Deepak & ORS v. State (NCT Of Delhi) & ANR
$~21 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(CRL) 1000/2017 DEEPAK & ORS ..... Petitioners Through: Mr. H.P. Rao, Advocate versus STATE (NCT OF DELHI) & ANR ..... Respondents Through: Ms. Richa Kapoor, ASC with Ms. Ritika Bhalla Kapur, Advocate for R-1/State with SI Veer Singh and SI Omveer Singh, PS Nand Nagari Mr. Avtar Kaor Dhingra, Advocate for R-2
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
O R D E R
% 21.04.2017 1.
The second respondent was married to the first petitioner as per Hindu rites and ceremonies on 03.12.2014. On 12.12.2015, she lodged first information report (FIR 1304/2015) with police station Nand Nagri alleging offences punishable under Sections 498A, 406, 34 of Indian Penal Code, 1860 (IPC) against her husband (first petitioner), his father Ram Lal Kashyap (the second petitioner) and other members of family of the husband, they being Pooja (third petitioner), Renu (fourth petitioner), Sukhram (fifth petitioner), Meena (sixth petitioner), Vikram @ Vicky (seventh petitioner), Mahendar Singh (eighth petitioner) and Maharani (ninth petitioner). The investigation is still pending and a report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.PC) is yet to be filed. 2.
It appears the second respondent (wife) had also instituted proceedings under the Protection of Women from Domestic Violence WP(Crl.) 1000/2017 Page 1 of 8
Act, 2005 in the court of the Metropolitan Magistrate (Mahila court no.1), Karkardooma Courts, bearing case no.V-218/2015, in the course of hearing upon which, the parties were referred to the process of mediation through mediation centre at Karkardooma Courts complex, Delhi. The efforts to find amicable resolution through mediation were successful as the parties entered into a settlement which was recorded on 12.02.2016, copy whereof has been submitted (pages 43 to 47) of the paper book.
3.
In terms of the said settlement, the petitioners have already paid to the second respondent (complainant) two instalments of Rs.1.25 Lakhs each before Delhi Mediation Centre, Karkardooma Courts, Delhi and further a demand draft bearing No. 585231 dated 10.02.2017 drawn on Bank of Baroda, Vishwas Nagar, Delhi-110032 in the sum of Rs. 1.25 lakhs in favour of complainant, the total payment made being Rs. 3.75 lakhs (Rupees Three Lakh and Seventy Five thousand only), the last mentioned instrument having been handed over in court on 10.04.2017 as full and final settlement of all her claims arising out of the marriage including maintenance (present, past and future), permanent alimony and istridhan, etc.. The parties also resolved by the above-mentioned settlement to jointly move a petition this court for having the proceedings arising out of the FIR quashed.
4.
It appears that in terms of the said settlement, the petition filed by the first petitioner under Section 9 of the Hindu Marriage Act, 1955 (HMA 791/2015) for restitution of the conjugal rights before the court of Sh. B.R. Kedia, Principal Judge, Family Courts, Karkardooma Courts, Delhi was withdrawn by petitioner no.1 on 25.02.2016.
WP(Crl.) 1000/2017 Page 2 of 8
5.
The petition, thus, has been moved in this court invoking Article 226 of the Constitution of India and Section 482 Cr.PC seeking quashing of the FIR 1304/15 under Sections 406, 498A, 34 IPC of Police Station Nand Nagri, North East, Delhi. 6.
By order dated 10.04.2017, it was noted that the second respondent had appeared on her own with counsel. She was called upon to give her response by filing an affidavit. The State (first respondent) was also called upon to submit its response. In compliance, a status report of the case has been submitted by Inspector Veer Singh, SHO, PS Nand Nagri while the second respondent has filed an affidavit, her earlier affidavit having already been submitted with the petition, both giving no objection to the prayer in the petition.
7.
On being asked, the second respondent has produced her original Aadhar card Identity card (copy whereof has been kept on record) on which advocate Ms. Avtar Kaur Dhingra has made an endorsement confirming her identity.
8.
The petitioners and the second respondent have been heard in person. From their submissions and the pleadings on record, as indeed the documents submitted with the petition, it is established that the parties have entered into the settlement out of their own free will and volition. The amount of Rs.3,75,000/- has been received by the second respondent, as confirmed on oath by her through her affidavit, in the form of two instalments of Rs.1,25,000/- each paid earlier and the third instalment of Rs.1,25,000/- paid by way of demand draft handed over to her on 10.04.2017 in court.
9.
