Mohd. Iftikar & ANR. v. State & ANR.

$~24 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(CRL) 198/2017 and Crl. M.A. 1234/2017 and 1235/2017 MOHD. IFTIKAR & ANR.

..... Petitioners Through: Mr. Momin Ahmed Khan, Advocate versus STATE & ANR.

..... Respondents Through: Ms. Anya Singh for ASC Mr. Avi Singh for R-1/State Mr. Z. Ahmed, Advocate for R-2

CORAM:

HON'BLE MR. JUSTICE R.K.GAUBA

O R D E R

% 08.05.2017 1.

The second respondent (Rumana daughter of Late Mohd. Akhlaq) was married to Mohd. Rizwan on 05.07.2010. Due to some differences, the parties separated and the second respondent lodged first information report (FIR) no.152/2012 with Police Station Chandni Mahal, Delhi alleging offences punishable under Section 498A, 406, 34 of the Indian Penal Code (IPC) against her husband Mohd. Rizwan, the petitioners and some other relatives from the matrimonial family.

2.

It is confirmed by the State that investigation was completed and a report under Section 173 of the Code of Criminal Procedure, 1973 (Cr. PC) was filed in the court of the Metropolitan Magistrate on which cognizance was taken and the persons accused including the petitioners were released on bail. Mohd. Rizwan, the husband of second respondent died on 23.10.2014 during the pendency of the trial which thus abated against him. 3.

The accused persons other than the petitioners were statedly discharged by the court of the Metropolitan Magistrate by order dated 16.10.2015, the WP(Crl.) 198/2017 Page 1 of 6

proceedings in the criminal case arising out of the above mentioned FIR thus surviving only against the petitioners.

4.

On their request, the petitioners and the complainant were referred to the Delhi Mediation Centre, Tis Hazari Courts by the Metropolitan Magistrate in seisin of the case. They entered into an amicable settlement through the process of mediation on 04.06.2016, copy whereof has been submitted (as Annexure G) to the petition at hand whereby prayer is made in the criminal case arising out of the above FIR to be quashed. The petitioners also submitted, alongwith the petition, an affidavit to this effect sworn by the second respondent on 02.08.2016.

5.

Notice was issued on this petition by order dated 03.02.2017. The second respondent has appeared with counsel Mr. Z. Ahmed. She has filed a fresh affidavit reiterating the fact that she does not want to proceed further with the criminal case thus joining in the prayer in the petition. Copy of her Aadhar card has been submitted as proof of her identity. 6.

Having heard the learned counsel on all sides, there being no opposition on the side of the State, it is clear that the second respondent (the first informant or the complainant of the criminal case) wants to make peace with the petitioners, parents of her deceased husband and, therefore, would like to bury the dispute seeking no further action, the prime allegations in the case registered at her instance being against the husband, who has passed away.

7.

In Rakesh & Ors. Vs. State of NCT of Delhi and Anr., passed in WP (Crl.) 1004/2017 by order dated 20.04.2017, this court noted the law on the subject as under :- "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.

WP(Crl.) 198/2017 Page 2 of 6

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 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 WP(Crl.) 198/2017 Page 3 of 6

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 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 WP(Crl.) 198/2017 Page 4 of 6

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 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 noncompoundable, 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, WP(Crl.) 198/2017 Page 5 of 6

in order to do complete justice in the matrimonial matters, the courts should be less 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." 8.

The case at hand passes the muster of the above-noted tests. 9.

In the above facts and circumstances, the petition is allowed. The crime registered by the police vide FIR 152/2012 under Sections 406, 498A, 34 IPC of Police Station Chandni Mahal and the proceedings emanating therefrom are hereby quashed.

10.

The petition and the accompanying applications are disposed of accordingly.

R.K.GAUBA, J MAY 08, 2017/yg WP(Crl.) 198/2017 Page 6 of 6