Allahabad High Court
Vivek Vanswar And Others vs State Of U.P. Thru. Secy. Home And Others on 18 January, 2018
Bench: Devendra Kumar Upadhyaya, Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?A.F.R. Court No. - 9 Case :- MISC. BENCH No. - 22241 of 2017 Petitioner :- Vivek Vanswar And Others Respondent :- State Of U.P. Thru. Secy. Home And Others Counsel for Petitioner :- Rakesh Kumar Counsel for Respondent :- Govt. Advocate,K.K.Srivastava Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Dinesh Kumar Singh,J.
(Delivered by D.K. Singh, J.)
1. The present writ petition has been filed by the petitioner, Vivek Vanswar and five others who are his relatives. Petitioner no.1 is the husband of respondent no.3. This petition seeks quashing of the First Information Report dated 12.05.2017 lodged by respondent no.4 at Case Crime No.167 of 2017, under Sections 323, 504, 506, 498A I.P.C. and Section 3/4 Dowry Prohibition Act, Police Station Vikas Nagar, District Lucknow.
2. The marriage between petitioner no.1 and respondent no.3 was solemnised on 11.02.2016 in accordance with Hindu rites, customs and rituals at Gurunanak Lawn Jankipuram Garden, Kursi Road near St. Merry Polyclinic, Lucknow. It appears that the marriage has not been a successful one and the family discord and bickering started soon after the marriage and as a consequence thereof respondent no.3 lodged the impugned First Information Report against the petitioners.
3. This court vide order dated 23.10.2017, on the joint request of the parties referred the matter to the Mediation and Conciliation Centre of this Court. The parties have settled their dispute in the Mediation and Conciliation Centre and a 'Settlement Agreement' dated 22.12.2017 has also been signed by petitioner no.1 and respondent no.3 with their respective counsels and two mediators. The main terms of the settlement arrived at between the parties are extracted hereinbelow:-
"6. That both the parties have mutually agreed that the Husband Mr. Vivek Vanswar shall pay a sum of Rs. 12,00,000.00(Rupees Twelve Lacs Only) in total in two installments to the wife Ms. Meenakshi Verma as future maintenance and permanent alimony. After which the wife Ms. Meenakshi Verma shall not claim any maintenance or alimoney from the husband in future.
The first installment of the DD deposited in the Mediation Centre by the Vivek Vanswar (Husband) will be handed over to Ms Meenakshi Verma (Wife) after signing this Settlement/ Agreement. In pursuance whereof the detail of the Demand Draft deposited as the first installment of the sum of Rs. 6,00,000.00 (Rupees Six Lacs only) through two Demand Drafts is as under:-
i) D.D. No.002372 Dt. 12.12.2017 amount Rs.400000.00 issued by HDFC Bank, Mahmoodabad, Sitapur
ii) D.D. No.018189 Dt. 11.12.2017 amount Rs.200000.00 issued by Punjab National Bank, Mahmoodabad, Sitapur And the next installement of Rs.6,00,000.00 (Rupees Six Lacs only) shall be handed over to her after obtaining the decree of divorce from the Family Court on 14th of July,2018. In the mean time Mr. Vivek Vanswar will submit the DD of the rest of the amount by 2nd or 3rd July, 2018 (i.e. 15 days before obtaining the Final decree of divorce).
7. That the said Bank Drafts are in the name of ?Meenakshi Verma? and shall be handed over to the her after she submits the certified copy of the petition filed u/s 13-B Hindu Marriage Act of Family Court, Lucknow.
8. That the parties have declared that neither any civil or criminal case is filed/pending against each other nor shall initiate any civil or criminal proceeding against the each other or to the parents or the relative of either parties.
9. That both the parties have further agreed not to interfere in each others life after signing this Settlement/Agreement and will live their life as an individual.
10. By signing this Agreement the Parties hereto state that they have no further claims or demands against each other with respect to Writ Petition No.22241 of 2017 [(M/B) Criminal] and all disputes and differences in this regard have been amicably settled by the parties hereto through the process of Mediation/conciliation."
4. Parties are present before this Court today. Respondent no.3 categorically says that she does not want to pursue any case against the petitioners and she has accepted the terms and conditions of the settlement/agreement. She is wholly satisfied with the settlement arrived at between the parties. She further says that the proceedings including the impugned F.I.R. be quashed against the petitioners as no grievance of her is left unaddressed.
