Delhi High Court - Orders
Poonam Sonipal vs The State (Nct Of Delhi) & Anr on 27 May, 2022
Author: Sudhir Kumar Jain
Bench: Sudhir Kumar Jain
$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 1091/2019
POONAM SONIPAL ..... Petitioner
Through: Mr. Shandeep Vishnu and Mr. Lalit
Kumar, Advocates.
versus
THE STATE (NCT OF DELHI) & ANR ..... Respondents
Through: Ms. Jyoti Babbar, Advocate for
Mr.Rajesh Mahajan, ASC for State
with SI Arun Kumar, P.S. Saket.
Mr. Akash Mohan and Mr. Tarun
Narang, Advocates for R-2.
CORAM:
HON'BLE MR. JUSTICE SUDHIR KUMAR JAIN
ORDER
% 27.05.2022
1. Issue notice. Mr. Rajesh Mahajan, Additional Standing Counsel accepted notice on behalf of the respondent no.1 and Mr. Akash Mohan, Advocate accepted notice on behalf of the respondent no. 2.
2. The present petition is filed under Article 226 of the Constitution of India read with Section 482 of The Code of Criminal Procedure, 1973 (hereinafter referred to as "the Cr.P.C.") for quashing of FIR bearing No. 0077/2017 dated 20.02.2017 under section 420/467/468/471/34 IPC registered at P.S. Saket.
3. The present FIR bearing No. 0077/2017 dated 20.02.2017 was got registered at P.S. Saket on the basis of the complaint made by respondent no. 2 against the petitioner. The petitioner and respondent no. 2 got married on 27.04.2001 at Delhi according to Hindu rites and ceremonies. Out of the Signature Not Verified Digitally Signed By:HARVINDER KAUR W.P.(CRL) 1091/2019 Page 1 of 11 BHATIA Signing Date:01.06.2022 11:26:39 marriage of the petitioner no.1 and respondent no.2, two sons, namely, Govind Sonipal (major) and Dev Sonipal (minor) were born who are at present in case and custody of respondent no. 2. The petitioner and the respondent no. 2 are living separately since 2013 due to the matrimonial differences. The cross FIR bearing No. 0173/2016 dated 06.03.2016 under Sections 498A/509/377/354C/323/34 IPC also got registered at P.S. Lajpt Nagar on the complaint made by the respondent no. 2. The petitioner and respondent no. 2 vide settlement dated 02.01.2018 recorded before Delhi High Court Mediation and Conciliation Centre (SAMADHAN) have amicably settled their disputes (past, present and future). The terms and conditions of the settlement are mentioned in details in settlement dated 02.01.2018.
4. The petitioner stated that the terms and conditions of the settlement have already been executed and the respondent no. 2 has paid balance settled amount of Rs.2 Lakhs to the petitioner vide demand draft bearing No. 014879 dated 17.05.2022 drawn on IDBI Bank, New Friends Colony, Delhi. The petitioner also stated that she has settled out of free will without any force, fear and coercion.
5. The petitioner and respondent no. 2 are also identified by Investigating Officer and their respective counsels. The respondent no. 2 stated that in view of the settlement between the parties, he does not have any objection if the present FIR is allowed to be quashed.
6. The Additional Standing Counsel for the State stated that as the petitioner and the respondent no. 2 have settled their disputes amicably and he does not have any objection if the present FIR is allowed to be quashed, however, he raised his concern for the offences punishable under sections 467/468/47 IPC which are non-compoundable as per section 320 Cr.P.C.
Signature Not Verified Digitally Signed By:HARVINDER KAUR W.P.(CRL) 1091/2019 Page 2 of 11 BHATIA Signing Date:01.06.2022 11:26:397. Issue which needs judicial consideration is that whether in exercise of inherent powers as provided under section 482 Cr.P.C., FIR bearing no 0077/2017 which also pertains for non-compoundable offences punishable under sections 467/468/471 IPC, can be quashed.
