Mohd. Farhad & ORS. v. State & ANR.

$~52 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(CRL) 3325/2018 & Crl. M.A. No. 35287/2018 MOHD. FARHAD & ORS.

..... Petitioners Through:

Mr. H. Rehman, Advocate with Petitioners in person.

Versus

STATE & ANR.

..... Respondents Through:

Ms. Iti Pandey, Advocate for Ms. Nandita Rao, Additional Standing Counsel with SI Arun Ahlawat, P.S. Farsh Bazar.

Mr. Sulaiman Mohd. Khan, Advocate (M.

No.7042502555) for Respondent No. 2 with Respondent No. 2 in person.

CORAM:

HON'BLE MR. JUSTICE NAJMI WAZIRI

O R D E R

% 30.10.2018 Crl. M.A.No.35287/2018 (for exemption) Allowed, subject to all just exceptions.

The application stands disposed-off.

W.P.(CRL) 3325/2018 1.

This petition seeks quashing of FIR No. 184/2018 dated 09.06.2018 registered at Police Station Farsh Bazar, Delhi, for the offences punishable under sections 498-A/406/34 IPC and the consequential proceedings emanating therefrom against the petitioners.

2.

The learned counsel appearing on behalf of the petitioners submits that the aforesaid case was registered on the complaint of respondent No.2,

namely, Mrs. Ruby Khan, consequent upon certain matrimonial and domestic disputes having arisen between the parties pursuant to her marriage with the petitioner No.1. However, the parties have settled their disputes by way of a Settlement Agreement dated 25.06.2018. The petitioner No.1 and respondent No.2 have two minor daughters and they desire to take care of them. All the petitioners assure that they will do so and will endeavour to educate them in the best educational institutions of the country. Pursuant to the aforesaid Settlement, the respondent No.2 has started cohabiting with petitioner No.1 in the house of her-in-laws i.e. her matrimonial home. The respondent No.2 is trying her best to adjust and live peaceably with her-inlaws and to make her marriage work. The petitioner No. 1 offers to deposit Rs.

3,000/- per month into the bank account of the respondent No. 2 i.e. A/c No.0125001500070911, Punjab National Bank, Shahdara, Delhi - 32, for her exclusive use other than such maintenance amount, as may be required for running the family and taking care of the children and respondent No.2. The said amounts will be payable from the month of June, 2018. The arrears shall be paid into the aforesaid account on or before 08.11.2018. The monthly payment of Rs.3,000/- shall also be effected likewise by 8th day of each Gregorian calendar. In view of the above, respondent No.2 has no complaints whatsoever against any of the petitioners and she does not want to pursue the case against them any further.

3.

Respondent No.2 is present in the Court and has been duly identified by the Investigating Officer of the case. Since she does not have a counsel, Mr. Sulaiman Mohd. Khan, Advocate, present in the Court is appointed as her counsel for the day. The latter states upon instructions that the

complainant and petitioner No.1 are living together happily as husband and wife as they have resolved all their disputes. The complainant states that to restore cordiality amongst the parties, proceedings arising out of FIR in question be brought to an end.

4.

The learned counsel for the State submits that present case is a matrimonial one and since the respondent No.2 has settled all the disputes with petitioners and does not wish to pursue the case further against them, no purpose would be served if the petitioners are directed to face trial. Therefore, the State has no objection, if this Court allows the present petition.

5.

In the aforesaid circumstances and keeping in mind the decision of the Supreme Court in Gian Singh Vs. State of Punjab and Another (2012) 10 SCC 303, holding that even a non-compoundable offence can also be quashed on the ground of a settlement agreement between the offender and the victim, if the circumstances so warrant; by observing as under: "58. 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 the victim and the offender and the 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 FIR if it is satisfied that on the face of such settlement, there is hardly any likelihood of the offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated."

6.

The amicable resolution of cases like the present one is an abiding objective. The dictum of Gian Singh (supra) has been affirmed by the Apex Court in Narinder Singh & Ors. Vs. State of Punjab & Anr. 2014 6 SCC 466 while observing:

"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.

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.

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 chargesheet 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."

7.

In a similar vein regarding matrimonial disputes the Supreme Court in Jitendra Raghuvanshi & Ors. Vs. Babita Raghuvanshi & Anr. (2013) 4 SCC 58 held:

"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. They 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 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...."

8.

The parties are present in the Court and have been identified by their respective counsel. The parties have re-iterated the terms of the aforesaid Settlement and undertake to remain bound by the same. Since the respondent No.2 and the petitioner No.1 have started living together as husband and wife and that the complainant herself does not wish to pursue

against the petitioners, the substratum of the complaint/FIR dissipates and any further proceeding apropos the same FIR would be an exercise in futility. It would, therefore, be in the interest of justice that the FIR be quashed.

9.

At this stage, Ms. Iti Pandey, the learned counsel for the State submits that the cohabitation has been resumed rather recently and the matter be looked into by the Court for a few more months. 10.

In view of the above, the FIR No. 184/2018 dated 09.06.2018 registered at Police Station Farsh Bazar, Delhi, for the offences punishable under sections 498-A/406/34 IPC and all proceedings emanating therefrom are hereby quashed. However, the case be listed for directions on 19.04.2019, just in case respondent No.2-complainant has any grievance against the petitioners.

NAJMI WAZIRI, J.

OCTOBER 30, 2018 sb