Allahabad High Court
Mahboob And 3 Others vs State Of U.P. And Another on 29 January, 2021
Equivalent citations: AIRONLINE 2021 ALL 489
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on: 25.01.2021 Delivered on: 29.01.2021 Court No. - 68 Case :- CRIMINAL REVISION No. - 2156 of 2016 Revisionist :- Mahboob And 3 Others Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Chandra Prakash Singh Counsel for Opposite Party :- G.A.,Gaurav Kakkar Hon'ble Samit Gopal,J.
1. Heard Chandra Prakash Singh, learned counsel for the revisionists, Sri Ashutosh Tiwari, learned Advocate holding brief of Sri Gaurav Kakkar, learned counsel for the Opposite Party No. 2 and Sri Sanjay Kumar Singh, learned A.G.A. for the State and perused the record.
2. The trial court record was summoned which has been received on 11.01.2018, as per the office report. The same has also been perused.
3. The present revision has been preferred against the judgment and order dated 06.08.2015 passed by the Judicial Magistrate, Gautam Budh Nagar in Criminal Case No. 68 of 2013 (State of U.P. Vs. Mahboob and others) under Sections 498-A, 323, 504, 506 I.P.C. and Section 3/4 D.P. Act, Police Station Rabpura District Gautam Budh Nagar (concerning Case Crime No. 101 of 2012, under Sections 498-A, 323, 504, 506 I.P.C. and Section 3/4 D.P. Act, Police Station Rabpura, District Gautam Budh Nagar), whereby, the revisionists have been convicted and sentenced under Section 498-A I.P.C. to 2 years simple imprisonment, fine of Rs. 1000/- and in default of payment of fine to one month simple imprisonment, under Section 323 I.P.C. to 06 months simple imprisonment, fine of Rs. 500/- and in default of payment of fine to one week simple imprisonment, under Section 3/4 Dowry Prohibition Act to 1 year simple imprisonment, fine of Rs. 1000/- and in default of payment of fine to one month simple imprisonment. The sentences have been ordered to run concurrently. The accused persons have been acquitted of the charges levelled against them under Sections 504, 506 I.P.C. vide the same judgment also against the judgement and order dated 24.05.2016 passed by Additional Sessions Judge / F.T.C., Gautam Budh Nagar in Criminal Appeal No. 62 of 2015 (Mahboob and Others Vs. State of U.P.) by which the accused persons have been convicted and sentenced under Section 498-A I.P.C. to 2 years simple imprisonment, fine of Rs. 1000/- and in default of payment of fine to one month simple imprisonment, under Section 323 I.P.C. to 06 months simple imprisonment, fine of Rs. 500/- and in default of payment of fine to one week simple imprisonment, under Section 4 Dowry Prohibition Act to 1 year simple imprisonment, fine of Rs. 1000/- and in default of payment of fine to one month simple imprisonment.
4. The issue in the present matter raised is on a very small compass. The Opposite Party No.2 / Kallu Khan is the first informant of the present matter. As per the first information report lodged by the opposite party No.2, his daughters namely Meena and Gulshan were married on 07.05.2006 to Mahboob and Shahid respectively, who are real brothers and in the marriage he had spent money and given gifts and dowry as per his status. Out of the wedlock of Mahboob and Smt. Meena, a girl child named Heena was born and from the wedlock of Shahid and Smt. Gulshan, a boy named Kauki was born. They were living peacefully. Later on, when it came to be known that the land of the first informant is being acquired, the in-laws of his daughters started troubling them and started beating them and used to demand of Rs. 5 lakhs each and a plot each for both the husbands and stated that the same be given or else they will not be permitted to live in the house. There used to be regular beating of the daughters of the first informant who continued to face the same due to social fears and used to console their in-laws but they did not mend their ways. On 17.11.2010, both the daughters of the first informant were assaulted and were left at a crossing at Rabpura from where they with great difficulty reached their maternal house and while crying and narrated the entire incident to her father on which many people of the society were called and with the help of them tried to settle the dispute in their matrimonial house but their in-laws did not accept the same and continued to press their demand and said that till the time money and plot is not given they will not keep his daughters. It is further stated that Mahboob the husband of Smt. Meena married some other lady for which his family members also agreed and the family members of the first informant were even threatened of dire consequences. The first information report was thus registered.
5. In the trial Kallu Khan the first informant and the father of the two daughters was examined as P.W.-1, Smt. Gulshan was examined as P.W.-2, Smt. Meena was examined as P.W.-3 and Sub Inspector Kaluram Chaudhary was examined as P.W.-4 who was the Investigating Officer of the matter. The accused persons in their defense had come up with a denial.
6. After conviction by the trial court, the appeal filed by the accused persons was also dismissed by the Appellate Court but from perusal of the judgement and order dated 24.05.2016 passed by the Appellate Court, it is apparent that the accused persons have not been convicted under Section 4 of the Dowry Prohibition Act though the Appellate Court in its judgement and order dated 24.05.2016 has stated that the appeal is dismissed and the judgement and order of the court below is affirmed but it appears that the conviction and sentence under Section 4 of the Dowry Prohibition Act has been maintained but there is no reference of the conviction and sentence under Section 3 of the Dowry Prohibition Act.
