IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 4023 of 2008()
1. UNNIKRISHNAN, S/O. PARUKUTTY AMMA,
... Petitioner
2. SARASWATHY, D/O. DEVAKY AMMA,
Vs
1. STATE OF KERALA, REP. BY
... Respondent
2. RAVINDRAN, S/O. BALAN NAIR,
3. RAMAN NAIR, KAMANGANGATTU HOUSE,
4. RAMANI, D/O. DEVAKY AMMA,
5. SANTHA, D/O. DEVAKY AMMA,
6. SAKUNTHALA, D/O. BALAN NAIR,
7. KRISHNAKUMAR, S/O. BALAN NAIR,
For Petitioner :SRI.M.K.DILEEP KUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :28/10/2008
O R D E R
R.BASANT, J.
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Crl.M.C.No.4023 of 2008
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Dated this the 28th day of October 2008
O R D E R
The petitioners are spouses. They figure as complainant
and first accused in a prosecution for the offence punishable
under Section 494 I.P.C read with 107,109,114 and 34 I.P.C.
The crux of the allegations is that while the marriage of the first
petitioner with the second petitioner was valid and current, the
second petitioner had married again. Complaint was filed.
Cognizance was taken by the learned Magistrate and the same is
now pending before the learned Magistrate.
2. During the pendency of the proceedings, the spouses
have settled their disputes. The first petitioner/complainant has
no surviving grievance against the second petitioner herein or
against any other accused. The first petitioner wanted to report
settlement/composition before the learned Magistrate. When he
made a request to that effect, the learned Magistrate is
“reluctant” to receive the application for composition and pass
appropriate orders on such application. All the co-accused have
not entered appearance and this, according to the petitioner,
appears to be the reason why the learned Magistrate is
“reluctant” to accept the application for composition.
Crl.M.C.No.4023/08 2
3. I am unable to appreciate the contentions raised. It
has clearly been held in Baiju v. State of Kerala [2007(4)
KLT 1082] that to accept a composition, it is not necessary for
the learned Magistrate to insist on appearance of the accused
person. Composition is a unilateral act that can be effected by
the complainant and when the complainant reports composition,
if the composition is acceptable otherwise under Section 320
Cr.P.C, it is unnecessary for the learned Magistrate to
ritualistically insist on the personal presence of all the accused
persons. In a case like this, where the spouses have allegedly
settled their disputes and the complainant has compounded the
offences committed by all the accused persons, I fail to
understand why insistence must be made on the personal
presence/appearance of the accused persons. The learned
Magistrate, I have no hesitation to agree, must consider the
application for composition under Section 320 Cr.P.C on merits
whether all the accused have entered appearance or not and
whether they are represented or not. Appropriate order on
merits must be passed by the learned Magistrate.
Crl.M.C.No.4023/08 3
4. The second submission is more surprising. It is
submitted that an application for composition was filed before
the learned Magistrate. But the learned Magistrate is reluctant
to accept the application. The very question has been
considered in detail in Gopalakrishna Pillai v. District
Superintendent of Police [2008(3) KLT 80] and this court
has clearly held that any such course is unavailable to any
Magistrate. The petitioner can file the application and the
learned Magistrate must consider the same and pass appropriate
orders. The petition must either be allowed, rejected or
returned. There is no fourth course available to the learned
Magistrate – of being reluctant to receive and entertain the
application. There is nothing to show that any such application
has been filed. It is for the petitioner to file such application
now.
5. It is prayed that in the peculiar facts and
circumstances of this case composition may be accepted by this
court invoking the jurisdiction under Section 482 Cr.P.C. There
must be order and discipline in the proceedings. What can be
achieved under Section 320 Cr.P.C before the learned
Crl.M.C.No.4023/08 4
Magistrate cannot be sought to be achieved before this court by
invoking the extraordinary inherent jurisdiction under Section
482 Cr.P.C. In the absence of exceptional and compelling
reasons, this court shall not invoke the extraordinary inherent
jurisdiction. No such reasons are shown to exist at all.
6. In the result, this Crl.M.C is dismissed with the
observation that it shall be open to the petitioners to report
settlement and composition before the learned Magistrate and
thereupon the learned Magistrate must consider the application
for composition on merits, in accordance with law and
expeditiously – on the date of filing the application itself unless
there are compelling reasons.
7. Hand over copy of this order to the learned counsel
for the petitioner.
(R.BASANT, JUDGE)
jsr
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Crl.M.C.No.4023/08 6
R.BASANT, J.
CRL.M.C.No. of 2008
ORDER
09/07/2008