Allahabad High Court
Ishu Kapoor And 3 Others vs State Of U.P. And 2 Others on 27 February, 2020
Bench: Govind Mathur, Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Chief Justice's Court Case :- CRIMINAL MISC. WRIT PETITION No. - 13155 of 2018 Petitioner :- Ishu Kapoor And 3 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Rekha Pundir Counsel for Respondent :- G.A. Hon'ble Govind Mathur,Chief Justice Hon'ble Samit Gopal,J.
Supplementary affidavit filed today is taken on record.
Heard Sri Vikas Rastogi, Advocate holding brief of Mrs. Rekha Pundir, learned counsel for the petitioners and learned AGA for the State.
This writ petition has been filed with the prayer to quash the First Information Report dated 4.5.2018 which has been registered as Case Crime No. 41 of 2018 under Sections 498A, 323, 354, 406 Indian Penal Code, 1860 and 3/4 Dowry Prohibition Act, 1961, Police Station, Mahila Thana, District Gautam Budh Nagar.
Learned counsel for the petitioners, at the very outset, argued that the matter relates to the lodging of a first information report arising out of matrimonial discord between the petitioner no. 1, Ishu Kapoor and Smt. Abha Sood, respondent no. 3.
The factual matrix of the present matter is that the marriage between the petitioner no. 1 and the respondent no. 3 was solemnized on 16.11.2003. Some dispute arose between them, as a result of which, aforesaid first information report was got registered by the respondent no. 3 on 4.5.2018. The present writ petition was filed before this Court with a prayer to quash the same and during the pendency of the present writ petition, the arrest of the petitioners was prayed to be stayed. The petitioner no. 1 is the husband, the petitioner no. 2, Smt. Devendra Kapoor is the mother-in-law, petitioner no. 3, Narendra Kapoor is the father-in-law and the petitioner no. 4, Km. Swati Kapoor is the sister-in-law/Nand of the first informant, respondent no. 3.
On the matter being taken up by a coordinate Bench of this Court, the same was referred to the mediation centre for an effort of mediation between the parties vide order dated 22.5.2018. It was further directed that till further orders, the petitioners shall not be arrested in pursuance of the registered first information report. The matter was taken up before the mediation centre and as per its report dated 31.8.2018, the petitioner no. 1 was present on one date but the first informant failed to appear on all the dates fixed therein and as such the mediation failed. Subsequently, the couple settled their disputes out of Court for which a deed of settlement dated 11.12.2018 was drawn between them on the terms that the husband shall pay a total amount of Rupees Twelve Lacs to his estranged wife in two instalments mentioned therein and also Rupees One Lac was paid in lieu of the jewellery as was with the husband. The said deed of settlement is annexed as Annexure SA-1 to the supplementary affidavit dated 9.5.2019. In the said deed of settlement in paragraph no. 1, it is mentioned that the parties shall not initiate any further case/motion/claim between them in future and also the cases between them initiated prior to the settlement will be decided in which both of the parties will assist for the same. Thereafter, a petition under Section 13-B of the Hindu Marriage Act , 1955 titled Abha Sood Vs. Ishu Kapoor being Divorce Petition No. 1025 of 2018 was filed before the Principal Judge/Family Court, Gautam Budha Nagar which was allowed vide judgment and order dated 11.9.2019 passed by the Principal Judge, Family Court, Gautam Budha Nagar by which the marriage between the parties solemnized on 16.11.2013 has been dissolved. A decree to the said effect has also been drawn.
In the supplementary affidavit dated 27.2.2020, another deed of settlement dated 11.9.2019 was filed in which in paragraph no. 6 both the parties therein have agreed to get the present writ petition decided in terms of the said compromise.
The petition is, thus, being decided in terms of the said compromise.
This Court under Article 226 of the Constitution of India has powers to quash criminal proceedings as has been held by a catena of earlier decisions. The dispute in the present matter is arising out of a matrimonial relationship between the petitioner no. 1 and respondent no. 3. The parties have settled their disputes amicably and have drawn deeds for settlement. One such settlement through settlement deed dated 11.12.2018 was acted upon between the parties and ended in a divorce vide judgment and order dated 11.9.2019. The present proceedings arise out of a first information report being lodged by the respondent no. 3.
In the case of B.S. Joshi & Ors. Vs. State of Haryana & another (2003) 4 SCC 675, the Apex Court has held as follows:
"2.The question that falls for determination in the instant case is about the ambit of the inherent powers of the High Courts under Section 482, Code of Criminal Procedure (Code) read with Articles 226 and 227 of the Constitution of India to quash criminal proceedings. The scope and ambit of power under Section 482 has been examined by this Court in catena of earlier decisions but in the present case that is required to be considered in relation to matrimonial disputes. The matrimonial disputes of the kind in the present case have been on considerable increase in recent times resulting in filing of complaints by the wife under Sections 498A and 406, IPC not only against the husband but his other family members also. When such matters are resolved either by wife agreeing to rejoin the matrimonial home or mutual separation of husband and wife and also mutual settlement of other pending disputes as a result whereof both sides approach the High Court and jointly pray for quashing of the criminal proceedings or the First Information Report or complaint filed by the wife under Sections 498A and 406 IPC can the prayer be declined on the ground that since the offences are non-compoundable under Section 320 of the Code and, therefore, it is not permissible for the Court to quash the criminal proceedings or FIR or complaint.
4.The High Court has, by the impugned judgment, dismissed the petition filed by the appellants seeking quashing of the FIR for in view of the High Court the offences under Sections 498A and 406 IPC are non-compoundable and the inherent powers under Section 482 of the Code cannot be invoked to bypass the mandatory provision of Section 320 of the Code. For its view, the High Court has referred to and relied upon the decisions of this Court in State of Haryana & Ors. V. Bhajan Lal & Ors. [1992 Supp.(1) SCC 335]; Madhu Limaya V. The State of Maharashtra [(1977) 4 SCC 551; and Surendra Nath Mohanty & Anr. Vs. State of Orissa [(1999) 5 SCC 238].
14.There is no doubt that the object of introducing Chapter XX-A containing Section 498A in the Indian Penal Code was to prevent the 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 hyper-technical view would be counter productive and would act against interests 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 XXA of Indian Penal Code.
15.In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code."
Subsequently, in Narendra Singh Vs. State of Punjab (2014) 6 SCC 466, after considering the decision in Gian Singh Vs. State of Punjab (2012) 10 SCC 303, in para 29, the Apex court held as under:
"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."
Further in the case of Gold Quest International Private Limited Vs. The State of Tamil Nadu and ors. (2014) 15 SCC 235, the Apex Court has held that the disputes which are substantially matrimonial in nature or civil property disputes with criminal facets, if the parties have entered into settlement and it has become clear that there are no chances of conviction, there is no illegality in quashing the proceedings of matter.
The present matter as arises out of a matrimonial dispute in which the parties have entered into a compromise. In light of the law discussed above the proceedings in question deserves to be quashed.
The writ petition is, thus, allowed. The first information report and all consequential proceedings of Case Crime No. 41 of 2018 under Sections 498A, 323, 354, 406 Indian Penal Code, 1860 and 3/4 Dowry Prohibition Act, 1961, Police Station, Mahila Thana, District Gautam Budh Nagar are hereby quashed.
No order as to costs.
Order Date :- 27.2.2020 AKK / AS Rathor (Samit Gopal,J.) (Govind Mathur,C.J.)