Court No. - 83
Case :- APPLICATION U/S 482 No. - 4716 of 2021 Applicant :- Dharampal And Another Opposite Party :- State Of U.P And Another Counsel for Applicant :- Som Veer Counsel for Opposite Party :- G.A.
And Case :- APPLICATION U/S 482 No. - 15401 of 2020 Applicant :- Sanjeev Kumar And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Som Veer Counsel for Opposite Party :- G.A.,Surendra Kumar
Hon'ble Rajeev Misra,J.
Heard Mr. Som Veer, learned counsel for applicants, learned A.G.A. for State and Mr. Surendra Kumar, Advocate, who has put in appearance on behalf of opposite party-2 by filing his vakalatnamas in Court today which are taken on record.
Supplementary affidavit filed by learned counsel for applicants in Criminal Misc. Application No.15401 of 2020 in Court today is also taken on record.
Perused the record.
These applications under Section 482 Cr.P.C. have been filed challenging entire proceedings of Criminal Case No.1497 of 2009, (State Vs. Sanjeev and Others) arising out of Case Crime No.0094 of 2009, under Sections- 498A, 323, 504, 506 I.P.C. and Sections- 3/4 D.P. Act, Police Station- Modi Nagar, District- Ghaziabad, now pending in the court of Additional Chief Judicial Magistrate V, Ghaziabad.
Record shows that in respect of an incident which is alleged to have occurred on 27.06.2004, first informant/opposite party-2, Smt. Manju lodged a delayed F.I.R. dated 12.02.2009, which was registered as Case Crime No.0094 of 2009, under Sections- 498A, 323, 504, 506 I.P.C. and Sections- 3/4 D.P. Act, Police Station- Modi Nagar, District- Ghaziabad. In the aforesaid F.I.R., six persons, namely, Sanjeev Kumar, Dharampal Singh, Smt. Jayvanti, Smt. Poonam, Rajeev Singh and Km. Taruna have been nominated as named accused.
Subsequent to registration of afore-mentioned F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. During course of investigation, Investigating Officer examined first informant/opposite party-2 and other witnesses in terms of Section 161 Cr.P.C. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of named accused is established in the crime in question. Accordingly, Investigating Officer submitted charge-sheet dated 08.05.2009, whereby all the named accused have been charge- sheeted.
After submission of aforesaid charge-sheet, cognizance was taken upon same vide Cognizance Taking Order dated 24.06.2009 passed by Additional Chief Judicial Magistrate, Court No.8, Ghaziabad. Consequently, Criminal Case No.1497 of 2009, (State Vs. Sanjeev and Others), under Sections- 498A, 323, 504 I.P.C., Police Station- Modi Nagar, District- Ghaziabad came to be registered. Subsequently, applicants are alleged to have been summoned in above-mentioned criminal case.
During pendency of afore-mentioned criminal case, parties were referred to mediation at Mediation and Conciliation Centre, District- Ghaziabad. In the aforesaid mediation proceedings, parties arrived at a settlement. Consequently, a final settlement agreement dated 12.02.2020 was drawn. Photocopy of same is on record at page-46 of the paper book.
According to the terms of settlement, Sanjeev Kumar, husband of first informant/opposite party-2 and opposite party-2, Smt. Manju concluded that on account of marital discord, parties have already agreed to terminate their relationship. Accordingly, a suit for divorce has been filed, which has been registered as Suit No.72 of 2020, (Manju Vs. Sanjeev Kumar). Other terms and conditions of compromise were also incorporated in aforesaid agreement. Copy of the plaint of divorce suit has also been brought on record.
At this juncture, four of the named accused, namely, Sanjeev Kumar, Smt. Taruna, Smt. Poonam and Smt. Jayvanti approached this Court by means of Criminal Misc. Application (under Section 482 Cr.P.C.) No.15401 of 2020, (Sanjeev Kumar and 3 Others Vs. State of U.P. and Another). Aforesaid application came up for admission on 15.10.2020 and this Court passed following order.
"Mr. Surendra Kumar, Advocate has put in appearance on behalf of opposite party no.2. He states that he shall file an affidavit along with his vakalatnama on behalf of opposite party no.2 in the registry today after serving a copy of the same upon the learned counsel for the applicants.
