IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 9TH DAY OF SEPTEMBER 2016/18TH BHADRA, 1938 Crl.MC.No. 3448 of 2015 () CC.NO. 35/2014 OF CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM PETITIONER(S)/ACCUSED: 1. TATA REALTY AND INFRASTRUCTURE LTD., ELPHINESTONE BUILDING, 2ND FLOOR, 10 VEER NARIMAN ROAD, FORT MUMBAI-400 001, REPRESENTED BY SANJAY UBALE. 2. CYRUS PALLONJI MISTRY, S/O.PALLONJI SHAPOORJI MISTRY, CHAIRMAN, TATA SONS, BOMBAY HOUSE, 24, HOMI MODI STREET, MUMBAI-400 001. 3. SANJAY UBALE, MANAGING DIRECTOR AND CEO, TATE REALTY AND INFRASTRUCTURE LTD., ELPHINESTONE BUILDING, 2ND FLOOR, 10, VEER NARIMAN ROAD, FORT, MUMBAI-400 001. BY SRI.JOSEPH KODIANTHARA,SENIOR ADVOCATE ADVS. SRI.V.ABRAHAM MARKOS SRI.BINU MATHEW SRI.TOM THOMAS (KAKKUZHIYIL) SRI.ABRAHAM JOSEPH MARKOS SRI.ISAAC THOMAS SRI.NOBY THOMAS CYRIAC RESPONDENT(S)/1ST RESPONDENT/COMPLAINANT/2ND RESPONDENT/NON PARTY TO THE COMPLAINT: 1. AUGUSTUS BINU, S/O.JOSEPH, PUTHALATH HOUSE, AROOR.P.O., ALAPPUZHA-688 534. 2/- -2- CRL.MC.NO.3448/2015 2. [ENTITY], REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT BUILDINGS, ERNAKULAM, KOCHI-682 031. R1 BY SRI.S.SREEKUMAR,SENIOR ADVOCATE ADVS. SRI.M.S.UNNIKRISHNAN SRI.S.KRISHNAKUMAR SRI.SAJU THALIATH SRI.JITHIN PAUL VARGHESE SRI.K.SUNIL SRI.V.K.PRASANTH SRI.K.SHAJI ANTONY R2 BY PUBLIC PROSECUTOR SRI.M.R.DHANIL THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts Crl.MC.No. 3448 of 2015 () APPENDIX PETITIONER(S)' ANNEXURES: ANNEXURE A- CERTIFIED COPY OF THE COMPLAINT DATED 29.10.2013 IN C.C.NO.35/2014. ANNEXURE B- TRUE COPY OF THE MALAYALA MANORAMA DAILY DATED 18.08.2013. ANNEXURE C- TRUE COPY OF THE PHOTOGRAPH CAPTIONED MARINE DRIVE VIEW TAKEN BY THE COMPLAINANT. ANNEXURE D- TRUE COPY OF THE SCREEN SHOT OF THE PHOTOGRAPH CAPTIONED "MARINE DRIVE VIEW" IN THE WEBSITE WWW.WIKIPEDIA.ORG WITH THE LICENCE AND WARING TAGS. ANNEXURE E- TRUE COPY OF THE LAWYER NOTICE DATED 24.8.2013 SENT BY THE COMPLAINANT TO THE 1ST ACCUSED COMPANY. ANNEXURE F- TRUE COPY OF THE ACKNOWLEDGEMENT CARD. ANNEXURE G- TRUE COPY OF THE REPLY NOTICE DATED 23.9.2013 ISSUED BY THE 1ST ACCUSED COMPANY. ANNEXURE H- TRUE COPY OF THE SUMMARY AND FULL TEXT OF THE CREATIVE COMMONS LICENCE UNDER WHICH THE PHOTOGRAPH CAPTIONED "MARINE DRIVE VIEW" HAS BEEN RELEASED. RESPONDENT(S)' ANNEXURES: NIL /TRUE COPY/ P.S.TO JUDGE sts RAJA VIJAYARAGHAVAN.V, J Crl.M.C. No.3448 of 2015 Dated this the 9th day of September, 2016 O R D E R 1.This petition is filed under [SECTION] of the [ACT]. 2.The petitioners herein are accused Nos.1 to 3 in [CASE NUMBER] on the file of the Chief Judicial Magistrate Court, Ernakulam. The aforesaid case has arisen from Annexure-A complaint filed by the 1st respondent before the court below alleging commission of offences punishable under [SECTION] and [SECTION] of the [ACT] and also under [SECTION] of the [ACT]. 3.The prosecution allegation is that the 1st petitioner, a Public Limited Company incorporated under the [ACT], unauthorizedly used a photograph shot by the 2nd respondent and uploaded in the website www.wikipedia.org and thereafter used the same in an advertisement of their construction project by name "TRITVAM" being developed by the 1st petitioner as [CASE NUMBER] 2 the Project Manager at Kochi. According to the 1st respondent, the reproduction was made without fulfilling the conditions of the licence under which the photograph was posted in the website. The 2nd petitioner is the Chairman of Tata Sons Limited and the 3rd petitioner is the Managing Director and Chief Executive Officer of the 1st petitioner. 