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Tomy Mathew Vs. State of Kerala - Court Judgment

LegalCrystal Citation
CourtKerala High Court
Decided On
Judge
AppellantTomy Mathew
RespondentState of Kerala
Excerpt:
.....petitioners/accused1to13 ------------------------------------------------ 1. tomy mathew, aged59years, s/o. late sri.a.j.mathew, arambankudy house, kuthukuzhy p.o., kothamangalam, pin-686 691.2. subramanian @ chami, aged36years, s/o. kuttan, panagattu house, nadodipalam bhagath, chelad kara, malipara p.o., pindimana village, pin-686 681.3. bobin george, aged36years, s/o. george, parayil house, ramalloor, kothamangalam p.o., pin-686 691.4. jeevan unni, aged26years, s/o. unni, palakuzhi puthenpurayil, ambalappady bhagom, karukadom p.o., kothamangalam, pin-686 691.5. dileep a.v., aged32years, s/o. vijayan, ammaparambil house, minipady, chelad p.o., kothamangalam, pin-686 681.6. rajeev, aged32years, s/o. kunju, kallingal parambil house, ramalloor kara, kothamangalam village,.....
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN FRIDAY, THE11H DAY OF JULY201420TH ASHADHA, 1936 Crl.MC.No. 3404 of 2014 (E) -------------------------------------- [S.C.NO.375/2012 OF THE ASST.SESSION'S COURT, MUVATTUPUZHA, CRIME NO. 16/2010 OF KOTHAMANGALAM POLICE STATION] ........... PETITIONERS/ACCUSED1TO13 ------------------------------------------------ 1. TOMY MATHEW, AGED59YEARS, S/O. LATE SRI.A.J.MATHEW, ARAMBANKUDY HOUSE, KUTHUKUZHY P.O., KOTHAMANGALAM, PIN-686 691.

2. SUBRAMANIAN @ CHAMI, AGED36YEARS, S/O. KUTTAN, PANAGATTU HOUSE, NADODIPALAM BHAGATH, CHELAD KARA, MALIPARA P.O., PINDIMANA VILLAGE, PIN-686 681.

3. BOBIN GEORGE, AGED36YEARS, S/O. GEORGE, PARAYIL HOUSE, RAMALLOOR, KOTHAMANGALAM P.O., PIN-686 691.

4. JEEVAN UNNI, AGED26YEARS, S/O. UNNI, PALAKUZHI PUTHENPURAYIL, AMBALAPPADY BHAGOM, KARUKADOM P.O., KOTHAMANGALAM, PIN-686 691.

5. DILEEP A.V., AGED32YEARS, S/O. VIJAYAN, AMMAPARAMBIL HOUSE, MINIPADY, CHELAD P.O., KOTHAMANGALAM, PIN-686 681.

6. RAJEEV, AGED32YEARS, S/O. KUNJU, KALLINGAL PARAMBIL HOUSE, RAMALLOOR KARA, KOTHAMANGALAM VILLAGE, KOTHAMANGALAM P.O, PIN-686 691.

7. BIJU, AGED34YEARS, S/O. PAULOSE, VELAMMAVUDIYIL, KARINGAZHA KARA, KOTHAMANGALAM VILLAGE, KOTHAMANGALAM P.O, PIN-686 691.

8. MIROSH, AGED27YEARS, S/O. MATHEW, PALAMOOTTIL, NADODIPALAM BHAGOM, CHELADU KARA, CHELADU P.O., PINDIMANA VILLAGE, PIN-686 681. Prv. CRL.M.C. NO.3404/2014 - E:

9. SUMESH, AGED30YEARS, S/O. KUTTAPPAN, MALIYEKKAMATTATHIL, GANDHINAGAR COLONY, NEAR POLYTECHNIC, CHELADU KARA, CHELADU P.O, PINDIMANA VILLAGE, PIN-686 681.

