Jammu & Kashmir High Court
Anita Sharma And Ors. vs State Of J&K; on 19 December, 2018
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRMC No.432/2018 & IA No.01/2018
Date of order: 19.12.2018
Anita Sharma and ors. Vs. State of J&K
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For Petitioner(s) : Mr. Aman Bhagotra, Advocate.
For respondent (s) : None.
i) Whether to be reported in
Digest/Journal : Yes/No.
ii) Whether approved for reporting
in Press/Media : Yes/No.
1. Through the medium of instant petition filed under Section 561-A of the Code of Criminal Procedure, petitioners seek quashing of FIR No.35/2015 dated 25.06.2015 registered with Police Station Women Cell Jammu, under Section 498-A/109 RPC against the petitioner Nos. 2 & 3; as also quashing of Police Challan No.45/2015 titled State Vs. Deepak Sharma and ors., pending in the Court of learned Sub Judge (Excise Magistrate) Jammu alongwith all proceedings arising out of the said police challan, on account of compromise.
2. Pursuant to order dated 07.09.2018, Registrar Judicial of this Court has placed on record the statements of petitioners and their counsel. These statements read as under:-
Statement of Anita Sharma (petitioner no.1); Age : 34 years ; W/o Deepak Kumar D/o Late Sh.Sat Pal Sharma R/o Ward No.1, Police Lines, Kathua, at present 175, Jawahar Nagar, New Plot, District Jammu on oath today i.e. 06.12.2018 CRMC No.432/2018 Page 1 of 8 Stated that I have filed a complaint u/s 498-A / 109 RPC which culminated into Police Challan No.45/2015 titled State V/s Deepak Sharma and ors. pending in the Court of Learned Sub Judge (Excise Magistrate) Jammu. During the pendency of the Police Challan , I have reached into a amicable outside court settlement and living with petitioner no.2 as wife and husband and petitioner no.3 (my mother in law) is also staying in the same house for the last nine months. I have also executed a compromise deed dated 07.07.2018 with petitioner no.2. I admit my signature on the said compromise deed, which is on the court file as annexure - C and admit all the contents of the compromise deed as true and correct. I, therefore, pray the Hon'ble Court to allow the petition and quash the FIR No.35/2015 dated 25.05.2015 and Police Challan No.45 /2015.
Statement of Deepak Sharma (petitioner no.2); Age : 33 years ; S/o Late Sh.Radhey Sham Sharma 175, Jawahar Nagar, New Plot, District Jammu on oath today i.e. 06.12.2018 Stated that petitioner no.1 filed a complaint u/s 498-A / 109 RPC which culminated into Police Challan No.45/2015 titled State V/s Deepak Sharma and ors. pending in the Court of Learned Sub Judge (Excise Magistrate) Jammu. During the pendency of the Police Challan , I have reached into a amicable outside court settlement and living with petitioner no.1 as husband and wife and petitioner no.3 (my mother) is also staying in the same house for the last nine months. I have also executed a compromise deed dated 07.07.2018 with petitioner no.1. I admit my signature on the said compromise deed, which is on the court file as annexure - C and admit all the contents of the compromise deed as true and correct. I, therefore, pray the Hon'ble Court to allow the petition and quash the FIR No.35/2015 dated 25.05.2015 and Police Challan No.45 /2015.
Statement ofSudeshKumari (petitioner no.3); Age : 57 years ; W/o Late Sh.Radhey Sham Sharma ; 175, Jawahar Nagar, New Plot, District Jammu on oath today i.e. 06.12.2018 Stated that petitioner no.1 filed a complaint u/s 498-A / 109 RPC which culminated into Police Challan No.45/2015 titled State V/s Deepak Sharma and ors. pending in the Court of Learned Sub Judge (Excise Magistrate) Jammu. During the pendency of the Police Challan , I have reached into a amicable outside court settlement with petitioner no.1 and living with petitioner no.1 and 2 under one roof in the same CRMC No.432/2018 Page 2 of 8 house for the last nine months. Petitioner no.1 and 2 have also executed a compromise deed dated 07.07.2018 which is on the court file as annexure - C. I, therefore, pray the Hon'ble Court to allow the petition and quash the FIR No.35/2015 dated 25.05.2015 and Police Challan No.45 /2015.