7. The present revision has been admitted vide order dated 02.08.2016 passed by this Court, though on the question of sentence only.
8. During the pendency of the present revision, Smt. Gulshan filed an affidavit dated 01.08.2017 before the competent officer mentioning therein that she has entered into compromise with her husband and in-laws and she does not want anyone to be convicted. The said affidavit is filed as Annexure- 1 at page 8 of the supplementary affidavit dated 14.8.2017. A compromise was reduced to writing which has been entered into between the parties in which Shahid is the first party and Smt. Gulshan is the second party and the same was filed before the Principal Judge, Family Court, Gautam Budh Nagar in Application No. 215 of 2016. The certified copy of the same is annexed at page 16 of the said supplementary affidavit. The concerned court verified the said compromise and passed an order of verification of the same on 01.08.2017. The parties therein were identified by their respective counsels.
9. Even, Smt. Meena filed an affidavit dated 01.08.2017 before the competent officer mentioning therein that she has entered into compromise with her husband and in-laws and she does not want anyone to be convicted. The said affidavit is filed as Annexure- 1 at page 9 of the supplementary affidavit dated 14.08.2017. A compromise was reduced to writing which has been entered into between the parties in which Mahboob is the first party and Smt. Meena is the second party and the same was filed before the Principal Judge, Family Court, Gautam Budh Nagar in Application No. 215 of 2016. The certified copy of the same is annexed at page 11 of the said supplementary affidavit. The concerned court verified the said compromise and passed an order of verification of the same on 01.08.2017. The parties therein were identified by their respective counsels.
10. Since two cases under Section 125 Cr.P.C. were filed by the two ladies and the court below had passed an order directing their husbands to pay maintenance and subsequently proceedings under Section 128 Cr.P.C. were filed which were pending before the court below, the said compromise was filed in the said proceedings.
11. A joint affidavit dated 03.02.2018 sworn by Noor Mohammad the revisionist No. 3 and Kallu Khan, the opposite party No. 2 has also been filed in the present revision annexing the said two affidavits. The compromise as filed in the court of the Principal Judge, Family Court, Gautam Budh Nagar and the orders of verification of the said compromise as passed by the said court has also been filed in the said affidavit.
12. In paragraph 2 of both the compromises, it has been specifically mentioned that Case Crime No. 101 of 2012, under Sections 498-A, 323, 504, 506 I.P.C. and 3/4 Dowry Prohibition Act, Police Station Rabpura District Gautam Budh Nagar which was lodged resulted into an order of conviction which has been passed and the matter is pending before this Court and the parties have settled the said case also and will assist the accused persons in getting the said case decided. By means of the said compromise, both the ladies have decided for a one time alimony and have decided to live separately with their husbands.
13. This Court under its revisional jurisdiction has been knocked to set-aside the conviction of the revisionists as the parties have entered into a settlement. The dispute between the parties was a matrimonial dispute.
14. The Apex Court in the case of Gian Singh Vs. State of Punjab: (2012) 10 SCC 303 in para 58 has held as under:-
"58. Where High Court quashes a criminal proceeding having regard to the fact that dispute between the offender and victim has been settled although offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrong doing that seriously endangers and threatens well-being of society and it is not safe to leave the crime- doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without permission of the Court. In respect of serious offences like murder, rape, dacoity, etc; or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between offender and victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to victim and the offender and victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or F.I.R if it is satisfied that on the face of such settlement, there is hardly any likelihood of offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard-and-fast category can be prescribed."
15. Further in para 61 of the judgment in the case of Gian Singh (supra), the Apex Court has further held that where the parties have entered into compromise particularly in the matters predominantly of civil nature, matrimonial relating to dowry and family dispute etc. which are of private and personal nature, the High Court may quash the proceedings in such matters. Para 61 of the said judgment is extracted herein-below:
"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 predominatingly 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."
16. Further, in the case of Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and others Vs. State of Gujarat and another: (2017) 9 SCC 641, the Apex Court has laid down the category of cases in which the offences can be compounded, the said guidelines are extracted herein-below:
"16. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions:
(16.1) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court.
(16.2) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.
(16.3) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power.
(16.4) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court.
(16.5) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated.
(16.6) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences.
(16.7) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned.
(16.8) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute.
(16.9) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and (16.10) There is yet an exception to the principle set out in propositions 16.8 and 16.9. above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance."
17. In the case of Bitan Sengupta and another Vs. State of West Bengal and another: (2018) 18 SCC 366, the Apex Court has held that since the parties have settled the matter and they have decided to keep harmony between them to enable them to live with peace and love and have no grievance whatsoever and want the accused persons to get acquitted from the case and have undertaken not to indulge in any other litigation against each other and withdraw all the complaints pending between them before the court as such going by the spirit of the law laid down in the case of B.S. Joshi Vs. State of Haryana: (2003) 4 SCC 675, the Apex Court held that the High Court should have accepted the settlement and compounded the offence. Paragraph 6 and 7 of the said judgement are quoted herein below:-
"6. As per the appellants, the parties have settled the matter, as they have decided to keep harmony between them to enable them to live with peace and love. The compromise records that respondent no.2 have no grievances whatsoever against the appellants and want both the appellants to get acquitted from the cases. Further, both the parties have undertaken not to indulge in any litigation against each other and withdraw all the complaints pending between them before the court.
