Allahabad High Court
Ashish Mishra vs The State Of U.P And Anr. on 8 March, 2013
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 9 Case :- U/S 482/378/407 No. - 1539 of 2012 Petitioner :- Ashish Mishra Respondent :- The State Of U.P And Anr. Petitioner Counsel :- Rajeev Srivastava Respondent Counsel :- Govt. Advocate,Alok Kumar Srivastava,Kamal Kishore,Punit Kumar Shukla Hon'ble Zaki Ullah Khan,J.
Instant petition has been filed under section 482 Cr.P.C. praying that the court may please to quash the entire proceeding of complaint case no. 814 of 2010 P.S. Kotwali Shahar, District Hardoi, under sections 498A, 504 IPC and Section ¾ D.P. Act, (Smt. Shushma Mishra vs. Ashish Mishra and others).
The applicants have mentioned in the application that on 11.04.2012, the Additional Civil Judge (J.D.)/ Judicial Magistrate, Court No. 1, Hardoi, summoned all the accused persons under sections 498A, 506 I.P.C. and Section 3/4 D.P. Act, in complaint case no. 814 of 2010.
The case as narrated by the applicants are that the marriage of applicant no. 1 and O.P. No. 2 was solemnized as per Hindu retual on 23.04.2000 and during their wedlock three children (two daughters and one son) were born. The children are studying in Kannauj and living with applicant no. 1. Some dispute arose between the O.P. No. 2 and the family of applicant no. 1. Thereafter, opposite party no. 2 filed an application before the Civil Judge (Sr. Division), bearing Misc. Application No. 6 of 2007, under section 125 Cr.P.C. demanding Rs. 5000/- per month for livelihood of herself and her three children and Rs. 50,000/- for education and other expenses of the children. On the application moved by the O.P. No. 2, notices were issued to the applicant no. 1 and thereafter, the matter was referred to the District Legal Services Authority, Kannauj and on 22.11.2007 a compromise was executed between applicant no. 1 and opposite party no. 2 before Civil Judge (Sr. Division) Kannauj. According to the compromise, the applicant no. 1 paid Rs. 50,000/- to O.P. No. 2 and also given an undertaking to the Aryavrat Grameen Bank, Branch Fatehpur Yashoda, District Kannauj to transfer Rs. 5,000/- per month to the saving a/c No. 2914480 of the O.P. No. 2 at Chief Post Office, Hardoi. Since then both parities were living separately. The applicant no. 1 is residing with his children, mother and brother and petitioner no. 3 the sister of the petitioner no. 1 is residing with his husband, who is petitioner no. 5 at Farrukhabad. The O.P. No. 2 violated the condition of compromise and left all the children with the petitioner, who is looking after the children and they are studying at Sarashwati Shishu Mandir, Kannauj. The O.P. No. 2 moved an application under section 156 (3) Cr.P.C. before the CJM. Hardoi on 18.10.2010 alleging therein that on 31.07.2010 at about 12.00 noon applicants forcefully abducted the opposite party no. 2 in his jeep at Subhash Nagar, Hardoi, from her father's house and when the opposite party no. 2 objected she was beaten and slapped and thereafter her mother and father came at the place of the incident and when the father and mother and other persons came for the help then petitioners left the opposite party no. 2 and started the abusing and advanced the life threat to the opposite party no. 2 and left the place. No specific role has been assigned to any one, however, by the impugned order the learned magistrate Hardoi (court no.1) summoned all the accused persons/applicants without going through the record and circumstances of the case after treating the application under section 156 (3) Cr.P.C. on complaint.
The O.P. No. 2 did not mention anywhere regarding the compromise between the parties in the year 2007. The applicants have no option except to seek shelter of this Court under section 482 Cr.P.C. for quashing the proceedings pending in the court of Judicial Magistrate, Hardoi.
The learned counsel for the O.P. No. 2 argued that the O.P. No. 2 has submitted counter affidavit and specific allegations have been levelled against the applicants in the complaint. She has also cleared that the applicants have not deposited any amount in her account as alleged by them and in case of the compromise between the parties, the applicants did not deposit any money with her account. She was living along with her parents and she was forced to go to her parents and she has been forcibly taken away from her parents house and beaten up.
Learned counsel for the applicants filed rejoinder affidavit stating therein that all the arguments set up by the O.P. no. 2 has been denied and argued that there is specific mention in the compromise between the parties before the Civil Judge, Sr.Division, Kannauj, it is submitted that the worthiness of the O.P. No. 2 is suspected and their version are contrary from the record on the one hand she moved an application before the civil judge (Sr. Divsion), Kannauj stating therein that she is living separately on the rented house and on the other hand she alleges that she was abducted from the parents house.
Heard learned counsel for the applicants, learned counsel for O.P. No. 2 as well as learned AGA.