Statement of Sh.Aman Bhagotra, Advocate for petitioners on oath today i.e.06.12.2018 Stated that the petitioners has tendered the statement in my presence and I do hereby identify the petitioners who has deposed the said statement before the Registrar Judicial.
4. Bare perusal of the statements placed on record, it is evident that parties have entered into a compromise whereby they have settled their differences. It is further stated in the compromise deed that petitioner Nos.1 & 2 are living together and petitioner No.1 has agreed to bring an end to the proceedings/litigation arising out of the FIR No.35/2015 dated 25.06.2015 as also the subsequent challan pending before the Court of learned Sub Judge (Excise Magistrate) Jammu. Petitioner No.1 has also stated in the compromise deed that she will have no objection if the proceedings arising out of the FIR in question are quashed by the Hon'ble High Court.
5. In case titled Ram Singh & anr. Vs. State of Rajasthan reported in 11 (2005) DMC 412, it is held as under :
"6. I have given my anxious consideration to the above arguments and have gone through the case laws cited at the Bar. It is well settled that while exercising inherent jurisdiction the Court should encourage genuine settlements of the cases arising out of matrimonial disputes. While considering the object of introducing Chapter XX-A containing Section 498A, Their Lordships of the Supreme Court in V.S. Joshi and Ors. v. State of Haryana, , have observed as under:
"There is no doubt that the object of introducing Chapter XX-A containing Section 498A in the Indian Penal Code was to prevent torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hypertechnical view would be counter-productive CRMC No.432/2018 Page 3 of 8 and would act against interest of women and against the object for which this provision was added. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XX-A of the Indian Penal Code."
7. The present case also arises out of the matrimonial dispute between the parties. Undisputedly the parties have entered into a written compromise and are living peacefully. However, the question that still emerges for consideration of this Court is whether after conviction having been recorded, the offence can be ordered to be compounded and/or the criminal proceedings pending in the Appellate Court can be ordered to be dropped?
8. In O.P. Dholikia's case (supra), Their Lordships of the Supreme Court while dealing with a case arising out of offence under Section 138 of the Negotiable Instruments Act, considered the question as to what is the proper stage for compounding the offence. Their Lordships found force with the argument of the Counsel for the stage that conviction and sentence having been upheld by all the three Forums, the Apex Court need not interfere with the same as it was open for the parties to enter into a compromise at an earlier stage when the appeal was pending. However, taking into consideration the nature of offence in question and the fact that complainant and the accused had already entered into a compromise, Their Lordships thought it appropriate to grant permission, in the peculiar facts and circumstances of the present case to compound and accordingly annulled the conviction and sentence under Section 138 of the Act.
9. In Govinda's case (supra) the accused were convicted and sentenced for offence under Section 498A, I.P.C. and appeal against conviction was pending before the Appellate Court. During pendency of appeal, the parties entered into a compromise and ultimately invoked inherent jurisdiction of this Court under Section 482, Cr.P.C. This Court refused to invoke inherent jurisdiction for assuming direction to compound the offence under Section 489A, I.P.C. But considering the law laid down by the Apex Court in series of decisions referred to in the judgment, this Court ordered for quashing the proceedings in appeal holding that continuance of proceedings would be an abuse of process of law and would not be in the interest of justice.
10. Evidently thus, the present case is squarely covered by the decision of this Court in Govind and Anr. v. State of Rajasthan, (supra). Therefore, keeping in view the facts and circumstances of the case as stated hereinabove, the continuance of proceedings in appeal pending before the Appellate Court, in my considered view would not be in the interest of justice and keeping the proceedings pending would amount to abuse of the process of Court.