10. SIVAN T.A, AGED38YEARS, S/O. KUNJAPPAN, THEKKEKARAKUDY, CHELAD P.O, MINIPADY, KOTHAMANGALAM VILLAGE, PIN-686 681.

11. BINISH BABY, AGED23YEARS, S/O. BABY, KANJIRATHINGAL, NADODIPALAM COLONY, CHELADU KARA, MALIPARA P.O., PINDIMANA VILLAGE, PIN-686 681.

12. GEORGE, AGED45YEARS, S/O. PAULOSE, PARUTHIYIL, VETTAMPARA KARA, VETTAMPARA P.O., PINDIMANA VILLAGE, PIN-686 681.

13. JOY @ JOY KUNJU, AGED42YEARS, S/O. ELIKUTTY, KURUTTUKULAM, KARINGAZHA BHAGOM, RAMALLOOR KARA, KOTHAMANGALAM P.O, KOTHAMANGALAM VILLAGE, PIN-686 691. BY ADVS.SRI.THOMAS M.JACOB, SRI.T.R.JERRY SEBASTIAN. RESPONDENTS/STATE/COMPLAINANT: -------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.

2. SOMAN, AGED43YEARS, S/O. VARKEY, KANDATHIL DESHIYAMUKKU BHAGOM, THRIKKAKARA KARA, VAZHAKKALA VILLAGE, ERNAKULAM, PIN-682 021. R1 BY PUBLIC PROSECUTOR SMT. S. HYMA, R2 BY ADV. SRI.P.M.MOHAMMED SHIRAZ. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON1107-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Prv. CRL.M.C. NO.3404/2014 - E: APPENDIX PETITIONERS' ANNEXURES: ANNEXURE A1 : CERTIFIED COPY OF F.I.R IN CRIME NO.16/2010 OF KOTHAMANGALAM POLICE STATION TOGETHER WITH FIRST INFORMATION STATEMENT. ANNEXURE A2 : CERTIFIED COPY OF FINAL REPORT FILED BY THE POLICE IN CRIME NO.16/2010 OF KOTHAMANGALAM POLICE STATION. ANNEXURE A3 : CERTIFIED COPY OF C.M.P NO.3459/2010 FILED IN CRIME NO.16/2010 OF KOTHAMANGALAM POLICE STATION, BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KOTHAMANGALAM. ANNEXURE A4 : CERTIFIED COPY OF ORDER

DTD.3.8.2010 IN C.M.P NO.3453/2010 OF THE JUDICIAL FIRST CLASS - MAGISTRATE COURT, KOTHAMANGALAM. RESPONDENTS' ANNEXURES: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. K. Ramakrishnan, J.

============================== Crl.M.C.No.3404 of 2014 ============================== Dated this, the 11th day of July, 2014. ORDER

This is an application filed by the petitioners who are accused in S.C.No.375/12 on the file of the Assistant Sessions Court, Muvattupuzha to quash the proceedings on the basis of settlement under Section 482 of Code of Criminal Procedure.

2. It is alleged in the petition that petitioners are arrayed as accused in S.C.No.375/2012 pending before Assistant Sessions Court, Muvattupuzha. The above case was originated on the basis of a statement given by the de facto complainant who was the contractor of the brother of the first accused against the petitioners alleging offences under Sections 143, 147, 148, 120B, 109, 447, 324, 326, 308 and Section 149 of Indian Penal Code and Section 3(a) and 5 of Explosive Substance Act. There was a boundary dispute between the first accused and his brother and when the brother of the first accused was about to construct a building in the property with the help of the contractor, there was some dispute arose between the contractor and his employees and Crl.M.C.No.3404 of 2014 :

2. : the petitioners in which the de facto complainant sustained some injuries. Now, the matter has been settled between the parties. On account of the settlement, the parties have arrived at a consensus that the prosecution need not continue and the de facto complainant also has no grievance against the petitioners now. In view of the settlement, there is no possibility of any conviction as the witnesses will not support the case of the prosecution. Since some of the offences are non-compoundable in nature, they could not file an application for compounding before the court below. So, the petitioners have no other remedy to approach this court seeking the following relief: "To quash all proceedings pursuant to Annexure A-1 FIR and Annexure A-2 Final Report in S.C.No.375/2012 of Assistant Session's Court, Muvattupuzha." 3. Second respondent, the de facto complainant appeared through Counsel and submitted that he has no objection in allowing the application as the matter has been settled between the parties in the mediation held of family members of both parties and he had filed an affidavit stating these facts as well. Crl.M.C.No.3404 of 2014 :

3. :

4. The Counsel for the petitioners submitted that in view of the settlement, there is no possibility of conviction and so, he prayed for allowing the application.

