. In paragraph 12 & 13 of the said judgment the Division Bench held thus :
" 12. The courts have generally taken a liberal attitude for compounding the offences committed by spouse as well as their relations in matrimonial disputes. The legislative mandate of reconciliation by courts is reflected in 23 (2) of the Hindu Marriage Act, 1955 and various other legislations dealing with personnel laws. The apex court in V.K. Gupta v. Smt. Nirmala Gupta ((1979) 4 SCC 258) reminded the courts that it is fundamental that reconciliation of a ruptured marriage is the first essay of the Judge, aided by counsel in their noble adventure. Court alerted that the sanctity of marriage is in essence, the foundation of civilization and, therefore, court and counsel owe a duty to society to strain to the utmost to repair the snapped relation between the parties. When the parties are seeking to compound the offence under S. 498-A of the IPC the approach of the court would be to save the institution of marriage since the sanctity of marriage is a cornerstone of civilisation and to bring peace and C RL. R.P. NO. 1220/2012 -10- happiness in the society.
13. Courts have however, to be guarded that S. 482 is not misused so as to compound the offence under S. 498-A which is otherwise non-compoundable. The court should examine whether request is bona fide and not intended to get out of the clutches of law. Each case has to be decided on the facts and circumstances of that case. Courts must see that the power of the court under S. 482 is not misused. We are therefore of the view that this court cannot exercise the powers under S.397 Cr.P.C. so as to compound a non-compoundable offence under S. 320 Cr.P.C. and in appropriate cases the courts could exercise its inherent powers under S. 482 to save the institution of marriage. "
6. It is thus obvious that after considering the over all situation, the Division Bench found therein that the courts would have to save the institution of marriage as the sanctity of marriage is a corner stone of civilization and to bring peace and happiness in the society. In the case on hand, petitioner who set the law in motion by lodging a complaint that ultimately resulted in laying of a charge against her father-in-law later, re-united with her estranged husband and now, seeks for quashing the entire proceedings against her father-in-law to preserve and protect C RL. R.P. NO. 1220/2012 -11- the institution of marriage. Indubitably, marriage as a social institution is considered solemn and sacred all over the civilized word and therefore, courts have and owe a duty to redeem the parties from volatile and vulnerable situations like the one on hand. There is yet another aspect as well. The invaluable time of the court has to be saved whenever and wherever it is possible and compelling parties to continue to prosecute the case, the continuation of which has become unnecessary would certainly end in futility. In a case of this nature, in view of the reconciliation there is not even a remote possibility of the defacto complainant deposing against the accused with a view to fetch him a conviction. I have no hesitation to say, in the totality circumstances, that allowing continuance of the proceedings based on Crime No. 478/2011 of Payyoli Police Station any further would result in miscarriage of justice and also would result in abuse of process of Court. In this case, it is to be noted, earlier, even in Crl. M.C. No. 4453/2011, the revision petitioner herein/defacto complainant, filed an C RL. R.P. NO. 1220/2012 -12- affidavit stating that the issue between the petitioner and the 1st respondent herein that led to the registration of Crime No. 478/2011 of Payyoli Police Station was settled. That fact was also duly intimated to the investigating officer as well. Even, in this revision petition essentially the prayer of the petitioner is to terminate the proceedings before the Munsiff Court, Payyoli which is pending before that court as C.P.No. 14 of 2012 to save the institution of marriage. True that in view of Annexure II and the materials available before the court along with the report under Section 173 of the Code of Criminal Procedure, the learned Magistrate is perfectly justified in taking cognizance of offences under Section 324 & 308 against the accused. Therefore, the prayer of the petitioner to set aside the action culminated in taking cognizance of the offences under Section 324 and 308 against the 1st respondent/accused cannot be upheld. The learned Magistrate and also the Court to which case is to be committed, if continuation of the committal proceedings is allowed, cannot consider the prayer now, made by the C RL. R.P. NO. 1220/2012 -13- petitioner herein. As noticed earlier, the Hon'ble Supreme Court in B.S. Joshi's case (Supra) took note of the intent in the introduction of Chapter XX-A containing Section 498-A, in the Indian Penal Code and held non-exercise of inherent powers involving allegation of commission of offence under Section 498-A on settlement of dispute by the wife would prevent the wife from settling in life and in such circumstances, it would defeat the very purpose of its introduction. In view of the position of law obtained from the decisions referred (Supra) and the position of fact obtained from the specific averments of the petitioner, the defacto complainant I have no doubt that non-exercise of inherent power under Section 482 Cr.P.C would prevent the petitioner in settling safely with her husband. Therefore, I am of the considered view that this is an eminently fit case wherein this court should invoke the inherent power to do real and substantial justice and the fact that it is the de facto complainant who seeks such a relief is no ground for declining its exercise.
C RL. R.P. NO. 1220/2012 -14-
7. In the said circumstances, to save the institution of marriage and to secure ends of justice, I am inclined to exercise the inherent power under Section 482 of the Code of Criminal Procedure and accordingly the F.I.R. in Crime No. 478/2011 of Payyoli Police Station and all further proceedings based on it before the Munsiff Magistrate Court, Payyoli are quashed.
This Revision Petition is accordingly, allowed.
Sd/-
C.T. RAVIKUMAR
JUDGE
kvr/ /True copy/
P.S. to Judge