Disposed

Rajan P.B. v. the State of Kerala

Kerala HC10 Nov 2020Crl.MC/229/2017

Case brief

AI extract

What is this about?

In a criminal miscellaneous petition seeking quashment of proceedings for offences u/s 447, 427 IPC arising from a neighbourhood property dispute, the Court was satisfied a prior settlement existed, requiring the accused to pay Rs.5,000 to the respondent before seeking quashment of the charge sheet.

What did the court decide?

Petitioner given three months to pay Rs.5,000 to the respondent after which he may seek quashment of criminal proceedings.

Rajan P.B. Vs the State of Kerala — Civil Procedure and Limitation | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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TUESDAY, THE 10TH DAY OF NOVEMBER 2020 / 19TH KARTHIKA, 1942

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Crl.MC.No.229 OF 2017

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AGAINST THE ORDER IN CC 2145/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS, THIRUVALLA

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CRIME NO.2024/2014 OF THIRUVALLA POLICE STATION , PATHANAMTHITTA

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PETITIONER/SOLE ACCUSED:

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RAJAN P.B. S/O.BHASKARA KURUP, AGED 56, RAJ NIVAS, NJAL BHAGOM, KAVIYOOR, THIRUVALLA, PATHANAMTHITTA

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BY ADVS. SRI.C.S.MANILAL SRI.S.NIDHEESH

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RESPONDENTS/STATE & DEFACTO COMPLAINANT:

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1 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682081

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2 ANNAMMA MATHAI

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W/O.NINAN MATHAI, VAZHAYIL HOUSE, NJALIKANDOM, KAVIYOOR, THIRUVALLA, 689101

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R1-2 BY ADV. SRI.P.HARIDAS R1 BY ADV. SMT.ROSHIN MARIAM JACOB R1 BY ADV. SRI.P.C.SHIJIN

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PP SRI RAMESH CHAND

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.M.C No.229 of 2017

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(CR)

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ALEXANDER THOMAS, J.

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=========================== Crl.M.C No.229 of 2017

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=========================== Dated this the 10^th day of November, 2020

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ORDER

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The prayers in the aforecaptioned Crl.M.C filed under Sec.482 of

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the Cr.P.C are as follows :

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“(i) Quash Annexure-VI Charge Sheet in C.C 2145/14 on the file of JFCM, Thiruvalla.

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(ii) Grant such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of case.”

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Heard Sri.C.S.Manilal, learned counsel appearing for the petitioner (sole accused), Sri.Ramesh Chand, learned Public Prosecutor appearing for the 1^st respondent-State of Kerala and Sri.P.Haridas, learned counsel appearing for the contesting respondent No.2 (lady de facto complainant).

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The petitioner herein has been arrayed as the sole accused in the instant Annexure-V First Information Report in Crime No.2024/2014 of Thiruvalla Police Station, for offences punishable under Secs.447 & 427 of the Indian Penal Code, on the basis of the First Information Statement furnished by the 2^nd respondent-lady de facto

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complainant in respect of the alleged incident which happened on 06.10.2014. The police after investigation have filed the impugned Annexure-VI final report/charge sheet in the said Crime No.2024/2014 of Thiruvalla Police Station. It is in these proceedings at Annexure-VI final report/charge sheet, which has led to the pendency of calendar case, C.C.No.2145/2014 on the file of the Judicial First Class Magistrate’s Court, Thiruvalla, that is under challenge in this case.

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The petitioner has raised various contentions in this case. There had been some property dispute between the petitioner and the 2^nd respondent de facto complainant, who are living in the immediate neighbourhood and that later, both the said parties decided to settle the dispute and the said mediation was also facilitated by the competent police officials of Thiruvalla Police Station, where the instant crime was registered and thereafter, it has been recorded in Annexure-II police petition register dated 06.10.2014 of the Thiruvalla Police Station that the petitioner and the 2^nd respondent have amicably settled their disputes, etc. The petitioner would point out that though the petitioner was prepared to honour the settlement in terms of the agreement between them, for reasons not known to him, the 2^nd respondent had backtracked from the same and that is why he has been constrained to

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file the instant petition under Sec.482 of the Cr.P.C for seeking quashment of the impugned criminal proceedings.