Heard Mr. Som Veer, learned counsel for the applicant, Mr. Surendra Kumar, learned counsel for opposite party no.2 and learned A.G.A. for the State.
This application under Section 482 Cr.P.C. has been filed for quashing the entire proceedings of Criminal Case No. 1497 of 2009 (State Vs. Sanjeev & Others), arising out of Case Crime No. 94 of 2009, under Sections 498-A, 323, 504 and 506 I.P.C. as also under Sections 3/4 D.P. Act, Police Station-Modi Nagar, District-Ghaziabad, pending in the court of Additional Chief Judicial Magistrate-V, Ghaziabad in terms of the compromise. Further prayer has been made to stay the proceedings of the aforesaid case.
It is submitted on behalf of the applicants that applicant nos. 1 to 4 are husband, Nanad, Jethani and mother-in-law of opposite party no.2 respectively. It is further submitted that on account of intervention of well-wishers applicants and opposite party no.2, a compromise has been arrived at between the parties on 12th February, 2020. A copy whereof has been filed as annexure-8 to the affidavit accompanying the present application. It is also stated that both the parties have also filed an application under Section 13-B of Hindu Marriage Act for divorce with mutual consent, which is pending consideration. It is, thus, contended that proceedings of the aforesaid case be quashed in the light of law laid down by the Apex Court in the case of Gian Singh v. State of Punjab : (2012) 10 SCC 303.
Learned counsel for opposite party no.2 also accepts that the parties have arrived at a compromise and copy of the same has also been enclosed along with the joint affidavit of both the parties which shall be filed today in the registry.
Whether a compromise has taken place or not can at best be ascertained by the court, where the proceedings are pending, after ensuring the presence of the parties before it.
Put up this case on 17th December, 2020 as fresh before the appropriate Bench.
Learned counsel for the parties undertake to ensure the presence of both the parties before the court below or any other transferee court, as the case may be, on 23.11.2020 and the court concerned, thereafter, shall ascertain the veracity of the compromise. If the said compromise is verified, the same shall be made part of the record and report to that effect, will be prepared and the parties would be allowed to obtain certified copy thereof and file the same before this Court.
Office is directed to send through FAX a copy of this order as well as the photocopy of the compromise annexed as Annexure-6 to the affidavit accompanying the present application within a week from today.
Parties are also directed to produce certified copy of this order before the court concerned on the date fixed before it.
Till the next date of listing, no coercive steps would be taken against the applicant in the aforesaid criminal case.
When the matter is listed next, name of Mr. Surendra Kumar, shall be shown in the cause list as one of the learned counsel for the opposite party."
During pendency of afore-mentioned criminal misc. application, remaining charge-sheeted accused, namely, Dharampal and Rajeev approached this Court by means of present application under Section 482 Cr.P.C., which came up for admission on 25.03.2021 and this Court passed following order.
"1. Heard Shri Som veer, learned counsel for the applicants and learned A.G.A. for the State. Perused the material on record.
2. This application under Section 482 Cr.P.C. has been filed for quashing of the proceedings of Criminal Case No. 1497 of 2009 (State versus Sanjeev & others) arising out of Case Crime No. 94 of 2009 under Sections 498-A, 323, 504, 506 I.P.C. & 3/4 D.P. Act Police Station-Modi Nagar, District-Ghaziabad pending in the court of Additional Chief Judicial Magistrate V, Ghaziabad.
3. The applicant no. 1 is the father-in-law and applicant no. 2 is the (Jethani) of the opposite party no. 2.
4. On 22.02.2021 this Court passed the following order:
"The applicant no.1 is father-in-law and applicant no. 2 is brother-in- law (Devar) of opposite party no.2. The other accused applicants have approached this Court by means of filing an application under section 482 Cr.P.C. No. 15401 of 2020 (Sanjeev Kumar and three others).
Put up as fresh on 24.02.2021 alongwith aforesaid application under Section 482 Cr.P.C. No. 15401 of 2020 (Sanjeev Kumar and three others).
Till the next date of listing, no coercive action shall be taken against the applicants in the present case."
5. Learned counsel for the applicants submits that the connected application under Section 482 No. 15401 of 2020, is arising out of the same case crime number.
