Court No. - 88
Case :- APPLICATION U/S 482 No. - 18626 of 2016 Applicant :- Devesh Kumar And 3 Ors Opposite Party :- State Of U.P. And 2 Ors Counsel for Applicant :- Prem Shankar,Prem Prakash,Raj Kumar Tiwari,Vinod Singh Counsel for Opposite Party :- G.A.,Yadvendra Singh
Hon'ble Vipin Chandra Dixit,J.
List revised. No one is present on behalf of opposite party nos.2 and 3.
Supplementary affidavit filed today by learned counsel for applicants, is taken on record.
Heard Sri Shiv Sharan Tripathi, learned counsel for applicants, learned A.G.A. for the State and perused the record.
The present application U/s 482 Cr.P.C. has been filed for quashing the Charge- sheet No.20 of 2016 dated 19.1.2016, under Sections 498A, 323, 504, 506 I.P.C. and Section 3/4 D.P. Act, arising out of Case Crime No.731 of 2015, P.S. Quarshi, District Aligarh in Criminal Case No.4750 of 2016 (State Vs. Devendra Kumar and others) pending in the court of C.J.M., Aligarh.
It is submitted by learned counsel for applicants that it was a matrimonial dispute between the parties and the matter was referred to Mediation and Conciliation Centre, High Court, Allahabad vide order dated 9.6.2016. Since the parties were not willing for mediation and as such no agreement was taken place between the parties and the report of Mediation and Conciliation Centre dated 22.10.2016 is on record that parties are not willing for the mediation. Thereafter vide order dated 21.3.2017 the petition on behalf of applicant no.1 Devesh Kumar, who is husband, was disposed of and he was directed to appear before the court below and apply for bail. So far as applicants no.2 to 4 are concerned, the interim protection was granted that no coercive action shall be taken against them. In pursuance of order dated 21.3.2017 the applicant no.1 had appeared before the court below and he was granted bail. The applicant no.1 had moved an application for discharge which was rejected by the trial court. The order rejecting discharge was again challenged by the applicant no.1 by means of application U/s 482 Cr.P.C. No.29625 of 2019 and the Hon'ble Court vide order dated 1.8.2019 again send the matter to Mediation and Conciliation Centre, High Court, Allahabad. Both the parties (husband and wife) had appeared before the Mediation Centre and settled their dispute amicably and an agreement has taken place on 10.1.2020. Parties were not ready to reunite and it was agreed between the parties that they file an application for divorce on mutual consent under Section 13 B of Hindu Marriage Act before the Family Court at Aligarh. Applicant no.1 was also agreed to pay Rs.11,00,000/- as permanent alimony to opposite party no.3 (wife) in two instalments. It was also agreed between the parties that all the civil and criminal cases filed against each other will be withdrawn by respective parties.
In pursuance of agreement dated 10.1.2020, a divorce petition was filed being Divorce Petition No.19 of 2020 which was decreed on 11.9.2020. Copy of judgment passed in the petition under Section 13 B of Hindu Marriage Act has been annexed as Annexure S.A.-3 to the supplementary affidavit.
It is submitted by learned counsel for applicants that applicant no.1 had paid Rs.11,00,000/- to opposite party no.3 as permanent alimony and divorce petition had already been decreed and now there is no dispute between husband and wife and the proceeding of present case may be quashed.
Learned A.G.A. has no objection of the aforesaid prayer.
Hon'ble Apex Court in the case of Gian Singh vs. State of Punjab (2012) 10 SCC 303 has laid down that High Court may quash proceedings where the parties have entered into compromise particularly in the matters of Civil nature, matrimonial relating to dowry and family dispute etc. which are of private and personal nature. Relevant paragraph Nos. 58 and 61 are quoted below:-
"58. Where High Court quashes a criminal proceeding having regard to the fact that dispute between the offender and victim has been settled although offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrong doing that seriously endangers and threatens well-being of society and it is not safe to leave the crime- doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without permission of the Court. In respect of serious offences like murder, rape, dacoity, etc; or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between offender and victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to victim and the offender and victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or F.I.R if it is satisfied that on the face of such settlement, there is hardly any likelihood of offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard-and-fast category can be prescribed."
"61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."
Subsequently, in Narendra Singh Vs. State of Punjab (2014) 6 SCC 466, after considering the decision in Gian Singh Vs. State of Punjab (2012) 10 SCC 303, in para 29, the Apex court held as under:
"29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:
29.1. Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.
29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:
(i) ends of justice, or
(ii) to prevent abuse of the process of any court.
While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.
29.3. Such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for the offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.
29.4. On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.
29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.
29.6. Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore are to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used, etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship.
29.7. While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge-sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime."
Considering the aforesaid facts as well as law settled by Hon'ble Apex Court, since the present matter arose out of matrimonial dispute in which parties have entered into a compromise and a divorce petition was filed with mutual consent and was decreed, and as such, since there is no dispute between the parties and both the parties have settled their dispute amicably, the proceedings in respect of applicant nos.2, 3 and 4 is liable to be quashed. So far as applicant no.1 Devesh Kumar is concerned, this petition had already been dismissed on his behalf and he has already challenged the order rejecting discharge in other petition being Application U/s 482 Cr.P.C. No.29625 of 2019 and he may seek proper remedy in that petition.
Therefore, present Application U/S 482 Cr.P.C. is allowed and entire proceedings of Criminal Case No.4750 of 2016 (State Vs. Devendra Kumar and others), arising out of Case Crime No.731 of 2015, under Sections 498A, 323, 504, 506 I.P.C. and Section 3/4 D.P. Act, P.S. Quarshi, District Aligarh pending in the court of C.J.M., Aligarh, are hereby quashed in respect of applicant no.2 Unnami Singh, applicant no.3 Shashi Bala and applicant no.4 Smt. Ranjana.
Order Date :- 22.9.2021 Kpy