IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 35065 of 2008(Y)
1. M.KUNHABDULLA, S/O.LATE MOIDEEN.M,
... Petitioner
Vs
1. N.K.FOUSIYA, D/O.MOHAMMAD KUNJI,
... Respondent
2. THE HONOURABLE JUDICIAL FIRST CLASS
For Petitioner :SRI.K.P.RAMACHANDRAN
For Respondent :SRI.K.P.HARISH
The Hon'ble MR. Justice R.BASANT
Dated :09/01/2009
O R D E R
R. BASANT, J.
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W.P.C.No. 35065 of 2008 Y
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Dated this the 9th day of January, 2009
JUDGMENT
The petitioner is the second accused in a prosecution under
Section 498A I.P.C. Cognizance has been taken on the basis of
the final report submitted by the police after due investigation.
Altogether there are three accused persons. The first accused is
the brother of the petitioner and he is the husband of the defacto
complainant. The sister of the petitioner is arrayed as the third
accused. Cognizance has been taken. Trial is in progress. At
this juncture the petitioner has come before this Court to contend
that the disputes between the parties have really been settled and
there is an agreement to withdraw, settle and compound this
pending prosecution under Section 498A I.P.C. The petitioner
relies on the agreements allegedly executed between the first
accused and his wife and also certain documents to prove
payment of amounts.
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2. The defacto complainant/wife has appeared before this Court
through counsel. The counsel contends that there has been no
bonafide or genuine agreement at all. The documents relied on by the
petitioner are not true, just or genuine. They have not been entered
into voluntarily. There has been no real settlement of the disputes. In
these circumstances, on the basis of the alleged and disputed
settlement/agreement proceedings may not be quashed, submits the
counsel for the respondent. The counsel for the respondent/defacto
complainant further submits that the trial has already commenced and
has reached an advanced stage. It is not necessary at this juncture to
interfere with the trial that is already in progress.
3. Arguments have been heard. The short question is whether
there has been a true, valid, genuine and truthful agreement. Even if
such agreement is there, the offence under Section 498A I.P.C. being
non-compoundable, the petitioner cannot on the basis of such an
agreement alone pray for quashing of proceedings. Of course the
decision in B.S. Joshi v. State of Haryana (AIR 2003 SC 1386)
held that if the court is satisfied that there has been a genuine and
harmonious settlement, powers under Article 226 of the Constitution
W.P.C.No. 35065 of 2008
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or Section 482 Cr.P.C. can be invoked to quash the proceedings.
4. In the instant case, there is dispute as to whether the parties
have settled their differences as a matter of fact. The petitioner relies
on certain documents. The respondent/defacto complainant denies the
same. At any rate, I am not satisfied on the basis of the disputed
assertion that the disputes have been settled. It is not necessary for me
to invoke the dictum in B.S. Joshi (supra) and quash the proceedings
using the powers under Article 226 of the Constitution. Whether there
has been a proper and genuine settlement of the dispute or not cannot
certainly be decided in proceedings under Article 226 of the
Constitution when the rival contestants are taking diametrically
opposing stand. In any view of the matter, I am satisfied that powers
under Article 226 of the Constitution does not deserve to be invoked.
This Writ Petition is accordingly dismissed.
(R. BASANT)
Judge
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