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After hearing the petitioner and the 2^nd respondent, it appears that apart from the instant case at Annexures-V & VI in relation to Crime No.2024/2014 of Thiruvalla Police Station, two other criminal matters are also pending in respect of the involvement of these parties. One such case is Crime No.1281/2014 of Thiruvalla Police Station, in which the accused therein is the 2^nd respondent herein for the offence punishable under Sec.294(b) & 324 of the IPC, in which the de facto complainant/1^st informant is the petitioner herein, in respect of the alleged incident which happened on 06.10.2014. Yet another case is Crime No.1288/2016 of Thiruvalla Police Station, in which the sole accused therein is the petitioner herein, for offences punishable under Secs.294(b), 324 & 326 of the IPC, in which the de facto complainant therein is the 2^nd respondent therein. From the submissions of Sri.P.Haridas, learned counsel appearing for the 2^nd respondent, it is seen that the allegation in Crime No.1288/2016 of Thiruvalla Police Station is that the petitioner herein had assaulted the 2^nd respondent herein and she had to suffer fracture on her left hand. The learned counsel for the 2^nd respondent would point out that the medical records

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in relation to the said case would disclose that the 2^nd respondent has suffered fracture on the left hand and that is the reason why the serious offence as per Sec.326 of the IPC (which deals with voluntarily causing grievous hurt by dangerous weapons or means), for which the maximum punishment would be imprisonment for life or imprisonment of or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, etc., in the said case.

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The learned advocates appearing for the rival parties had initially submitted before this Court that they would advise their respective parties to endeavour for a comprehensive settlement in relation to all the three cases. Later, it appears that the parties could not reach any meeting of minds in these matters. When the case had come up for consideration on the last occasion, Sri.P.Haridas learned counsel appearing for the contesting respondent No.2 would submit that the present Crl.M.C is confined only to the instant Crime No.2024/2014 of Thiruvalla Police Station and that the other two cases are not the subject matter of the present petition and that the 2^nd respondent is seriously interested to settle this case and that as a matter of fact, the case of the petitioner is that the petitioner and the 2^nd respondent had earlier arrived at a settlement in the police station

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through the intervention of the police officials, as reflected in Annexure-II police petition register dated 06.10.2014 is correct and that the amount that was agreed by the parties and that the agreement by the parties was that the petitioner will pay an amount of Rs.5,000/(Rupees Five Thousand only) to the 2^nd respondent and that the 2^nd respondent will then withdraw her complaint, etc., and that later, the petitioner had resiled from his promise to pay the said amount of Rs.5,000/- to her even though she was willing for the said terms and conditions. Further, it was then submitted by Sri.P.Haridas, learned counsel appearing for the 2^nd respondent that even though the amount of Rs.5,000/- was agreed to be paid as early as on 06.10.2014, as referred to in Annexure-II, the said amount of Rs.5,000/- has not been explicitly stated in the entries in Annexure-II petition register. Even now, the 2^nd respondent is prepared to honour the said settlement, in case, the petitioner pays her not less than Rs.5,000/-, as agreed initially and that no extra amount is to be paid even though more than six long years had elapsed, after the said settlement referred to in Annexure-II petition register dated 06.10.2014. This Court had then suggested to the petitioner that since the other two cases are not the subject matter of this petition, there is no necessity to consider those issues and that

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the petitioner may honourably settle the matter, as agreed to by him earlier.