6. Learned counsel for the applicants submits that in the connected Application under Section 482 No. 15401 of 2020 (Sanjeev Kumar and 3 Others versus State of U.P. and Another) arising out of the same Case Crime No. 94 of 2009, filed by the husband, nanad, jethani and mother-in-law of the present opposite party no. 2 this Court passed the order dated 15.10.2020. The order dated 15.10.2020 is being reproduced as under:-
"Mr. Surendra Kumar, Advocate has put in appearance on behalf of opposite party no.2. He states that he shall file an affidavit along with his vakalatnama on behalf of opposite party no.2 in the registry today after serving a copy of the same upon the learned counsel for the applicants.
Heard Mr. Som Veer, learned counsel for the applicant, Mr. Surendra Kumar, learned counsel for opposite party no.2 and learned A.G.A. for the State.
This application under Section 482 Cr.P.C. has been filed for quashing the entire proceedings of Criminal Case No. 1497 of 2009 (State Vs. Sanjeev & Others), arising out of Case Crime No. 94 of 2009, under Sections 498-A, 323, 504 and 506 I.P.C. as also under Sections 3/4 D.P. Act, Police Station-Modi Nagar, District-Ghaziabad, pending in the court of Additional Chief Judicial Magistrate-V, Ghaziabad in terms of the compromise. Further prayer has been made to stay the proceedings of the aforesaid case.
It is submitted on behalf of the applicants that applicant nos. 1 to 4 are husband, Nanad, Jethani and mother-in-law of opposite party no.2 respectively. It is further submitted that on account of intervention of well-wishers applicants and opposite party no.2, a compromise has been arrived at between the parties on 12th February, 2020. A copy whereof has been filed as annexure-8 to the affidavit accompanying the present application. It is also stated that both the parties have also filed an application under Section 13-B of Hindu Marriage Act for divorce with mutual consent, which is pending consideration. It is, thus, contended that proceedings of the aforesaid case be quashed in the light of law laid down by the Apex Court in the case of Gian Singh v. State of Punjab : (2012) 10 SCC 303.
Learned counsel for opposite party no.2 also accepts that the parties have arrived at a compromise and copy of the same has also been enclosed along with the joint affidavit of both the parties which shall be filed today in the registry.
Whether a compromise has taken place or not can at best be ascertained by the court, where the proceedings are pending, after ensuring the presence of the parties before it.
Put up this case on 17th December, 2020 as fresh before the appropriate Bench.
Learned counsel for the parties undertake to ensure the presence of both the parties before the court below or any other transferee court, as the case may be, on 23.11.2020 and the court concerned, thereafter, shall ascertain the veracity of the compromise. If the said compromise is verified, the same shall be made part of the record and report to that effect, will be prepared and the parties would be allowed to obtain certified copy thereof and file the same before this Court.
Office is directed to send through FAX a copy of this order as well as the photocopy of the compromise annexed as Annexure-6 to the affidavit accompanying the present application within a week from today.
Parties are also directed to produce certified copy of this order before the court concerned on the date fixed before it.
Till the next date of listing, no coercive steps would be taken against the applicant in the aforesaid criminal case.
When the matter is listed next, name of Mr. Surendra Kumar, shall be shown in the cause list as one of the learned counsel for the opposite party."
7. On 05.01.2021, this Court passed the following order in Application under Section 482 No. 15401 of 2020:-
"As per the Office report dated 15.12.2020, report regarding compliance of the order dated 15.10.2020 has yet not been received.
put up this case on 19th February, 2021 as fresh.
Interim order, if any, is extended till the next date of listing."
8. As per the order sheet of Application under Section 482 No. 15401 of 2020, the office has submitted a report dated 18.02.2021 that the report in compliance of the order dated 15.10.2020 is still awaited.
9. The Chief Judicial Magistrate Ghaziabad is directed to submit the report as regards verification of compromise in compliance of the order dated 15.10.2020 by the next date of listing.
10. Put up as fresh on 19.04.2021 along with connected Application under Section 482 No. 15401 of 2020.
10. Let a copy of this order be sent to the Chief Judicial Magistrate, Ghaziabad for intimation and submission of report, through Fax.
