Himachal Pradesh High Court
Ashok Kumar vs Suniti on 10 January, 2017
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr.MMO No. 317 of 2016
Decided on:__03.01.2017
_________________________________________________________
.
Ashok Kumar
.....Petitioner
Versus
Suniti
......Respondent
_______________________________________________________________
Coram
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
of
1 Whether approved for reporting?
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For the petitioner: Mr. Nimish Gupta, Advocate.
rt
For the respondent: Mr. Vinod Thakur, Advocate.
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Chander Bhusan Barowalia, Judge (oral)
The present petition is maintained by the petitioner who was the accused No. 1/respondent before the learned Trial Court (hereinafter to called as "accused No. 1"), under Section 482 of the Code of Criminal Procedure (hereinafter to be called as "the Code") for quashing the impugned judgment, dated 27.06.2016, (arising out of a private complaint) passed by the learned Chief Judicial Magistrate, Chamba, District Chamba, H.P. in case No. 397-1-2008, under Sections 495, 496 and 506 of the Indian Penal Code, on the basis of compromise, whereby accused No. 1 was convicted 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:53:08 :::HCHPfor Commission of Offence punishable under Section 495 of IPC.
2. Briefly stating the facts, giving rise to the present .
petition are that, the marriage between the complainant and accused No. 1 was solemnized in the year 1994, as per Hindu customs and tradition, after completion of marriage ceremony, the complainant came to know that accused No. of 1 was already married to Smt. Resho, who was the accused No. 2/respondent before the learned Trial Court (hereinafter rt to called as "accused No. 2"). When the complainant came to know about the previous marriage of accused No. 1, she disclosed the same with her parents, but accused No. 1 persuaded the complainant and her family members that he has no child from the previous marriage, he concealed the factum of his previous marriage, so that the marriage between him and the complainant could take place. It is alleged that the complainant lived with the accused for one year, but no child was born, as a result of which accused No. 1 & 2 started maltreating the complainant and she took shelter in her parental house. The father of the complainant has tried his best to convince accused No. 1 that he should take care of her, as she was his married wife, but the behavior ::: Downloaded on - 15/04/2017 21:53:08 :::HCHP of accused No. 1 did not changed and he even became cruel. On May, 1995, accused No. 1 & 2 have poured kerosene oil over the complainant, in order to set her on fire, .
but some persons came on the spot and helped the complainant. Thereafter, the complainant never visited the house of accused No. 1. The complainant was totally deserted and neglected by the accused No. 1, due to which of she filed an application under Section 125 of Cr.PC against the accused No. 1. On 03.09.1998 during the pendency of the rt said application accused No. 1 again persuaded the complainant that, in case, she withdraws the application, he will take her back and also provide her maintenance. The complainant being a rustic villager trusted him and withdrew the application. The complainant agreed to live with accused No. 1, however accused No. 1 & 2 again given beating to the complainant and threatened her that, in case, she takes any action against them they will kill her. Feeling aggrieved from the conduct of accused No. 1 & 2, the complainant filed a complaint, under Sections 385, 387, 494, 495, 496 and 506-II of IPC. The Police has filed the challan under Sections 494, 495 & 506 of IPC. However, on 14.06.2007, due to some technical defect accused No. 1 was discharged from the learned Court ::: Downloaded on - 15/04/2017 21:53:08 :::HCHP below. It is alleged that accused No. 1 has willfully married again during the life time of accused No. 2 and further concealed the factum of previous marriage at the time of .
getting married with the complainant and as such, liable to be dealt under Section 494, 495, 496 and 506 of IPC.
3. The learned Court below has allowed the complaint filed by the complainant, under Sections 494, 495, of 496 and 506 of IPC and convicted accused No. 1, Ashok Kumar for the commission of offence punishable under rt Section 495 of IPC, on the other hand, Smt. Resho was acquitted from the offence punishable under Section 506 of IPC. Hence the present petition.
4. I have heard the learned counsel for the parties and gone the record carefully.
5. Learned counsel for the parties have argued that now both the parties have entered into a compromise, vide (Annexure P-2), and do not want to pursue the case against each other, no purpose will be served by keeping the proceedings against accused No. 1, so the judgment of conviction, dated 27.06.2016, against which the appeal is pending be quashed.
::: Downloaded on - 15/04/2017 21:53:08 :::HCHP6. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the entire record in detail.
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7. Their Lordships of the Hon'ble Supreme Court B.S. Joshi and others vs. State of Haryana and another, (2003) 4 SCC 675, have held that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, section of 320 would not be a bar to the exercise of power of quashing. It is well settled that the powers under section 482 rt have no limits. Of course, where there is more power, it becomes necessary to exercise utmost care and caution while invoking such powers. Their Lordships have held as under:
[6] In Pepsi Food Ltd. and another v. Special Judicial Magistrate and others ((1998) 5 SCC 749), this Court with reference to Bhajan Lal's case observed that the guidelines laid therein as to where the Court will exercise jurisdiction under Section 482 of the Code could not be inflexible or laying rigid formulae to be followed by the Courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is well settled that these powers have no limits. Of course, where there is more power, it becomes necessary to exercise utmost care and caution while invoking such powers.
[8] It is, thus, clear that Madhu Limaye's case does not lay down any general proposition limiting power of quashing the criminal proceedings or FIR or complaint as vested in Section ::: Downloaded on - 15/04/2017 21:53:08 :::HCHP 482 of the Code or extraordinary power under Article 226 of the Constitution of India. We are, therefore, of the view that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, Section 320 would not be a bar to the exercise of power of quashing. It is, however, a different matter depending .
upon the facts and circumstances of each case whether to exercise or not such a power.