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Subsequently, when the matter has come up on 04.11.2020, Sri.C.S.Manilal, learned counsel appearing for the petitioner had then fairly submitted that the case may be adjourned by three days to ensure that the petitioner is able to produce a demand draft for Rs.5,000/- in favour of the 2^nd respondent, as noted in this Court’s order dated 30.10.2020, in order to effectuate the settlement between the parties in this case and that the petitioner’s counsel will persuade the petitioner to pay an amount of Rs.5,000/- in that regard, etc.

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Today when the matter has been taken up for consideration, Sri.C.S.Manilal, learned counsel appearing for the petitioner would submit that the petitioner is not available in station and that the counsel has been told by the petitioner’s son that the petitioner is now having some treatment for mental problems and that therefore, the learned counsel for the petitioner is not in a position to report that demand draft of Rs.5,000/- in favour of the 2^nd respondent could be handed over to the learned counsel for the 2^nd respondent, etc.

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After hearing both the parties concerned, this Court is of the view that even going by the case of the petitioner, there was settlement

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between the parties, as referred to Annexure-II dated 06.10.2014. True that, there is no endorsement in Annexure-II as to the exact terms and conditions of the agreement or as to the amount that was agreed to be paid by the petitioner/accused to the 2^nd respondent-de facto complainant. The version of the 2^nd respondent, as submitted through Sri.P.Haridas, before this Court that the agreement was that the petitioner should pay Rs.5,000/- to the 2^nd respondent for the compromise, etc. appears to be a probable and believable version, as the said amount of Rs.5,000/- is not a sum on the larger side and nothing precluded the 2^nd respondent from stating any exaggerated amounts. The said version given by the 2^nd respondent through her learned counsel appears to be a probable and believable version as to the terms and conditions agreed to by the petitioner to the 2^nd respondent, as referred to in Annexure-II as early as on 06.10.2014. The parties are living in the immediate neighbourhood. The 2^nd respondent is an elderly senior citizen lady, aged more than 68 years. Apart from the present case, there are two other cases pending between the parties and in one such case, the 2^nd respondent herein is the de facto complainant/victim with the allegation that she has suffered fracture on her left hand on account of the alleged acts of the petitioner. In cases of

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this nature, when the parties have agreed to the settlement and the nature of the offences would come within the ambit and scope of the discretion for quashment of the impugned criminal proceedings on the ground of settlement between the parties, etc., then the courts should take a proactive stand in order to promote such settlement. The western centric legal system is primarily based on “the winner takes all and the loser loses all” kind of scenario. Presumably, this could be on account of the historical development of western civilization, which is predominantly based on the conquest approach. Whereas, the countries in the East have a different perspective and at least from the time of the enlightenment of Budha, who was called as the light of Asia, non-violence was the predominant norm and the effect of the said higher consciousness of spirituality and culture fostered by such enlightenment in India, have resulted in the historical acceptance of non-violence even by the sovereign Emperor like Ashoka, after the Kalinga War. The conquest approach of winner takes all, cannot lead to any permanent peace or harmony. As a result of the consequences of colonialism and imperialism, countries in the so called Third World countries in Afro-Asia and Latin America, are even now broadly following the civilizational norms of the Western centric countries based

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upon which the western legal system tuned to the western or Greek system of logic, is now in vogue. Unlike, the enlightenment experienced in the western countries, the enlightenment that was secured by the Eastern countries like India, was on the basis of non-violence and acceptance of the other, instead of conquest of the other. True that, on account of the historical reasons of colonialism and imperialism, we are now following the Anglo Saxon based legal system, which is broadly followed in all Commonwealth jurisdictions. But we have to bear in mind that before the conquest by the western imperial and colonial powers, this country had its own legal system. So also, before or at the time of the advent of the western system of logic based on the inductive and deductive logic developed in countries like Greece, this country had also a sophisticated epistemology in logic, which was then called as Buddhist logic or the Indian logic. Though countries like India have formally secured their political independence from the western colonial powers, the true emancipation to regain our original culture of nonviolence, etc. and to develop or foster our own legal system to be freed from the shackles of the western centric legal system may take arduous efforts and may take a very long time. But that should not prevent the legal system from ensuring that at least in some cases, the approach of