11. The interim order dated 22.02.2021 passed in the present case, is extended till the next date of listing. "
Pursuant to above order dated 25.03.2021, parties appeared before court below and filed a compromise deed. Court below verified the compromise vide its order dated 03.02.2021. After verification of compromise, court below has sent its report dated 28.06.2021 to this Court. Same are on record.
On the aforesaid premise, learned counsel for applicants contends that dispute between parties is a purely private and matrimonial dispute. During pendency of above-noted applications, parties have amicably settled their dispute outside the Court. On the basis of settlement so arrived at between Sanjeev Kumar and opposite party-2, Smt. Manju, who are husband and wife, they have agreed to terminate their marital relationship. Accordingly, a suit for divorce with consent, i.e., Original Suit No.72 of 2020, (Smt. Manju Vs. Sanjeev Kumar) under Section 13B of Hindu Marriage Act has already been instituted. Consequently, the liability and obligations of parties, that is Sanjeev Kumar and Smt. Manju shall be determined by the decree to be passed in afore-mentioned divorce suit. He therefore contends that in view of above, no useful purpose shall be served by prolonging the proceedings of above- mentioned criminal case. He, therefore contends that entire proceedings of afore-mentioned criminal case be quashed by this Court in exercise of its jurisdiction under Section 482 Cr.P.C., instead of relegating the parties to court below as parties have already compromised which has been verified by court below in compliance of orders passed by this Court.
Per contra, learned A.G.A. and Mr. Surendra Kumar, learned counsel representing opposite party-2 do not dispute the submissions urged by learned counsel for applicants.
This Court is not unmindful of the following judgements of Apex Court:
1. B.S. Joshi and others Vs. State of Haryana and another (2003) 4 SCC 675
2. Nikhil Merchant Vs. Central Bureau of Investigation[2008)9 SCC 677]
3. Manoj Sharma Vs. State and others ( 2008) 16 SCC 1
4. Shiji @ Pappu and Others VS. Radhika and Another, (2011) 10 SCC 705
5. Gian Singh Vs. State of Punjab (2012) 10 SCC 303
6. K. Srinivas Rao Vs. D.A Deepa, (2013) 5 SCC 226
7. Dimpey Gujral and others Vs. Union Territory through Administrator, U.T. Chandigarh and others, (2013) 11 SCC 497
8. Narindra Singh and others Vs. State of Punjab ( 2014) 6 SCC 466
9. Yogendra Yadav and Ors. Vs. State of Jharkhand and another (2014) 9 SCC 653
10. C.B.I. Vs. Maninder Singh (2016) 1 SCC 389
11. C.B.I. Vs. Sadhu Ram Singla and Others, (2017) 5 SCC 350
12. Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Others Vs. State of Gujarat and another, (2017) 9 SCC 641
13. Anita Maria Dias and Ors. Vs. State of Maharashtra and Others, (2018) 3 SCC 290
14. Social Action Forum For Manav Adhikar and Another Vs. Union of India and others, (2018) 10 SCC, 443 (Constitution Bench)
15. State of M.P. VS. Dhruv Gurjar and Another, (2019) 5 SCC 570
16. State of M.P. V/s Laxmi Narayan & Ors., (2019) 5 SCC 688
17. Rampal Vs. State of Haryana, AIR online 2019 SC 1716
18. Arun Singh and Others VS. State of U.P. and Another (2020) 3 SCC 736
19. Criminal Appeal No. 1489 of 2012 (Ramgopal and Another Vs. The State of M.P.), 2021 SCC OnLine SC 834.
wherein Apex Court has categorically held that compromise can be made between the parties even in respect of certain cognizable and non compoundable offences. In Dimpey Gujral (supra), it was held that heinous and serious offences of mental depravity, or offences like murder, rape, dacoity etc. cannot be quashed on the basis of compromise as same fall in the category of crime against society. It was however observed that court should bear in mind that if because of compromise between parties, 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 accused by not quashing the criminal proceedings, then in that eventuality High Court should quash the proceedings on the ground of compromise. Constitution Bench in Social Action Forum For Manav Adhikar and Another (supra) in paragraph 38 of the judgement approved the law laid down by three Judges Bench judgement in Gian Singh (supra) Court approved the view that criminal proceedings can be quashed on the basis of compromise. However, another 3 Judges Bench of Apex Court in State of M.P. Vs. Laxmi Narayan (Supra) has observed that no compromise can be made in respect of offences against society as they are not private in nature. It was, however, held that proceedings under Section 307 IPC can be quashed in view of compromise entered into by the parties, provided injured has not sustained grievous and fatal injury nor he should have sustained injury on vital part of the body. Similarly in Ram Pal Vs. State of Haryana (Supra) it has been held that no compromise can be made in cases relating to rape and sexual assault. Reference may also be made to the decision given by this Court in Shaifullah and others Vs. State of U.P. And another [2013 (83) ACC 278] in which law expounded by Apex court in some of the aforesaid cases has been explained in detail.