5. The object of the criminal prosecution is to punish guilty for committing the offence. When the result of the prosecution is well known that it would result in acquittal inasmuch as the complainant herself would not support the prosecution case, it would not serve any purpose for allowing the prosecution to go on. When it is absolutely crystal clear that the continuance of the criminal proceedings would be an exercise in futility, the High Court should not hesitate to quash such proceedings if the complainant herself comes before the Court and says that the criminal proceedings initiated by her be quashed against the accused. It is also well known fact that there has been a phenomenal surge in cases under Section 498A I.P.C. but there have been only a very few convictions.This fact itself shows that prosecution under Section 498A I.P.C. is quite often used as a potent weapon to settle score or for oblique purposes. Keeping in view the aforesaid facts, the High Court should quash the criminal proceedings arising out of the matrimonial discord particularly when complainant herself comes before a court for quashing of the criminal proceedings initiated by her on the ground that the parties have settled their disputes outside the Court.
6. The Supreme court in the case of B. S. Joshi and others versus State of Haryana and another :(2003) 4 SCC 675 has held that in matrimonial matters it becomes duty of the Court to encourage genuine settlement of matrimonial disputes and considering the special feature of a case where the chances of an ultimate conviction are bleak and no useful purpose would be served by allowing a criminal prosecution to continue in the court and while taking into consideration the special facts should quash the proceedings. In para 14 of the said judgment the Supreme Court has opined as under:-
"14. There is no doubt that the object of introducing Chapter XX-A containing Section 498-A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498-A 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 XX-A of Indian Penal Code"
7. The aforesaid judgment was followed in the case of Nikhil Merchant versus C.B.I. and another : (2008) 9 SCC 677 and Manoj Sharma versus State and others : (2008) 16 SCC 1. However, in Gian Singh versus Station of Punjab: (2010) 15 SCC 118, a two judge bench of the Supreme Court doubted the correctness of these decisions including one in B.S. Joshi's case (supra) and matter has been referred to a three judges bench.
8. In view of the aforesaid references a three judge bench of the Supreme Court in the case of Gian Singh versus State of Punjab and another (2012) 10 SCC 303 considered the questions referred to it and reiterated the ratio of the judgment in B.S. Joshi's case(supra). The Supreme Court in the aforesaid judgment has held that the cases predominantly with civil flavour particularly offences arising out of commercial, financial, mercantile, civil, partnership or other like transactions or the offences arising out of matrimony particularly relating to dowry etc., or the family disputes, where the wrong is basically private or personal in nature and the parties have settled their dispute outside the Court, in these category of cases, the High Court should quash the criminal proceedings if High Court is of the opinion that as a result of compromise between the parties, possibility of conviction is remote or bleak. In para 61 of the aforesaid judgment the Supreme Court has held as under:-
"61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim?s family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."
9. The Supreme Court in the case of Narinder Singh and others versus State of Punjab and another: (2014) 6 SCC 466 while relying on the earlier judgment in Gian Singh's case (supra) has held that the High Court in exercise of its inherent power may quash the criminal proceedings even in those cases which are non compoundable but the parties have settled their disputes between themselves. The relevant para i.e. 29.1 to 29.7 of the aforesaid judgment is extracted hereinbelow:-
"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.
29.2When 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 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 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, those criminal cases having overwhelmingly and pre-dominantly 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 is 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 later 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 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"
10. Considering the compromise arrived at between the parties on 22.12.2017 as extracted above and stand of respondent no.3 before this Court, we are of the considered view that no useful purpose would be served in continuance of criminal prosecution in pursuance of the impugned First Information Report lodged by respondent no.3. Considering the ratio of the aforesaid three judgments of the Supreme Court, it would be appropriate in the facts and circumstances of the case to quash the impugned First Information Report as continuance of the proceedings in pursuance of the impugned FIR would be an exercise in futility.
11. We, therefore, allow the writ petition and quash the proceedings of the First Information Report dated 12.05.2017 lodged by respondent no.4 at Case Crime No.167 of 2017, under Sections 323, 504, 506, 498A I.P.C. and Section 3/4 Dowry Prohibition Act, Police Station Vikas Nagar, District Lucknow.
Order Date :- 18.1.2018 prateek