Jammu & Kashmir High Court
Sanjeev Sharma And Ors. vs State And Another on 28 December, 2018
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRMC No.266/2018
Date of order: 28.12.2018
Sanjeev Sharma and ors. Vs. State of J&K and anr.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For Petitioner(s) : Mr. M. L. Gupta, Advocate.
For respondent (s) : None for respondent No.1.
Mr. Sachin Dogra, Advocate for respondent No.2.
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.109/2015 dated 03.05.2015 registered with Police Station Gandhi Nagar Jammu, and the proceedings in the challan under Section 498-A RPC titled State Vs. Sanjeev Sharma, pending in the Court of learned Sub Judge (Special Mobile Judicial Magistrate 1st Class), Jammu, on account of compromise.
2. Pursuant to order dated 21.12.2018, Registrar Judicial of this Court has placed on record the statements of petitioner No.1 and respondent No.2 and their counsel. These statements read as under:-
Statement of Sanjeev Sharma (petitioner No.1); Age:37 years; S/o Late Sh. Surya Man; R/o H. No.477-A, Last Morh, Gandhi Nagar, District Jammu on oath today i.e. 21.12.2018 Stated that as per compromise the mutual divorce has been granted by the learned Additional District Judge (Matrimonial Case), Jammu and Rs.10 lacs has been received by the respondent No.2 towards the permanent alimony. The other cases filed by the respondent No.2 have been withdrawn including the case filed u/s 498-A RPC, which is also CRMC No.266/2018 Page 1 of 7 compromised. I, therefore, pray the Hon'ble Court to allow the petition and quash the proceedings in challan u/s 498-A titled "State Vs. Sanjeev Sharma" pending before the Court of learned Sub Judge (Special Mobile Judicial Magistrate 1st Class- 13th Finance), Jammu. Statement of Sh. M. L. Gupta, Advocate for petitioners on oath today i.e. 21.12.2018 Stated that the petitioner No.1 has tendered his statement in my presence and I do hereby identify the petitioner who has deposed the said statement before the Registrar Judicial.
Statement of Monika Sharma (respondent no.2); D/o Sh. Kuldeep Raj; R/o H. No.53, Subash Nagar, District Jammu on oath today i.e. 21.12.2018 Stated that as per compromise the mutual divorce has been granted by the learned Additional District Judge (Matrimonial Case), Jammu and Rs.10 lacs has been received by me towards the permanent alimony. I have also withdrawn case filed u/s 488 RPC, complaint under Prevention of Domestic Violence Act and has compromised the case filed u/s 498-A RPC and do not want to pursue the case filed u/s 498-A RPC titled "State Vs Sanjeev Sharma" pending before the Court of learned Sub Judge (Special Mobile Judicial Magistrate 1st Class- 13th Finance), Jammu.
Statement of Sh. Amit Pathania, Advocate for respondent No.2 i.e. Monika Sharma on oath today i.e. 21.12.2018 Stated that the respondent No.2 has tendered her statement in my presence and I do hereby identify the respondent who has deposed the said statement before the Registrar Judicial.
3. Bare perusal of the statements placed on record, it is evident that parties have entered into a compromise whereby they have settled their differences. In the above statements it has also been stated that as per compromise the mutual divorce has been granted by the learned Additional District Judge (Matrimonial Case), Jammu and Rs.10 lacs has been received by respondent No.2 towards the permanent alimony and she has also withdrawn case filed u/s 488 RPC, complaint under Prevention of Domestic Violence Act and has compromised the case filed u/s 498-A RPC and does not want to pursue the case filed u/s 498-A RPC titled "State Vs Sanjeev Sharma" pending before the Court of CRMC No.266/2018 Page 2 of 7 learned Sub Judge (Special Mobile Judicial Magistrate 1 st Class- 13th Finance), Jammu.
4. 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 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.
CRMC No.266/2018 Page 3 of 79. 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 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.
5. 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 CRMC No.266/2018 Page 4 of 7 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 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."CRMC No.266/2018 Page 5 of 7
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.
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 CRMC No.266/2018 Page 6 of 7 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."
6. 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.
7. In view of the above, this petition stands allowed.
8. Consequently, FIR No.109/2015 dated 03.05.2015 registered with Police Station Gandhi Nagar Jammu, and the proceedings in the challan under Section 498-A RPC titled State Vs. Sanjeev Sharma, pending in the Court of learned Sub Judge (Special Mobile Judicial Magistrate 1 st Class), Jammu, are quashed in view of compromise arrived at between the parties.
9. Copy of this order be sent to Court below for compliance.
(Sanjay Kumar Gupta) Judge Jammu 28.12.2018 Narinder CRMC No.266/2018 Page 7 of 7