Heard Mr. Sanjay Kumar Srivastava, learned counsel for applicant and learned A.G.A. for State.
Learned counsel for applicant has supplied certified copy of the judgement and order dated 24.11.2020 passed by Principal Judge, Family Court, Kanpur Nagar in Matrimonial Case No. 2413 of 2019 (Nagendra Swaroop Tripathi Vs. Smt. Pratibha Tripathi), under Section 13 B of Hindu Marriage Act, which is taken on record.
This application under Section 482 Cr.P.C. has been filed challenging charge sheet No. A-403/16 dated 14.11.2016 submitted in Case Crime No. 500 of 2016, under Sections 498-A, 323, 504, 506 IPC and Sections 3/4 Dowry Prohibition Act, P.S. Barra, District Kanpur Nagar, as well as entire proceedings of consequential Case No. 7247 of 2017 (State Vs. Nagendra Swaroop Tripathi and others), now pending in the Court of Additional Chief Metropolitan Magistrate, Kanpur Nagar.
It transpires from record that in respect of an incident which is alleged to have occurred on 05.06.2016, a delayed F.I.R. dated 24.06.2016 was lodged by first informant/opposite party 2 Smt. Pratibha Tripathi and was registered as Case Crime No. 500 of 2016, under Sections 498-A, 323, 504, 506 IPC and Sections 3/4 Dowry Prohibition Act, P.S. Barra, District Kanpur Nagar. In the aforesaid F.I.R. five persons namely Nagendra Swaroop Tripathi, Smt. Meera Tripathi, Murlidhar, Usha and Aradhana (applicants herein) have been nominated as named accused.
Pursuant to aforesaid F.I.R. Investigating Officer proceeded with statutory investigation of concerned Case Crime Number in terms of Chapter XII Cr. P. C. After completion of investigation, Investigating Officer on the basis of statements of witnesses examined under Section 161 Cr. P. C. and other material collected during course of investigation, which is substantially adverse to applicants opined to submit a charge sheet. Accordingly, Investigating Officer submitted charge sheet dated 14.11.2016, whereby named accused have been charge-sheeted under sections 498-A, 323, 504, 506 IPC and Sections 3/4 Dowry Prohibition Act.
During pendency of above noted criminal case, informant opposite party-2 Smt. Pratibha Tripathi and accused applicants Nagendra Swaroop Tripathi, Smt. Meera Tripathi, Murlidhar, Usha and Aradhana amicably settled their dispute in mediation proceedings held at Mediation and Conciliation Centre, Kanpur Court. On the basis of settlement so arrived at between the parties, compromise letter dated 23.09.2019 was forwarded by Mediation and Conciliation Centre, Kanpur Court to the Court where above mentioned criminal case is pending. According to the terms of settlement arrived at between applicant 1 and opposite party 2, who are husband and wife, it was agreed that marital relationship between parties be terminated. Accordingly, a suit under Section 13 B of Hindu Marriage Act agreed to be filed. Applicant 1 was required to pay permanent alimony to the tune of Rs. 6,50,000/- as per schedule of payment mentioned in compromise letter dated 23.9.2019. Parties further agreed that criminal proceedings initiated shall be got terminated in the light of compromise. Learned counsel for applicants contends that pursuant to above, Suit No. 2413 of 2019 (Nagendra Swaroop Tripathi Vs. Smt. Pratibha Tripathi) under Section 13 B of Hindu Marriage Act was filed before Court below and same has been decreed, vide judgement and decree dated 24.11.2020. Learned counsel for applicants, therefore, contends that in the light of above, applicants, who are charge sheeted accused, have now approached this Court by means of present application under Section 482 Cr. P. C., as charges alleged against applicants are non compoundable in nature.
Present application under Section 482 Cr. P. C. came up for admission on 08.03.2017 and this Court passed following order:-
"Heard learned counsel for the applicants and learned A.G.A. for the State.
This petition under Section 482, Cr.P.C. has been filed for quashing the charge sheet no.A-403 of 2016 dated 14.11.2016 arising out of Case Crime No.500 of 2016 (Case No.7247 of 2017), under Sections 498A, 323, 504, 506 I.P.C., and 3/4 of Dowry Prohibition Act, Police Station Barra, District Kanpur Nagar, pending before A.C.M.M. 1st, Kanpur Nagar.
