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2024 DIGILAW 1479 (KER)

Jaleel, S/o Kunhabdulla v. State Of Kerala

2024-11-14

A.BADHARUDEEN

body2024
ORDER : This Criminal Miscellaneous Case has been filed under Section 428 of the Code of Criminal Procedure, 1973 seeking the following prayers: “i. To quash Annexure A4 Final Report dated 16.02.2027 in CC No.956/2022 on the files of Judicial First Class Magistrate Court-I, Nadapuram, Kozhikode District in Crime No.920/2016 of Kuttiady Police Station, Kozhikode District. ii. To acquit the accused in CC No.956/2022 on the files of Judicial First Class Magistrate Court-I, Nadapuram, Kozhikode District in Crime No.920/2016 of Kuttiady Police Station, Kozhikode District. iii. Issue any other order or direction, which this Hon'ble Court may deem fit and proper from time to time for the petitioner to attain the ends of justice.” 2. Heard the learned counsel for the petitioner, the learned counsel for the defacto complainant/3rd respondent and the learned Public Prosecutor. 3. While seeking quashment of the proceedings alleging commission of offences punishable under Sections 498-A, 406 and 420 read with Section 34 of the Indian Penal Code, 1860, by the 1st accused/petitioner herein, the learned counsel for the petitioner given emphasis to Annexure-A2 Mediation Agreement executed in between the 3rd respondent/de facto complainant who is the petitioner in O.P.625/2016 before the Family Court, Vadakara and respondents 2 to 5 therein. The accused in the present crime are respondents 2 to 5 in the divorce O.P and the 1st respondent therein is the 1st accused in this crime. 4. According to the learned counsel for the petitioner, O.P. 625/2016 was settled in terms of the Mediation Agreement (Annexure-A2) where by it was agreed to convey property having an extent of 4.86 cents along with the house therein in favour of Mohammed Niaz, Mohammed Rihan, the children of the 1st accused and the de facto complainant, by the 2nd respondent and in return the de facto complainant agreed to give up her claim in the O.P 625/2016 to the tune of Rs.18,75,000/-. According to the learned counsel for the petitioner, now the property was conveyed as agreed upon and the same is admitted by the de facto complainant also. According to the learned counsel for the petitioner, now the property was conveyed as agreed upon and the same is admitted by the de facto complainant also. Adverting to Clause No.6, in Annexure-A2 agreement, the learned counsel for the petitioner argued that as per Clause No.6, the de facto complainant agreed to do the needful to exonerate accused Nos.1 to 5 in this crime, specifying them as respondents 1 to 5 in Crime No.960/2016 of Kuttiady Police Station (correct No. is 920/2016) as against respondents 1 to 5 and the 1st respondent is the 1st accused. 5. When quashment is sought for, the 3rd respondent opposed the same and the learned counsel for the 3rd respondent zealously argued that though as per Annexure-A2 agreement, O.P 625/2016 was disposed of, the maintenance claims pertaining to the de facto complainant and children are not settled and the same still survives. Therefore, only after settling those claims also, Clause No.6 is liable to be complied and therefore based on Clause No.6 of the Mediation Agreement, quashment sought for could not be considered. 6. According to the learned counsel for the de facto complainant/3rd respondent herein, the substractum of the dispute in between the petitioner and the de facto complainant is still subsisting and therefore quashment merely on the basis of Clause No.6 in Annexure-A2 Mediation Agreement is liable to fail. 7. Addressing the rival contentions, it is not in dispute that the de facto complainant herein, who is the petitioner in O.P 625/2016 and respondents 2 to 5 therein/accused 2 to 5 in the instant crime, admittedly executed Annexure-A2 Mediation Agreement and in terms thereof, the O.P was disposed of as under. “Matter settled in mediation and agreement incorporating terms of settlement filed. Same received and recorded and O.P allowed in terms of agreement of settlement which shall form part of this Order.” Clause No.6 in Annexure-A2 order is as under; 8. On reading the terms in Annexure-A2, it was agreed by the de facto complainant that, on compliance of Clause Nos. 1 to 5 in Annexure-A2; she would do the needful to exonerate accused Nos. 1 to 5 from the crime. As of now, the de facto complainant admits that Clause Nos.1 to 5 were complied by the other side. On reading the terms in Annexure-A2, it was agreed by the de facto complainant that, on compliance of Clause Nos. 1 to 5 in Annexure-A2; she would do the needful to exonerate accused Nos. 1 to 5 from the crime. As of now, the de facto complainant admits that Clause Nos.1 to 5 were complied by the other side. Thus admittedly, Clause Nos.1 to 5 were complied and what remains to be complied is Clause No.6 by the de facto complainant/3rd respondent. It is true that even after the agreement executed on 24.08.2017, the trial court proceeded with trial in C.C.No.976/2017 as against accused Nos. 2 to 5, and for want of evidence to prove the allegation, they were acquitted. 9. As pointed out by the learned counsel for the petitioner, in the judgment the learned Magistrate observed that while giving evidence as PW1, the de facto complainant stated that the 1st accused subjected her to cruelty demanding gold and money. The question to be considered is whether the de facto complainant is bound to obey Clause No.6 in Ext.A2 since the other conditions complied by the other side as agreed upon. In fact, in Clause No.6, nothing stated that only after settling the claim of maintenance etc. the de facto complainant would do the needful to exonerate the accused from criminal prosecution and the term agreed upon is that on complying Clause Nos.1 to 5, necessary steps to exonerate the accused from criminal prosecution would be done by the de facto complainant. Since Clause Nos. 1 to 5 have been complied there is no justification for the de facto complainant/3rd respondent to contend against Clause No.6 merely on the submission that maintenance claims are subsisting. If Annexure-A2 does not cover the claims maintenance that is a matter to be decided independently as per law and merely for the said reason the de facto complainant could not retract from Clause No.6 and she is bound by the terms thereof. The de facto complainant could not approbate (accept) and reprobate (deny) the terms of Annexure-A2, at the same time. Law does not permit a person to elect between Clauses of a Compromise Agreement and accept the Clauses favourable to him and deny the Clauses which are adverse to him. The de facto complainant could not approbate (accept) and reprobate (deny) the terms of Annexure-A2, at the same time. Law does not permit a person to elect between Clauses of a Compromise Agreement and accept the Clauses favourable to him and deny the Clauses which are adverse to him. Once a person accepts some Clauses in a compromise, he is bound to accept the other Clauses, which are adverse to him and comply the same; he cannot be 'hot' and 'cold' at a time. In the instant case, no challenge against Annexure-A2 so far raised, though it was executed on 24.08.2017 and the 3rd respondent is bound by Annexure-A2 and Clause No.6 thereof. Therefore, as per Clause No.6 of Annexure-A2, the quashment prayer is liable to succeed. Accordingly this petition is allowed. Annexure-A4 Final Report and all further proceedings in C.C.No.956/2022 on the files of the Judicial First Class Magistrate Court-I, Nadapuram arose out of Crime No.920/2016 of Kuttiady Police Station, Kozhikode against the petitioner/1st accused stand quashed.