7. In the aforesaid circumstances and going by the spirit of the law laid down by this Court in the case of B.S. Joshi & Ors. V. State of Haryana , we are of the opinion that the High Court should have accepted the settlement and compounded the offences. It is, more so, when the settlement between the parties, who were husband and wife, was even acted upon as the parties took mutual divorce on that basis."
18. In the present case, the situation as emerges is what was in the case of Bitan Sengupta (supra) wherein the parties had settled their dispute and had entered into a settlement, whereby, it was expressly decided that the accused persons be acquitted from the case. The said compromise has been duly verified in the proceedings before the Family Court.
19. This Court while exercising powers under Section 397 Cr.P.C. is also vested with powers under Section 482 of the Code of Criminal Procedure, 1973. The Court can also exercise its powers ex-debito justitiae to reach to a judgment to secure the ends of justice between the parties.
20. A Bench of Seven Judges of the Apex Court in the case of A.R. Antulay Vs. R.S. Nayak: (1988) 2 SCC 602 have pointed out that no man is above the law, but at the same time no man can be denied his rights under the constitutions and the laws, and no man should suffer a wrong by technical and procedure irregularities. It was observed referring to the judgment of Montreal Street Railway Company Vs. Normadin: 1917 AC 170 as follows:
"All rules of court are nothing but provisions intended to secure proper administration of justice. It is, therefore, essential that they should be made to serve and be subordinate to that purpose".
It is further observed in the said judgment referring to the judgment of State of Gujarat Vs. Ram Prakash P.Puri: (1969) 3 SCC 156 as follows:-
"Procedure has been described to be a handmaid and not a mistress of law, intended to subserve and facilitate the cause of justice and not to govern or obstruct it. Like all rules of procedure, this rule demand a construction which would promote this cause."
21. This Court thus by exercising its powers sets aside the judgment and order of conviction dated 06.08.2015 passed by the Judicial Magistrate, Gautam Budh Nagar in Criminal Case No. 68 of 2013 (State of U.P. Vs. Mahboob and others) under Sections 498-A, 323, 504, 506 I.P.C. and Section 3/4 D.P. Act, Police Station Rabpura District Gautam Budh Nagar (concerning Case Crime No. 101 of 2012, under Sections 498-A, 323, 504, 506 I.P.C. and Section 3/4 D.P. Act, Police Station Rabpura, District Gautam Budh Nagar and the judgement and order dated 24.05.2016 passed by the Additional Sessions Judge / F.T.C., Gautam Budh Nagar in Criminal Appeal No. 62 of 2015 (State Vs. Mahboob and Others). The revisionists are acquitted of the charges levelled against them.
22. The revision is thus allowed.
23. This Court vide its order dated 05.01.2021 had cancelled the bail of the revisionists granted to them vide order dated 02.08.2016 passed by this Court. In compliance of the order dated 05.01.2021, the revisionist No.1 / Mahboob has been arrested on 16.01.2021.
24. An application for recall of the order dated 05.01.2021 being Criminal Misc. Recall Application No. 9 of 2021 has been filed in which vide order dated 25.01.2021, the operation of the order dated 05.01.2021 passed by this Court has been directed to be kept in abeyance in so far as it relates to the revisionist No.2 / Shahid, revisionist No.3 / Noor Mohammad and revisionist No.4 / Rahishan only.
25. The revisionist No.1 / Mahboob is in jail in compliance of the order dated 05.01.2021. The order in so far it relates to revisionist No. No.2 / Shahid, revisionist No.3 / Noor Mohammad and revisionist No.4 / Rahishan are concerned has been stayed to be in operation vide order dated 25.01.2021.
26. Since the present revision has been allowed and the revisionists have been acquitted of the charges levelled against them, the revisionist No.1 / Mahboob is directed to be released from jail forthwith unless wanted in any other case.
27. In so far as the revisionist No. No.2 / Shahid, revisionist No.3 / Noor Mohammad and revisionist No.4 / Rahishan are concerned, as they have also been acquitted of the charges levelled against them, the order dated 05.01.2021 issuing non-bailable warrants is recalled in so far as they are concerned.
28. Office is directed to return the trial court records to the trial court forthwith.
29. A copy of this judgment be also certified to the concerned District and Sessions Judge for its compliance and necessary action.
30. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
31. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
32. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date : 29.01.2021 AS Rathore (Samit Gopal,J.) Court No. - 68 Case :- CRIMINAL REVISION No. - 2156 of 2016 Revisionist :- Mahboob And 3 Others Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Chandra Prakash Singh Counsel for Opposite Party :- G.A.,Gaurav Kakkar Hon'ble Samit Gopal,J.
In Ref: Criminal Misc. Recall Application No. 9 of 2021 Recall Application is allowed.
For order, see order of date 29.01.2021 passed in separate sheet.
Order Date : 29.01.2021 AS Rathore (Samit Gopal,J.)