4.I have heard the learned Senior Counsel appearing for the petitioners, the Senior Counsel appearing for the 1st respondent as well as the learned Public Prosecutor. 5.When the matter came up for hearing, it is submitted at the Bar that the disputes have been sorted out and the parties do not wish that the criminal proceedings against the petitioners should continue any further. An affidavit has been sworn to by the 1st respondent wherein he has asserted that he has no objection in terminating the proceedings, as the disputes have been settled. 6.I have given my anxious consideration to the submissions made across the Bar and I have also gone through the materials on record. It appears that the offence is entirely personal in nature and do not affect public peace or tranquility. [CASE NUMBER] 3 In a case such as the instant one, even if the prosecution is allowed to continue, it would not serve any purpose as the possibility of conviction is remote and bleak. It can only result in putting the de facto complainant and the accused to unwanted oppression and prejudice. Settlement will augur well for the interest of the community and will enable the parties to live in peace and harmony. I am of the view that proceedings can justifiably be quashed invoking the powers of this Court under [SECTION] of the Code. In the result, this petition is allowed. All further proceedings against the petitioners now pending as [CASE NUMBER] on the file of the Chief Judicial Magistrate Court, Ernakulam are quashed. Sd/- [ENTITY] vps IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE [ENTITY], THE 22ND DAY OF SEPTEMBER 2016/31ST BHADRA, 1938 [CASE NUMBER] () AGAINST [CASE NUMBER] of J.M.F.C.-II, KOLLAM CRIME NO. 126/2009 OF KOTTIYAM POLICE STATION , KOLLAM PETITIONER(S)/2ND ACCUSED: AMEER AGED 27 YEARS, S/[ENTITY], [ENTITY], KOLLAM DISTRICT. BY ADVS.SRI.BINU GEORGE SMT.HEMALATHA RESPONDENT(S)/STATE: 1. [ENTITY] REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. [ENTITY] AGED 37 YEARS, S/O.BALAKRISHNA PILLAI B.S.SADANAM, [ENTITY], THRIKKOVILVATTOM VILLAGE KOLLAM DISTRICT. R2 BY ADV. SRI.R.RAJESH(PULLIKADA) R1 BY PUBLIC PROSECUTOR SRI. [ENTITY] THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: [CASE NUMBER] () APPENDIX PETITIONER'S ANNEXURES ANNEXURE 1 TRUE COPY OF THE FIR IN [CASE NUMBER] OF KOTTIYAM POLICE STATION. ANNEXURE 2 TRUE COPY OF THE FINAL REPORT IN [CASE NUMBER] OF KOTTIYAM POLICE STATION. ANNEXURE 3 TRUE COPY OF THE JUDGMENT IN ST 10/2010 OF THE JUVENILE JUSTICE BOARD, KOLLAM. ANNEXURE 4 AFFIDAVIT DT.20-8-2016 SWORN BY R2. RESPONDENTS' ANNEXURES: NIL TRUE COPY P.A. TO JUDGE. kp [ENTITY], J - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 5778 of 2016 - - - - - - - - - - - - - - - - Dated 22nd September, 2016 - - - - - - - - - - - - - - - - - - - - - - - - ORDER
1.This petition is filed under [SECTION] of the [ACT].