Learned counsel for the applicants sited (2003) 4 SCC 675 B.S. Joshi and others vs. State of Haryana and another ? A. Criminal Procedure Code, 1973- Ss. 482 and 320- Inherent powers under S. 482- Exercise of, in relation to matrimonial disputes- Scope- Non-compoundable offences (offences under Sc. 498A and 406 IPC- Quashing of criminal proceedings or FIR or complaint by High Court in respect of ? Held, permissible since S. 320 does not limit or affect the powers under S. 482- Constitution of India- Arts. 226 and 136- Interference in criminal matters- Quashing of criminal proceedings or FIR or complaint- Permissibility of, where non-compoundable offences involved.
B. Criminal Procedure Code, 1973- S. 482- Powers under- Held, have no limits- Therefore, utmost care and caution required while invoking such powers.
C. Family Law- Matrimonial disputes/offences- Duty of court- Held, is to encourage genuine settlements of matrimonial disputes.
Learned counsel for the applicants reiterated that the Apex Court has clearly directed the High Court may interfere in these types of cases because this is nothing but harassment and the offences are non-compoundable and the allegation levelled them are not substantiated by any police report and a baseless and biased application has been moved on 18.10.2010 whereas the alleged incident took place on 31.07.2010. As per the compromise entered between the parties the presence of O.P. No. 2 was not supposed to be at Kannauj, because as per compromise the parties started residing separately. During the course of argument, learned counsel for the applicants argued that let papers be summoned in the court and the applicant no. 1 is ready to pay alimony to the O.P. No. 2 for life as per her desire. There is a good and bonafide gesture on the part of applicants. All the applicants have been made accused in the present case. The presence of applicant nos. 1, 2 and 3 can be presumed. The applicant nos. 4 and 5 are sister and brother in law of the applicant no. 1. Applicant No. 4 has been married and living separately along with her husband at different place. The Hon'ble Apex Court has held that it is the duty of the court to encourage justice. The duty of the court to encourage genuine settlements of matrimonial disputes. The O.P.No. 2 alleged that she has not been given the entire money as entered into compromise between the parties. The applicants have however, filed certified copies which pointed out that after the compromise and settlements was registered between the parties and as per settlement, they have parted their ways and the applicants no. 1 was taking care of three children (offspring) and get the matrimonial dispute, solved. Whereas the O.P. No. 2 went to her parent's place and started residing there and in the instant case of matrimonial dispute, she hatched a plan and moved application under section 156 (3) Cr.P.C. on 18.10.2010 regarding the incident which alleged to have taken place on 31.07.2010. As alleged by her, she was abducted and thrown to her father's place and was beaten up by not only by the applicant his father and mother, but by his sister and brother in law, who are living separately in different district. Thus, all the circumstances attract the court's discretion that there is no dispute that they have entered into agreement in the year 2007 before the Civil Judge (Sr. Division), Kannauj and after three years, she immediately started another round of quarrel and started moving complaints against the applicants. The bonafide of this fact can be assessed from the statement of the counsel of the applicants. The counsel reiterated in the Court that the applicants no. 1 is ready to pay life time alimony to the O.P. No. 2, in case she agrees to bury the differences. These facts can also be assessed from the fact that he is having the custody of the children and looking after their livelihood, on the contrary O.P. No. 2 is living separately and moves complaints only for the alimony. She has received Rs. 50,000/- in pursuance of the compromise between the parties and after laps of three years, she again tried to play the second innings of the matrimonial dispute. Hon'ble Apex Court has held that it would be important to note that High Court have got absolute powers to quash the proceedings. Under section 482 Cr.P.C. powers have no limits, but at the same time utmost care and caution required by invoking such powers. The duty of the Court is to encourage genuine settlement of the matter in dispute, which is permissible for High Court to quash the criminal proceedings or the FIR or the complaint. The Hon'ble Apex Court has held that since Section 320 does not limit or affect the power under section 482 Cr.P.C., therefore, the High Court can quash the criminal proceedings or FIR or complaint non-compoundable offences were involved. The appellants are being harassed by O.P. No. 2. The O.P. No. 2 is vitiating the atmosphere and she is trying to harass the applicants and the children and is trying to interfere in their peaceful life. It has been established on record that it is the O.P. No. 2 who is mischief monger and not the applicant no. 1. harassing attitude is on the part of O.P. No. 2 . On the contrary, the applicant no. 1 is living peacefully along with all the three children and taking good care, but the O.P. No. 2 is trying pock her nose in their peaceful life by creating vicious atmosphere by invent as false and vexatious version in her complaints.
In view of the decision of the Hon'ble Apex Court in B.S. Joshi and other (supra) case, I am of the opinion that it is a fit case in which the Court should exercise discretion for allowing the application. Hence, the application under section 482 Cr.P.C. is allowed. The proceedings of complaint case no. 814 of 2010, P.S. Kotwali Shahar, District Hardoi, under sections 498A, 504 IPC and Section ¾ D.P. Act (Smt. Shushma Mishra vs. Ashish Mishra and others), are hereby quashed. No order as to costs.
Order Date :- 8.3.2013 v.k.updh.