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reconciliation through conciliation and mediation is seriously endeavoured by the courts and the lawyer community. These aspects are more abundantly manifested in the modern era, when this country had obtained freedom from colonial yoke through a peaceful and nonviolent freedom struggle led by the Mahatma. Therefore, in this case, this Court is constrained to take the view that taking into account the fact that the rival parties are living in the immediate neighbourhood and as the 2^nd respondent is an elderly senior citizen aged more than 68 years and also taking into account the nature of the offences involved in this case, the Court will have to endeavour to ensure that the settlement already arrived at between the parties, is effectuated. Extra-ordinary powers conferred on this Court in terms of Sec.482 of the Cr.P.C or Articles 226 or 227 of the Constitution of India are rather discretionary in nature and there would be cases, where discretion could be refused for cogent and strong grounds. Taking into account the fact that the petitioner himself has raised the case that the parties had arrived at a settlement in this case, as reflected in Annexure-II dated 06.10.2014 and that as the 2^nd respondent has taken a very fair stand in the matter and as the other case, in which he is a de facto complainant, is the one in which allegations are disclosed about the commission of offences as

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per Sec.326 of the IPC on account of the 2^nd respondent suffering fracture on her left hand, etc., the parties should be persuaded to follow a conciliatory approach to effectuate the settlement between them. The submission made by the learned counsel for the 2^nd respondent that the amount agreed to between the parties in the settlement referred to in Annexure-II 06.10.2014 was only Rs.5,000/- appears to be broadly a probable and truthful version. The petitioner has not been able to convince this Court that the said version given by the 2^nd respondent is patently false or that the amount agreed to between the parties was only a pittance, which is much smaller than the said amount of Rs.5,000/-. Moreover, in the course of the submission on the previous occasions in this case, this Court could then convince the parties that taking into account the nature of the disputes, which had arisen between two persons living in the immediate neighbourhood in a village, the matter may be settled.

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Accordingly, it is ordered that the petitioner is given time by three months to pay the said amount of Rs.5,000/- (Rupees Five Thousand only) either in cash to the 2^nd respondent or by demand draft/cheque to the 2^nd respondent and thereafter, the petitioner may seek for quashment of the impugned criminal proceedings in this case on the ground

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of effectuation and compliance of the terms and conditions of the said settlement. This petition need not be kept pending any longer. It is for the petitioner to take note of the abovesaid scenario and then, effectuate the settlement which he himself is relying on the pleadings in the Crl.M.C.

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In case, the petitioner pays the said amount of Rs.5,000/- to the 2^nd respondent within three months, then he will be at liberty to set in motion appropriate proceedings seeking quashment of the impugned criminal proceedings on the ground of such settlement.

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The Registry may return back the certified copy of Annexure-VI final report/charge sheet to the petitioner’s counsel, if a request in that regard is made. However, the Registry will ensure that photocopies of the said document are placed in this original case file for the purpose of maintenance of records.

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With these observations and directions, the above Crl.M.C will stand disposed of.

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Sd/ALEXANDER THOMAS JUDGE

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vgd

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE I TRUE COPY OF THE PHOTOGRAPHS ANNEXURE II TRUE COPY OF THE PETITION REGISTER ANNEXURE III TRUE COPY OF THE REPORT OF THE AGRICULTURAL OFFICER DATED 13.10.2014 ANNEXURE IV TRUE COPY OF THE ORDER SHEET IN CC.NO. 2145/2014 ON THE FILE OF THE JFCM, THIRUVALLA ANNEXURE V TRUE COPY OF THE FIR IN CRIME NO. 2024/14 OF THIRUVALLA POLICE STATION ANNEXURE VI TRUE COPY OF THE CHARGE SHEET IN CC.NO. 2145/2014 ON THE FILE OF JFCM THIRUVALLA

Rajan P.B. v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Rajan P.B. v. the State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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