Court No. - 49
Case :- APPLICATION U/S 482 No. - 46315 of 2018 Applicant :- Ajay Singh Alias Pratap And 2 Others Opposite Party :- State Of Up And Another Counsel for Applicant :- Satya Prakash Singh Counsel for Opposite Party :- G.A.
Hon'ble Vivek Chaudhary,J.
Heard counsel for the petitioners, learned A.G.A for the State and perused the record.
This petition has been filed for quashing the charge sheet no.1 of 2018 dated 31.3.2018 and cognizance/ summoning order dated 31.5.2018 and also quash the further proceeding of Case No. 16856 of 2018 (State Vs. Ajay Singh and others) under Section 498-A, 323, IPC and 3/4 D.P. Act, Police Station Mahila Thana, District Ghaziabad arising out of Case crime no.
9 of 2018 pending before the Additional Chief Judicial Magistrate-VIII, Ghaziabad.
It is the submission of learned counsel for the petitioners that parties have entered into a compromise and filed mutual divorce petition before the Judge Family Court Ghaziabad. it is submitted by the learned counsel for the petitioners that the petitioners have already paid Rs. 3,00,000/-. A photo copy of the draft has been annexed as annexure-8 to the petition. The remaining amount to the tune of Rs. 2,75,000/- shall be paid by the petitioners to OP No. 2 on second motion of the divorce.
Considering the facts and circumstances of the case and submissions made by the learned counsel for the petitioners and submissions made by the learned counsel for O.P.No. 2, it appears that it is a matrimonial dispute, both husband and wife have decided to live separately by filing mutual divorce petition, they have settled their dispute and O.P. No. 2 does not want to prosecute the petitioners, in such a circumstances there is no likelihood of conviction of the petitioners, in case they are tried by the trial court, the trial of the petitioners shall be a futile exercise, it shall not serve any purpose and there would no chance of conviction. In such circumstances the Supreme Court's decision in the case of B.S. Joshi and another Versus State of Hariyana and another (2003) (4) S.C.C. 675 in which similar circumstances have been considered which read as under :
9. The High Court has also relied upon the decision in case of Surendra Nath Mohanty case for the proposition that offence declared to be non-compoundable cannot be compounded at all even with the permission of the court. That is of course so. The offences which can be compounded are mentioned in Section 320. Those offences which are not mentioned therein cannot be permitted to be compounded. In Mohanty case the appellants were convicted by the trial court for offence under section 307. The High Court altered the conviction of the appellants and convicted them for offence under Section 326 and imposed sentence of six months. The trial court had sentenced the appellants for a period of five years' RI. The application for compounding was, however, dismissed by the High Court. This Court holding that the offence for which the appellants had been convicted was non-compoundable and, therefore, it could not be permitted to be compounded but considering that the parties had settled their dispute outside the court, the sentence was reduced to the period already undergone. It is, however, to be borne in mind that in the present case the appellants had not sought compounding of the offences. They had approached the Court seeking quashing of FIR under the circumstances abovestated.
10. In State of Karnataka Vs. L. Muniswamy considering the scope of inherent power of quashing under section 482, this Court held that in the exercise of this wholesome power, the High Court is entitled to quash proceedings if it comes to the conclusion that the ends of justice so require. It was observed that in a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice and that the ends of justice are higher than the ends of mere law though justice had got to be administered according to laws made by the legislature. This Curt said that the compelling necessity for making these observations is that without a proper realization of the object and purpose of the provisions which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction. On facts, it was also noticed that there was no reasonable likelihood of the accused being convicted of the offence. What would happen to the trial of the case where the wife does not support the imputations made in the FIR of the type in question. As earlier noticed, now she has filed an affidavit that the FIR was registered at her instance due to temperamental differences and implied imputations. There may be many reasons for not supporting the imputations. It may be either for the reason that she has resolved disputes with her husband and his other family members and as a result thereof she has again started living with her husband with whom she earlier had differences or she has willingly parted company and is living happily on her own or has married someone else on the earlier marriage having been dissolved by divorce on consent of parties or fails to support the prosecution on some other similar grounds. In such eventuality, there would almost be no chance of conviction would it then be proper to decline to exercise power of quashing on the ground that it would be permitting the parties to compound non compoundable offences? The answer clearly has to be in the "negative" It would, however, be a different matter if the High Court on fact declines the prayer for quashing for any valid reasons including lack of bonafides.
11. In Madhavao Jiwajirao Scindia Vs. Sambhajirao Chandrojirao Angre it was held that while exercising inherent power of quashing under section 482, it is for the High Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. Where, in the opinion of the court, changes of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may, while taking into consideration the special facts of a case, also quash the proceedings.
12. The special features in such matrimonial matters are evident. It becomes the duty of the court to encourage genuine settlements of matrimonial disputes.
13. The observations made by this Court, though in a slightly different contest, in G.V. Rao Vs. LH.V. Prasad are very apt for determining the approach required to be kept in view in a matrimonial dispute by the courts. It was said that there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their" Young" days in chasing their" case" in different courts.
The view taken by the Hon'ble Supreme Court in the above mentioned case, is applicable in this case also. Therefore, to meet the ends of justice the proceedings arising out of under sections 498-A 323, read with section ¾ of the D.P. Act arising out of case crime no. 9 of 2018 P.S. Mahila Thana district Ghaziabad pending in the court of learned Additional Chief Judicial Magistrate VIII are hereby quashed.
Accordingly this petition is allowed.
Order Date :- 19.12.2018 N.A.
(Vivek Chaudhary,J.)