It is contended by learned counsel for the applicants that the husband as well as entire family members of the husband-applicant no.1 have been falsely implicated in the present case by the opposite party no.2 on the general allegations, which is against the well settled principles of law as laid down by Hon'ble Apex Court reported in 2012 (10) SCC 741 in the matter of Geeta Mehrotra and another Vs. State of Uttar Pradesh.
So far as the husband-applicant no.5, namely, Nagendra Swaroop Tripathi is concerned following orders is being passed:-
From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicant. All the submission made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court in exercise of power conferred under Section 482 Cr.P.C.. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicant have got a right of discharge under Section 239 or 227/228 or 245 Cr.P.C. as the case may be through a proper application for the said purpose and they are free to take all the submissions in the said discharge application before the Trial Court.
The prayer for quashing the proceedings is refused.
However, it is provided that if the applicant no.5 appears and surrenders before the court below within 45 days from today and applies for bail, then the bail application of the applicant be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgment passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. For a period of 45 days from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicant. However, in case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.
With the aforesaid directions, this application is finally disposed off so far as applicant no.5 is concerned.
So far as the applicant nos.1 to 4 are concerned the following orders is being passed:-
Issue notice to the opposite party no.2 returnable within four weeks. Steps be taken within a week.
Learned A.G.A. prays for and is granted four weeks time to file counter affidavit. The opposite party no.2 may also file counter affidavit within the said period. As prayed by the learned counsel for the applicants two week thereafter is granted for filing rejoinder affidavit.
List after expiry of the aforesaid period before appropriate Court.
Till the next date of listing, no coercive action shall be taken against the applicant nos.1 to 4 in the aforesaid case."
However, no counter affidavit has been filed by opposite parties nor opposite party 2 has put in appearance in present application.
Learned counsel for applicants contends that dispute between parties is a matrimonial dispute. During pendency of case before Court below, applicant 5 and opposite party 2 amicably settled their dispute. On the basis of settlement so arrived at between parties, compromise letter was sent to court below by Mediation and Conciliation Centre, Kanpur Court.
On the aforesaid premise, it is urged by learned counsel for applicants that once parties have entered into a compromise, no useful purpose shall be served by prolonging proceedings of above mentioned criminal case. According to the terms of compromise, all criminal cases have to be got terminated. As such, interest of justice shall better be served, in case, entire proceedings of above mentioned criminal case are quashed by this Court itself in exercise of it's jurisdiction under Section 482 Cr. P. C, instead of relegating the parties to Court below.
Per contra, the learned A.G.A. does not oppose this application. He contends that once applicant 5 Nagendra Swaroop Tripathi and opposite party 2 have agreed to settled their dispute as is evident from compromise letter dated 23.9.2019 and further a decree of divorce by mutual consent having been granted, no useful purpose shall be served in prolonging proceedings of above mentioned criminal case.
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. State of M.P. VS. Dhruv Gurjar and Another, (2019) 5 SCC 570
15. State of M.P. V/s Laxmi Narayan & Ors., (2019) 5 SCC 688
16. Rampal Vs. State of Haryana, AIR online 2019 SC 1716
17. Arun Singh and Others VS. State of U.P. and Another (2020) 3 SCC 736 wherein the 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 the 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. However, 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. 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 the law expounded by the Apex court in some of the aforesaid cases has been explained in detail.
Recently Apex court in Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur (Supra) has laid down the following guidelines with regard to quashing of criminal proceedings as well 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."
Considering the facts and circumstances of case, submissions made by counsel for parties, as well as the fact that dispute between parties is a purely private dispute and not a crime against society. Moreover, parties have already compromised their dispute. 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 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, application succeeds and is liable to be allowed. Consequently, proceedings of Case No. 7247 of 2017 (State Vs. Nagendra Swaroop Tripathi and others), now pending in the Court of Additional Chief Metropolitan Magistrate, Kanpur Nagar, are, hereby, quashed.
Application is, accordingly, allowed. There shall be no order as to costs.
Order Date :- 27.8.2021 HSM