[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 of Code.
8. Their Lordships of the Hon'ble Supreme Court in rt Preeti Gupta and another vs. State of Jharkhand and another, (2010) 7 SCC 667, have held that the ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. The tendency of implicating the husband and all his immediate relations is also not uncommon. At times, even after the conclusion of the criminal trial, it is difficult to ascertain the real truth.
Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. The criminal trials lead to immense sufferings for all concerned. Their Lordships have further held that permitting complainant to pursue complaint would be abuse of process of law and the complaint against the ::: Downloaded on - 15/04/2017 21:53:08 :::HCHP appellants was quashed. Their Lordships have held as under:
[27] A three-Judge Bench (of which one of us, Bhandari, J. was .
the author of the judgment) of this Court in Inder Mohan Goswami and Another v. State of Uttaranchal & Others, 2007 12 SCC 1 comprehensively examined the legal position. The court came to a definite conclusion and the relevant observations of the court are reproduced in para 24 of the said judgment as under:-
"Inherent powers under section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution of and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court rt would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute."
[28] We have very carefully considered the averments of the complaint and the statements of all the witnesses recorded at the time of the filing of the complaint. There are no specific allegations against the appellants in the complaint and none of the witnesses have alleged any role of both the appellants.
[35] The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection.
36. Experience reveals that long and protracted criminal ::: Downloaded on - 15/04/2017 21:53:08 :::HCHP trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The .
process of suffering is extremely long and painful.
[38] The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest of affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration rt the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law. We direct the Registry to send a copy of this judgment to the Law Commission and to the Union Law Secretary, Government of India who may place it before the Hon'ble Minister for Law & Justice to take appropriate steps in the larger interest of the society.
9. Their Lordships of the Hon'ble Supreme Court in Jitendra Raghuvanshi and others vs. Babita Raghuvanshi and another, (2013) 4 SCC 58, have held that criminal proceedings or FIR or complaint can be quashed under section 482 Cr.P.C. in appropriate cases in order to meet ends of justice. Even in non-compoundable offences pertaining to matrimonial disputes, if court is satisfied that parties have settled the disputes amicably and without any ::: Downloaded on - 15/04/2017 21:53:08 :::HCHP pressure, then for purpose of securing ends of justice, FIR or complaint or subsequent criminal proceedings in respect of offences can be quashed. Their Lordships have held as .
under:
[13] As stated earlier, it is not in dispute that after filing of a complaint in respect of the offences punishable under Sections 498A and 406 of IPC, the parties, in the instant case, arrived at a mutual settlement and the complainant also has sworn an affidavit supporting the stand of the appellants. That was the of position before the trial Court as well as before the High Court in a petition filed under Section 482 of the Code. A perusal of the impugned order of the High Court shows that because the mutual rt settlement arrived at between the parties relate to non- compoundable offence, the court proceeded on a wrong premise that it cannot be compounded and dismissed the petition filed under Section 482. A perusal of the petition before the High Court shows that the application filed by the appellants was not for compounding of non-compoundable offences but for the purpose of quashing the criminal proceedings.
[14] The inherent powers of the High Court under Section 482 of the Code are wide and unfettered. In B.S. Joshi , this Court has upheld the powers of the High Court under Section 482 to quash criminal proceedings where dispute is of a private nature and a compromise is entered into between the parties who are willing to settle their differences amicably. We are satisfied that the said decision is directly applicable to the case on hand and the High Court ought to have quashed the criminal proceedings by accepting the settlement arrived at.
[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 ::: Downloaded on - 15/04/2017 21:53:08 :::HCHP 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, in order to do complete justice in the of matrimonial matters, the courts should be less hesitant in exercising its 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 rt material on record, that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed. We also make it clear that exercise of such power would depend upon the facts and circumstances of each case and it has to be exercised in appropriate cases in order to do real and substantial justice for the administration of which alone the courts exist. It is the duty of the courts to encourage genuine settlements of matrimonial disputes and Section 482 of the Code enables the High Court and Article 142 of the Constitution enables this Court to pass such orders.
[17] In the light of the above discussion, we hold that the High Court in exercise of its inherent powers can quash the criminal proceedings or FIR or complaint in appropriate cases in order to meet the ends of justice and Section 320 of the Code does not limit or affect the powers of the High Court under Section 482 of the Code. Under these circumstances, we set aside the impugned judgment of the High Court dated 04.07.2012 passed in M.C.R.C. No. 2877 of 2012 and quash the proceedings in Criminal Case No. 4166 of 2011 pending on the file of Judicial Magistrate Class-I, Indore."
::: Downloaded on - 15/04/2017 21:53:08 :::HCHP10. Thus, taking into consideration the law as discussed hereinabove, I find that the interest of justice will be met, in case, the conviction and sentence is set aside, .
as the parties have already compromised the matter, vide (Annexure P-2), which is placed on record.
11. Therefore, I find this case to be a fit case to exercise powers under Section 482 of the Code and of accordingly judgment of conviction and sentence, dated 27.06.2016, in criminal case No. 397-1-2008, passed by the learned rt Chief Judicial Magistrate, Chamba, District Chamba, H.P. for commission of offence punishable under Section 495 of IPC, is ordered to be quashed, in order to make the parties to live in peace. Needless to say that the appeal pending before the learned Additional District & Sessions Judge, Chamba, becomes infructuous.
12. The petition is accordingly disposed of alongwith pending applications, if any.
(Chander Bhusan Barowalia) Judge 3rd January, 2017 (raman) ::: Downloaded on - 15/04/2017 21:53:08 :::HCHP