Apex court in Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur (Supra) has laid down the following guidelines with regard to quashing of criminal proceedings as well as compromise in criminal proceedings in paragraphs 16 to 16.10 of the judgement, which read as under:
"16. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions
16.1. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognizes and preserves powers which inhere in the High Court;
16.2. The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.
16.3. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;
16.4. While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;
16.5. The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;
16.6. In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;
16.7. As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;
16.8. Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;
16.9. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and
16.10. There is yet an exception to the principle set out in propositions 16.8 and 16.9 above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance."
Recently in Ramgopal and another (supra), Court has again reiterated the guidelines regarding quashing of criminal proceedings in view of compromise. Following has been observed in paragraph 18-19:-
"18. It is now a well crystalized axiom that plenary jurisdiction of this Court to impart complete justice under Article 142 cannot ipso facto be limited or restricted by ordinary statutory provisions. It is also noteworthy that even in the absence of an express provision akin to Section 482 Cr.P.C. conferring powers on the Supreme Court to abrogate and set aside criminal proceedings, the jurisdiction exercisable under Article 142 of the Constitution embraces this Court with scopious powers to quash criminal proceedings also, so as to secure complete justice. In doing so, due regard must be given to the overarching objective of sentencing in the criminal justice system, which is grounded on the sub-lime philosophy of maintenance of peace of the collective and that the rationale of placing an individual behind bars is aimed at his reformation.
19. We thus sum-up and hold that as opposed to Section 320 Cr.P.C. where the Court is squarely guided by the compromise between the parties in respect of offences 'compoundable' within the statutory framework, the extra-ordinary power enjoined upon a High Court under Section 482 Cr.P.C. or vested in this Court under Article 142 of the Constitution, can be invoked beyond the metes and bounds of Section 320 Cr.P.C. Nonetheless, we reiterate that such powers of wide amplitude ought to be exercise carefully in the context of quashing criminal proceedings, bearing in mind: (i) Nature and effect of the offence on the conscious of the society; (ii) Seriousness of the injury, if any; (iii) Voluntary nature of compromise between accused and the victim; & (iv) Conduct of the accused persons, prior to and after the occurrence of the purported offence and/or other relevant considerations."
Considering the facts and circumstances of case, submissions made by counsel for parties and the material on record, this court is of considered opinion that dispute between parties is a purely private dispute and not a crime against society. Dispute between parties, is basically a matrimonial dispute. Moreover, during pendency of present application, parties have already compromised their dispute. Compromise so entered into by parties has been acted upon and verified by Court below. As such, no difference exists between parties. Consequently, no useful purpose shall be served by prolonging the proceedings of above mentioned case. In view of compromise entered into by the parties, chances of conviction of accused applicants are remote and bleak. As such continuation of proceedings would itself cause injustice to parties. The trial would only entail loss of judicial time in a futile pursuit particularly when torrents of litigation drown the courts with an unimaginable flood of dockets.
In view of above, present application succeeds and is liable to be allowed. Consequently, entire proceedings of Criminal Case No.1497 of 2009, (State Vs. Sanjeev and Others) arising out of Case Crime No.0094 of 2009, under Sections- 498A, 323, 504, 506 I.P.C. and Sections- 3/4 D.P. Act, Police Station- Modi Nagar, District- Ghaziabad pending in the court of Additional Chief Judicial Magistrate V, Ghaziabad are, hereby, quashed.
Applications are, accordingly, allowed. Costs made easy.
Order Date :- 30.9.2021 Saif