5. The learned Public Prosecutor, on instructions, submitted that there is no other case against the petitioners and the incident occurred due to some boundary dispute between the brothers, but opposed the application that serious offences are incorporated.

6. It is an admitted fact that on the basis of the statement given by the second respondent as de facto complainant, Crime No.16/10 of Kothamangalam Police Station was registered against one named person and other 10 identifiable persons originally alleging offences under Sections 143, 147, 148, 324, 308 read with Section 149 of Indian Penal Code and Section 3(a) of Explosive Substance Act. After investigation, final report was filed against the present petitioners alleging the above said offences and also Section 326, 120B, 447, 109 of Indian Penal Code and Section 5 of the Explosive Substance Act as well. After committal, the case is now pending before the Assistant Sessions Court, Muvattupuzha as S.C.No.375/2012. It is seen from the allegations itself that Crl.M.C.No.3404 of 2014 :

4. : the de facto complainant is none other than the contractor of the brother of the first accused and there were property dispute between the brothers and apprehending trespass into the property while construction made in the property of the brother of the first accused, there was some incident occurred between de facto complainant and his labourers and the workers of the first accused. Now, the dispute between the brothers have been settled due to the intervention of family members and on account of the settlement, the relationship has been restored in the family. On account of the settlement, CW1 the de facto complainant, the contractor of the brother of the first accused also decided to withdraw the case as it was due to that dispute that the incident happened and he wants the prosecution to set in rest in order to promote the harmony that has been brought in the family on account of the settlement. As directed by this court, the learned Public Prosecutor obtained instructions from the concerned police station that on account of the settlement, the original relationship has been restored between the brothers and there was no dispute now subsisting between them and also the de facto complainant and others. So, in view of the above settlement, there is no possibility of conviction in this Crl.M.C.No.3404 of 2014 :

5. : case as neither the de facto complainant nor his witnesses who are none other than his employees are likely to support the case of the prosecution. Further, if a case has been registered on the basis of some family dispute arising out of a property dispute and if it has been settled between the parties which resulted in harmony in the family, then, court must always honour such settlement and allow the parties to have peaceful life by quashing the proceedings invoking the discretionary power under Section 482 of Code of Criminal Procedure.

8. Further, in the decision reported in Gian Singh V. State of Punjab 2012(4) KLT108(SC), the Hon'ble Supreme Court has held that in family disputes or property disputes, if the parties have settled their issues due to the intervention of well wishers and family members and does not want to proceed with the criminal prosecution initiated, then that must be honoured and the prosecution has to be quashed invoking the power under Section 482 of the Code of Criminal Procedure.

7. In view of the dictum laid down in the above decision and also considering the fact that it was a property dispute between the brothers which resulted in the incident and Crl.M.C.No.3404 of 2014 :

6. : registration of the crime and filing of final report and that dispute has been resolved due to the intervention of family members and friends of both the parties and the family relationship has been restored and in view of the settlement, the possibility of conviction will be remote, this court feels that it is a fit case where the power under Section 482 of Code of Criminal Procedure can be invoked to quash the proceedings to promote the settlement and bring harmony that has been restored in the family and pendency of this case should not be a hurdle for the same. So, the application is allowed and further proceedings in S.C.No.375/12 (Crime No.16/10 of Kothamangalam Police Station) pending before Assistant Sessions Court, Muvattupuzha as against the petitioners is quashed. Office is directed to communicate this order to the concerned court immediately. Sd/- K.Ramakrishnan, Judge. Bb [True copy] P.A to Judge


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