Krishnakumar vs State Of Kerala

G. Girish, J

The accused in C.C.Nos.1419/2013 and 1054/2018 on the files of the Judicial First Class Magistrate Court, Karunagappally, has filed these petitions under Section 482 Cr.P.C to quash the proceedings in those cases.

C.C.No.1419/2013 relates to the commission of offence under Sections 323 and 498A I.P.C in connection with the alleged cruelty and physical torture meted out to the third respondent in these petitions, who is the wife of the petitioner. C.C.No.1054/2018 is in connection with the commission of the offence under Sections 452, 341, 294(b), 506(i), 323, 324, 354, 427 and 34 I.P.C in connection with the alleged act of the petitioner mounting assault upon the third respondent and her parents at the residence of the third respondent after the dissolution of the marriage between the petitioner and the third respondent consequent to a joint petition filed in accordance with the settlement arrived in mediation.

The main ground relied on by the petitioner for quashing the proceedings in both the above cases is that all the matrimonial issues between the petitioner and the third respondent, which gave rise to multiple proceedings before various courts, were agreed to be settled and withdrawn in accordance with the terms of settlement in mediation, attached to Annexure-3 decree of the Family Court, Chavara in O.P.No.336/2014, and that in violation of the specific agreement in the above regard, the third respondent refused to file compromise petition in C.C.No.1419/2013, and to give statement in accordance with the above compromise. It is also stated that the offence alleged are not attracted even if the allegations in the final reports filed in C.C.No.1419/2013 and C.C.No.1054/2018 are accepted as such.

Heard the learned counsel for the petitioner, the learned counsel for the third respondent and the learned Public Prosecutor.

Annexure-3 is the copy of the decree in O.P.No.336/2014 of the Family Court, Chavara, in a petition for recovery of money towards the value of gold ornaments. The above said case along with several other matters pending before the Family Court, Chavara and the Judicial First Class Magistrate Court, Karunagappally were referred for mediation for an amicable settlement of the issues which arose out of the marital discord between the petitioner and the third respondent. As per the terms of understanding arrived in the mediation, the petitioner and the third respondent signed the Memorandum of Agreement in mediation which was accepted by the Family Court, Chavara. The above Memorandum of Agreement forms part of Annexure-3 decree of the Family Court, Chavara. As per condition No.(10) of the Memorandum of Agreement forming part of Annexure-3, the third respondent had agreed to file a compromise petition in C.C.No.1419/2013 and M.C.No.44/2013 pending before the Judicial First Class Magistrate Court, Karunagappally, and to give statement in accordance with such compromise. Alleging violation of the above condition of the Memorandum of Agreement, the petitioner has sought the intervention of this Court to quash the proceedings in C.C.No.1419/2013 and C.C.No.1054/2018 on the files of the Judicial First Class Magistrate Court, Karunagappally.

The learned counsel for the third respondent submitted that the prayer of the petitioner in this regard cannot be allowed since it is apparent from the act of the petitioner mounting physical assault upon the third respondent and her parents leading to the institution of C.C.No.1054/2018, that it is the petitioner himself who had violated the terms of agreement in Annexure-3 decree to keep away from all future issues with the third respondent. It is thus submitted that the petitioner is not having the moral right to seek the enforcement of the agreement appended to Annexure-3 for terminating the criminal prosecution initiated against him for perpetrating violence upon the petitioner and her parents.

It has to be stated at the outset that the terms and conditions incorporated in Clause 10 of the agreement appended to Annexure-3, relating to the obligation of the third respondent to file a compromise petition and give statement in support of such compromise for the disposal of C.C.No.1419/2013 on the files of the Judicial First Class Magistrate Court, Karunagappally, cannot be considered as a valid ground to invoke the provisions of Section 482 Cr.PC to quash the proceedings in the said case. The offence under Section 498A IPC, being a non-compoundable offence, the petitioner herein who is the accused in C.C.No.1419/2013, cannot seek the enforcement of the compromise agreement to terminate the prosecution proceedings in such a case, unless it is shown that such a course is in accordance with the ardent desire of both parties to have a quietus to the pending issues between them. Nor could this Court invoke the inherent powers under Section 482 Cr.PC to wind up the prosecution in that case, since the registration of the subsequent crime against the petitioner on 27.08.2018 leading to the institution of the final report in C.C.No.1054/2018 itself would reveal that the issues between the petitioner and the third respondent are still subsisting without any respite, and that the petitioner is still said to have been resorting to physical violence upon the third respondent.

The learned counsel for the petitioner relied on the dictum laid down by a Division Bench of this Court in Benny v. Mini [2021(2)KLJ 190] and argued that the third respondent cannot withdraw from her undertaking in the agreement attached to Annexure-3 to file a compromise in C.C.No.1419/2013 and to give a statement in accordance with such compromise for the disposal of the said case. I find no merit in the above argument since the dictum laid down in Benny v. Mini (supra) is not at all related to an agreement to withdraw a criminal case of matrimonial cruelty perpetrated by the husband upon his former wife. The law laid down by this Court in the said decision, is in connection with the promissory estoppel which forbids one of the spouses from unilaterally withdrawing the consent for divorce after receiving all the benefits from her counterpart in accordance with the terms of agreement arrived on mediation. The above decision has no applicability in this case where the issue to be resolved is the scope of invoking Section 482 Cr.PC to quash the criminal case between the parties, that too, when one of the parties is still aggrieved by the alleged acts of continuing violence perpetrated by the other party.

The final reports filed in both the above criminal cases would reveal that there are materials collected by the investigating agency by way of the statements of the victim and other witnesses, pointing to the criminal acts attributed to the petitioner. That being so, it cannot be said that the prosecution records in C.C.Nos.1419/2013 & 1054/2018 will not constitute the offense alleged in the final reports filed in those cases. It is for the Trial Court to decide after evaluating the evidence adduced by the prosecution, as to whether the offence alleged against the petitioner has been proved. At any rate, the prayer for quashing the proceedings in these cases is devoid of merit, and hence, cannot be allowed.

In the result, both the petitions are hereby dismissed.