2.The petitioner is the 2nd accused in [CASE NUMBER] on the file of the Judicial Magistrate of 1st Class II, Kollam. He is proceeded against for having committed offences punishable under [SECTION], [SECTION], [SECTION], [SECTION] and 506
(ii) read with Section 34 of the [ACT]. The 2nd respondent is the de facto complainant.
3.The prosecution allegation is that on 16.2.2009 at 6.30 pm, the 1st accused and the petitioner had trespassed into the shop room of the 2nd respondent herein and 1st accused is alleged to have inflicted injuries on the forehead of the 2nd respondent with a sword. It is further alleged that the accused had abused the 2nd respondent and had also committed mischief to the tune of Rs.4,000/-.
4.The learned counsel appearing for the petitioner would submit that the 1st accused against whom overt act was alleged was a juvenile at the time of commission of offence. The case against him was proceeded with and by Annexure A3 judgment dated 16.7.2011, the juvenile was released after due admonition. It is also submitted that after Annexure A3 judgment was rendered disputes have been settled between the petitioner and 2nd respondent herein.
5.I have heard the learned counsel appearing for the petitioner, the 2nd respondent and also the learned Public Prosecutor. It is submitted by the learned counsel appearing for the party respondent that an affidavit has been sworn to by the victim completely absolving the petitioner.
6. The learned counsel appearing for the petitioner submits that in view of the compromise arrived at between the petitioner and the private respondent, the inherent power can be exercised by this Court and the entire proceedings are liable to be quashed. Reference is made to the judgment of the Apex Court in [PRECEDENT], [PRECEDENT] and [PRECEDENT] to contend that this Court will be justified in exercising inherent powers in a case of this nature to prevent abuse of the process of the court or to otherwise secure the ends of justice.
7.Per contra, the learned Public Prosecutor submits that the nature and gravity of offence are such that this Court will not be justified in exercising its discretionary powers. However, it is submitted that the petitioner is not a person with criminal antecedents.
8.I have considered the rival submissions and have taken note of the fact that the disputes have been compromised and the victims have completely absolved the petitioner. The final report also reveals that specific overt acts are levelled against the 1st accused against whom proceedings have come to a termination as is evidenced from Annexure-3 judgment. The affidavit sworn to by the party respondent makes it abundantly clear that they do not wish that the criminal proceedings against the petitioner should continue.
9.The legal position is no longer res integra that the inhereint powers of this Court enshrined under [SECTION] of the Code is distinct from the power of a criminal court to compound the offence under [SECTION] of the Code. The powers can be exercised ex debito justitiae to render real and substantial justice for the administration of which alone the courts exist. However, the plenitude of the power under [SECTION] of the Code by itself makes it obligatory for this Court to exercise the same with utmost care and caution. As held in the precedents cited above, securing the ends of justice being the ultimate guiding factor, the fact that the dispute between the offender and the victim has been settled can be taken note of by this Court and proceedings can be quashed if it ultimately be only an exercise in futility and if justice demands that the dispute between the parties is put to an end and peace is restored. As held in [PRECEDENT] (supra) this Court within the framework of its inherent power can quash the criminal proceeding if it is satisfied on the face of such settlement that there is hardly any likelihood of the offender being convicted and by not quashing the criminal proceedings, justice shall be the casuality and ends of justice shall be defeated.
In the result, this petition is allowed. Annexure-A2 Final report and all proceedings pursuant thereto against the petitioner now pending as [CASE NUMBER] on the file of the Judicial Magistrate of 1st Class II, Kollam are quashed.
[ENTITY], JUDGE kp/-23.9.16