The documents filed further confirm that pursuant to the settlement terms, the parties had also approached the Family Court for WP(Crl.) 1000/2017 Page 3 of 8
dissolution of their marriage by mutual consent under Section 13B of the Hindu Marriage Act, 1955. The first motion petition registered as HMA 231/2016 was allowed by order dated 25.02.2016 while the second motion petition registered as HMA case 1169/16 was allowed vide order dated 15.10.2016 whereby the decree of divorce by mutual consent has been granted.
10.
In writ petition (criminal) 1004/2017, titled Rakesh & Ors. vs. State (NCT of Delhi), while allowing an identical prayer against similar backdrop, this Court by order dated 20.04.2017, concluded thus:- "10. Pertinent to note here that offence under Section 498A IPC is not compoundable. The parties are constrained to move this court for quashing on the basis of amicable resolution arrived at by them in the facts and circumstances noted above.
11.
The scope and ambit of the power conferred on this court by Section 482 of the Code of Criminal Procedure, 1973 (Cr. PC) read with Articles 226 and 227 of the Constitution of India, in the particular context of prayer for quashing criminal proceedings, was examined by the Supreme Court in B.S. Joshi and Ors. Vs. State of Haryana and Anr., (2003) 4 SCC 675, against the backdrop of catena of earlier decisions. Noting, with reference to the decision in State of Karnakata Vs. L Muniswamy, (1977) 2 SCC 699, that in exercise of this "inherent" and "wholesome power", the touchstone is as to whether "the ends of justice so require", and it was observed thus :
"10. ... 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 WP(Crl.) 1000/2017 Page 4 of 8
justice had got to be administered according to laws made by the legislature. ...that the compelling necessity for making these observations is that without a proper realization of the object and purpose of the provision 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."
12.
The Supreme Court in B.S. Joshi (supra) further noted as under :- "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 facts declines the prayer for WP(Crl.)
quashing for any valid reasons including lack of bona fides."
13.
Holding that "special features in ...matrimonial matters are evident" and that it is "the duty of the court to encourage genuine settlements of matrimonial disputes", referring to Madhavrao Jiwajirao Scindia Vs. Sambhajirao Chandrojiroo Angre, (1988) 1 SCC 692, it was further observed that :
"11. ... Where, in the opinion of the court, chances 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."
14.
In Gian Singh Vs. State of Punjab and Anr. (2012) 10 SCC 303, the Supreme Court contrasted the request for quashing of criminal proceedings on the basis of settlement with the possibility of compounding of an offence and observed thus :- "57. Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or WP(Crl.) 1000/2017 Page 6 of 8
criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment."
15.
The above views in the context of matrimonial disputes resulting in criminal proceedings have been consistently followed over the years, as may be further illustrated by the decision of a bench of three Hon'ble Judges of the Supreme Court in Jitendra Raghuvanshi and Ors. Vs. Babita Raghuvanshi and Anr., (2013) 4 SCC 58, the following observations summarising the philosophy succinctly :- "15. In our view, it is the duty of the courts to encourage genuine settlements of matrimonial disputes, particularly, when the same are on considerable increase. Even if the offences are non-compoundable, if they relate to matrimonial disputes and the Court is satisfied that the parties have settled the same amicably and without any pressure, we hold that for the purpose of securing ends of justice, Section 320 of the Code would not be a bar to the exercise of power of quashing of FIR, complaint or the subsequent criminal proceedings.
16. There has been an outburst of matrimonial disputes in recent times. The institution of marriage occupies an important place and it has an important role to play in the society. Therefore, every effort should be made in the interest of the individuals in order to enable them to settle down in life and live peacefully. If the parties ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law, in order to do complete justice in the matrimonial matters, the courts should be less WP(Crl.) 1000/2017 Page 7 of 8
hesitant in exercising their extraordinary jurisdiction. It is trite to state that the power under Section 482 should be exercised sparingly and with circumspection only when the Court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of process of court or that the ends of justice require that the proceedings ought to be quashed..."
16.
In a case where criminal proceedings arise essentially out of matrimonial dispute and the parties have decided to bury the hatchet, the court must examine if there is any likelihood of the criminal prosecution resulting in conviction. In fact-situation wherein the matrimonial relation has been brought to an end by mutual consent and the parties are eager to move on with their respective lives seeking closure and if there is nothing to indicate lack of bonafide on the part of any side, denial of the prayer for quashing the criminal case would restore acrimony rather than bring about peace. Allowing continuance of the criminal action would be fruitless and clearly an abuse of judicial process." 11.
The case at hand passes the above muster.
12.
In the above facts and circumstances, the petition is allowed. The crime registered by the police vide FIR 1304/2015 under Sections 406, 498A, 34 IPC of Police Station Nand Nagri, North East, Delhi and the proceedings emanating therefrom are hereby quashed. R.K.GAUBA, J APRIL 21, 2017 yg WP(Crl.) 1000/2017 Page 8 of 8