11. In the result, this petition is allowed. The proceedings of Criminal Appeal No. 28/2003 Ram Singh and Anr. v. State of Rajasthan, filed against the judgment and order dated 10.12.2003, pending in the Court of CRMC No.432/2018 Page 4 of 8 Additional Sessions Judge No. 2, Deeg, District Bharatpur are quashed. Necessarily the conviction and sentence under Section 498A, I.P.C. under the judgment and order dated 10.12.2003 passed by the Trial Court stands annulled.
6. In case titled Central Bureau of Investigation vs Sadhu Ram Singla & ors reported in 2017 AIR (SC) 1312. It is apt to reproduce paragraphs 8 to 16 as under:
"8. We have heard learned Additional Solicitor General appearing for the CBI and learned senior counsel appearing for the respondents at length and carefully examined the materials placed on record. We have also taken notice of the fact that the counsel for the appellant in High Court had sought time for filing the reply but no reply was filed. We have also taken notice of the fact that the High Court while quashing the said FIR and consequential proceedings, has relied on the Full Bench judgment of that High Court in the case of Kulwinder Singh & Ors Vs. State of Punjab & Anr., 2007 (4) CTC 769, in which reliance was placed on the judgment delivered by this Court in the case of Mrs. Shakuntala Sawhney Vs. Mrs. Kaushalya Sawhney & Ors., (1980) 1 SCC 63.
9. Learned Additional Solicitor General appearing for the CBI has drawn our attention to the decision of this Court in Manoj Sharma Vs. State & Ors., (2008) 16 SCC 1, wherein it was observed by this Court:
"22. Since Section 320 CrPC has clearly stated which offences are compoundable and which are not, the High Court or even this Court would not ordinarily be justified in doing something indirectly which could not be done directly. Even otherwise, it ordinarily would not be a legitimate exercise of judicial power under Article 226 of the Constitution or under Section 482 CrPC to direct doing something which CrPC has expressly prohibited. Section 320(9) CrPC expressly states that no offence shall be compounded except as provided by that Section. Hence, in my opinion, it would ordinarily not be a legitimate exercise of judicial power to direct compounding of a non-compoundable offence."
10. We further wish to supply emphasis on the judgment delivered by this Court in the case of State of Tamil Nadu Vs. R. Vasanthi Stanley & Anr., (2016) 1 SCC 376, wherein it was observed:
"15. As far as the load on the criminal justice dispensation system is concerned it has an insegregable nexus with speedy trial. A grave criminal offence or serious economic offence or for that matter the offence that has the potentiality to create a dent in the financial health of the institutions, is not to be quashed on the ground that there is delay in trial or the principle that when CRMC No.432/2018 Page 5 of 8 the matter has been settled it should be quashed to avoid the load on the system. That can never be an acceptable principle or parameter, for that would amount to destroying the stem cells of law and order in many a realm and further strengthen the marrows of the unscrupulous litigations. Such a situation should never be conceived of."
11. Further reliance was placed on the decision of this Court in the case of Central Bureau of Investigation Vs. A. Ravishankar Prasad & Ors., (2009) 6 SCC 351, wherein it was held:
"39. Careful analysis of all these judgments clearly reveals that the exercise of inherent powers would entirely depend on the facts and circumstances of each case. The object of incorporating inherent powers in the Code is to prevent abuse of the process of the court or to secure ends of justice."
12. Lastly, reliance was placed upon another judgment of this Court in Central Bureau of Investigation Vs. Maninder Singh, (2016) 1 SCC 389, wherein it was held by this Court:
"19. In this case, the High Court while exercising its inherent power ignored all the facts viz. the impact of the offence, the use of the State machinery to keep the matter pending for so many years coupled with the fraudulent conduct of the respondent. Considering the facts and circumstances of the case at hand in the light of the decision in Vikram Anantrai Doshi case, (2014) 15 SCC 29, the order of the High Court cannot be sustained."
