Kanheyalal Meena & ORS v. State (NCT Of Delhi) & ANR
$~4 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(CRL) 3406/2018 & Crl. M.A. Nos.35732-32/2018 KANHEYALAL MEENA & ORS.
..... Petitioners Through:
Mr. Malaya Kumar Chand and Mr. Hardik Ahluwalia, Advocates with Petitioner No. 1 in person.
Versus
STATE (NCT OF DELHI) & ANR.
..... Respondents Through:
Mr. Piyush Singhal for Mr. Ashish Aggarwal, Additional Standing Counsel for State with SI Satish Yadav, P.S. Dwarka (North).
Mr. Gagan (M. No.9990627276) and Mr. Vikas Tanwar (M. No.9212239221), Advocates
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
O R D E R
% 06.12.2018 1.
In compliance of the previous order dated 20.11.2018, the petitioners have deposited Rs. One Lac in the bank account of respondent No.2 - Ms. Urmila Meena, mother of Master Rishabh Jeph. Additionally, his grandfather - Mr. Kanheyalal Meena has filed an affidavit, annexed at page 44 of the petition, to the effect that the said grandson would have a share in the ancestral property and that he has transferred the said shares in the name of the grandson. The affidavit reads as under: "2. That father of Petition (sic) No.l has left behind the following assets, which is to be distributed by P-1 and Lr's (sic) of brother of P-1 (namely Late Deburam R/o- Sirode). (Details of Jamabandhi as per Halka Patwari, as per record of
Tehsil as download (sic) is enclosed as Annexure A/1 in which Properties of P-1 is of 1⁄2 share and LR's of Late Deburam / younger Brother of P-1 is of 1⁄2 share ) A) 0.2000 Hectare At Village Sirode , Patwari Halka Sirode , Tehsil Khetdi Dist-Jhunjhun-, Rajsthan in Khasra No. 1490/20 and 1.2500 Hectare in Khasra No. 1715/20. Total 1.4500 Hectare.
B) 6 rooms house at Village Sirode.
3. That the Petitioner No.l has executed an Affidavit in terms of the order dated 02-11-2018 thereby transferring his share to Master Rishab Jeph. Out of which a fair portion i.e 14.5 Ayer (1/5 the share be given to Master Rishab Jeph. Copy enclosed as A/2.
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5. That in terms of the order dated 02-11-2018 the P-1 has already deposited Rs.1,00,000/- (Rs.50,000/- on 19-11-2018 and Rs.50,000/- on 20-11-2018) in the bank account no. 51101887861 in the name of Urmila Meena , Dosa Branch, Rajsthan. Copy of deposit slips are enclosed as A/4 (colly)." In view of the above and the settlement dated 09.06.2017 arrived at between the parties, quashing of FIR No. 510/2015, registered under sections 406/498A IPC at Police Station Dwaraka North, Delhi, is sought. 2.
The said FIR was registered on a complaint of respondent No.2 apropos criminal acts against her by the petitioners and her late husband. She and her son have moved out of the matrimonial home in terms of the aforesaid settlement and have now been assured of some sort of support, both for herself and for her minor son, on receipt of her minor son's share in the ancestral property. No objection of respondent No.2, recorded on the
previous date i.e. on 20.11.2018, reads as under:- "
This petition seeks quashing of FIR No. 510/2015 registered under sections 406/498A IPC at Police Station Dwarka North on the basis of a settlement arrived at between the parties. The matrimony has ended by way of a decree of divorce by mutual consent. The lis has been settled in terms of the mediation settlement dated 09.06.2017. The custody of the son of P-2 and R-1 is to remain with the latter i.e. mother-the complainant. Since the matrimony has ended and the settlement is without any financial security to the mother or for the son Master Rishabh Jeph, the petitioners have now agreed that an amount of Rs. 1,00,000/- shall be given to the mother for the benefit of the son who is presently attending a school in class VI.
Additionally, petitioner no. 1, the grandfather of Master Rishabh Jeph, states that this grandson is extremely dear to him and he surely would like to make some financial arrangement for him. He assures the Court that from his share of ancestral property, a fair portion will be given/pledged for Master Rishabh Jeph. Let his assurance be secured by way of an affidavit/undertaking of the petitioner no. 1 who represents his son-P-2 who is stated to be of unsound mind presently. Since no such medical certificate is attached to the petition declaring him of a person of unsound mind, therefore, at the moment, P-2 cannot be so construed or accepted by the Court. The aforesaid amount of Rs. 1,00,000/- shall be deposited into the bank account of R-2 on or before 20.11.2018 being bank account no. 51101887861 (in the name of Urmila Meena), Dosa Branch, Rajasthan, IFSC SBIN0032002.
Let an affidavit/undertaking in terms of the above, along with the supporting documents; be filed before the next date. Details of all assets of P-1 shall also be stated in the affidavit. All parties, except for P-1, are exempted from appearance on the next date.
The learned counsel for R-2 submits upon instructions
that the complainant would not like to pursue the complaint any further and is anxious to secure her son's future. In view of the above, re-notify on 06.12.2018." 3.
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." 4.
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.
Similarly, for the offences alleged to have been 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. In the former case it can refuse to accept the settlement and 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 charge-sheet 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." 5.
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...."
6.
Since the complainant herself does not wish to pursue her complaint against the petitioners, the substratum of the complaint/FIR dissipates and any further proceeding apropos the same FIR would be an exercise in futility. Since the parties have settled their matrimonial lis amicably, nothing survives in the matter. It would therefore be in the interest of justice to quash the FIR in question. Therefore, FIR No. 510/2015, registered under sections 406/498A IPC at Police Station Dwaraka North, Delhi, and all the proceedings emanating therefrom are quashed.
7.
At this stage, petitioner No.1 - grandfather, desires to meet his grandson. The grandparents are permitted to meet the grandson at least once in two months for a period of 10 hours with prior intimation to respondent No.2-mother of Master Rishabh Jeph. Schedule of such meetings shall be worked out between the learned counsel for the parties.
The grandparents would also be free to meet their grandson during Holi/Diwali and for a few days in summer and winter vacations, in consultation with respondent No.2-mother.
8.
The petition, alongwith pending applications, stand disposed-off in terms of the above terms.
NAJMI WAZIRI, J.
DECEMBER 06, 2018 sb