13. Resisting the aforesaid submissions it was canvassed by Mr. Bishwajit Bhattacharya, learned senior counsel appearing for the respondents that High Court has judiciously and rightly considered the facts and circumstances of the present case. Relying upon the judgment of this Court in Gian Singh Vs. State of Punjab & Anr., (2012) 10 SCC 303, learned senior counsel appearing for the respondents strenuously urged that the offences in the present case are not heinous offences. He further drew our attention towards the relevant part of Full Bench judgment of the High Court in Kulwinder Singh & Ors. Vs. State of Punjab & Anr. (supra), which was reproduced in the impugned judgment and the same is reproduced hereunder:
"26. In Mrs. Shakuntala Sawhney v. Mrs. Kaushalya Sawhney & Ors.,(1980) 1 SCC 63, Hon'ble Krishna Iyer, J. aptly summed up the essence of compromise in the following words :-
The finest hour of justice arrives propitiously when parties, despite falling apart, bury the hatchet and weave a sense of fellowship or reunion.CRMC No.432/2018 Page 6 of 8
27. The power to do complete justice is the very essence of every judicial justice dispensation system. It cannot be diluted by distorted perceptions and is not a slave to anything; except to the caution and circumspection, the standards of which the Court sets before it, in exercise of such plenary and unfettered power inherently vested in it while donning the cloak of compassion to achieve the ends of justice. No embargo, be in the shape of Section 320(9) of the Cr.P.C. or any other such curtailment, can whittle down the power under Section 482 of the Cr.P.C."
14. Since the present case pertains to the crucial doctrine of judicial restraint, we are of the considered opinion that encroaching into the right of the other organ of the government would tantamount clear violation of the rule of law which is one of the basic structure of the Constitution of India. We wish to supply emphasis on para 21 of the Manoj Sharma's case (supra) which is as follows:
"21. Ordinarily, we would have agreed with Mr. B.B. Singh. The doctrine of judicial restraint which has been emphasised repeatedly by this Court e.g. in Aravali Golf Club v. Chander Hass (2008) 1 SCC 683 and Govt. of A.P. v. P. Laxmi Devi (2008) 4 SCC 720, restricts the power of the Court and does not permit the Court to ordinarily encroach into the legislative or executive domain. As observed by this Court in the above decisions, there is a broad separation of powers in the Constitution and it would not be proper for one organ of the State to encroach into the domain of another organ."
15. Having carefully considered the singular facts and circumstances of the present case, and also the law relating to the continuance of criminal cases where the complainant and the accused had settled their differences and had arrived at an amicable arrangement, we see no reason to differ with the view taken in Manoj Sharma's case (supra) and several decisions of this Court delivered thereafter with respect to the doctrine of judicial restraint. In concluding hereinabove, we are not unmindful of the view recorded in the decisions cited at the Bar that depending on the attendant facts, continuance of the criminal proceedings, after a compromise has been arrived at between the complainant and the accused, would amount to abuse of process of Court and an exercise in futility since the trial would be prolonged and ultimately, it may end in a decision which may be of no consequence to any of the parties."
7. Further, as the parties have arrived at a compromise, so there would be no chance of conviction in near future in case trial is held and concluded.
8. In view of the above, this petition stands allowed.
CRMC No.432/2018 Page 7 of 89. Consequently, FIR No.35/2015 dated 25.06.2015 registered with Police Station Women Cell Jammu, under Section 498-A/109 RPC against the petitioner Nos. 2 & 3; as also Police Challan No.45/2015 titled State Vs. Deepak Sharma and ors., pending in the Court of learned Sub Judge (Excise Magistrate) Jammu alongwith all proceedings arising out of the said police challan, are quashed in view of compromise arrived at between the parties.
10. Copy of this order be sent to Court below for compliance.
(Sanjay Kumar Gupta) Judge Jammu 19.12.2018 Narinder CRMC No.432/2018 Page 8 of 8