8. Section. 320 Cr.P.C. deals with compounding of offences. As per section sub section (1) certain specified offences can be compounded without leave/permission of the court and as per sub section (2) certain specified offences can be compounded with leave/permission of the court. The offences punishable under sections 498A/377 IPC are non- compoundable offences. Section 482 saves the inherent power of the High Court and reads as follows:-
Section. 482. Saving of inherent power of High Court.- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
9. The Supreme Court in various decisions considered issue whether High Court in exercise of its inherent powers under section 482 Cr.P.C. can quash criminal proceedings/ FIR/ complaint and section 320 Cr.P.C. does not limit or affect the powers under section 482 Cr.P.C. The Supreme Court in Dharampal and Ors. V Ramshri (Smt.) and Ors.,1993 Cri.L.J. 1049 observed that the inherent powers Under Section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code. In Arun Shankar Shukla V State of Uttar Pradesh and Ors., AIR 1999 SC 2554 held as under:-
...It is true that Under Section 482 of the Code, the High Court has inherent powers to make such orders as may be necessary to give Signature Not Verified Digitally Signed By:HARVINDER KAUR W.P.(CRL) 1091/2019 Page 3 of 11 BHATIA Signing Date:01.06.2022 11:26:39 effect to any order under the Code or to prevent the abuse of process of any court or otherwise to secure the ends of justice. But the expressions "abuse of the process of law" or "to secure the ends of justice" do not confer unlimited jurisdiction on the High Court and the alleged abuse of the process of law or the ends of justice could only be secured in accordance with law including procedural law and not otherwise. Further, inherent powers are in the nature of extraordinary powers to be used sparingly for achieving the object mentioned in Section 482 of the Code in cases where there is no express provision empowering the High Court to achieve the said object. It is well-neigh settled that inherent power is not to be invoked in respect of any matter covered by specific provisions of the Code or if its exercise would infringe any specific provision of the Code. In the present case, the High Court overlooked the procedural law which empowered the convicted accused to prefer statutory appeal against conviction of the offence. The High Court has intervened at an uncalled for stage and soft-pedalled the course of justice at a very crucial stage of the trial.
10. The Supreme Court continuously observed that the extraordinary power Under Section 482 Code of Criminal Procedure should be exercised sparingly and with great care and caution and can be used to prevent abuse of the process of the court or to secure ends of justice and the exercise of inherent powers entirely depends on facts and circumstances of each case.
11. The Supreme Court in B.S. Joshi V State of Haryana (2003) 4 SCC 675 held 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 Code. The Supreme Court in Manoj Sharma V State & others, (2008) 16 SCC 1 considered issue whether an FIR under sections 420/468/471/34/120-B IPC can be quashed either Under Section 482 Cr.P.C. or under Article 226 of the Signature Not Verified Digitally Signed By:HARVINDER KAUR W.P.(CRL) 1091/2019 Page 4 of 11 BHATIA Signing Date:01.06.2022 11:26:39 Constitution when the accused and the complainant have compromised and settled the matter between themselves. The Supreme Court observed that ultimate exercise of discretion Under Section 482 Code of Criminal Procedure or under Article 226 of the Constitution is with the court which has to exercise such jurisdiction in the facts of each case. It has been explained that the said power is in no way limited by the provisions of Section 320 Code of Criminal Procedure. It was observed as under:-
8....Once the complainant decided not to pursue the matter further, the High Court could have taken a more pragmatic view of the matter. We do not suggest that while exercising its powers under Article 226 of the Constitution the High Court could not have refused to quash the first information report, but what we do say is that the matter could have been considered by the High Court with greater pragmatism in the facts of the case.
9. ...In the facts of this case we are of the view that continuing with the criminal proceedings would be an exercise in futility....
12. The Supreme Court in Sushil Suri v. Central Bureau of Investigation and Anr.,(2011) 5 SCC 708, considered the scope and ambit of the inherent jurisdiction of the High Court and observed as under:-
16. Section 482 Code of Criminal Procedure itself envisages three circumstances under which the inherent jurisdiction may be exercised by the High Court, namely, (i) to give effect to an order under Code of Criminal Procedure; (ii) to prevent an abuse of the process of court; and (iii) to otherwise secure the ends of justice. It is trite that although the power possessed by the High Court under the said provision is very wide but it is not unbridled. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the Court exists.
13. The power of compounding and quashing of criminal proceedings in Signature Not Verified Digitally Signed By:HARVINDER KAUR W.P.(CRL) 1091/2019 Page 5 of 11 BHATIA Signing Date:01.06.2022 11:26:39 exercise of inherent powers are not equal or inter-changeable in law. The Supreme Court in various decisions also considered scope of Section 320 vis-à-vis the inherent power of the High Court under Section 482 of the Code. The Supreme Court in Shiji alias Pappu and others V Radhika and Anr, (2011) 10 SCC 705 considered the exercise of inherent power by the High Court under section 482 in a matter where the offence was not compoundable and observed that simply because an offence is not compoundable under section 320 Code of Criminal Procedure is by itself no reason for the High Court to refuse exercise of its power under section 482 Code of Criminal Procedure. It was further observed that there is a subtle distinction between compounding of offences by the parties before the trial court or in appeal and the exercise of power by the High Court to quash the prosecution Under Section 482 Code of Criminal Procedure. The Supreme Court in Y. Suresh Babu V State of A.P., (2005) 1 SCC 347 allowed the compounding of an offence under section 326 IPC even though such compounding was not permitted by Section 320 of the Code.
14. The Supreme Court after analysing earlier decisions as referred hereinabove and other decision in Gian Singh V State of Punjab and Ors., (2012)10SC C 303 laid down following principles:-
57. 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 Signature Not Verified Digitally Signed By:HARVINDER KAUR W.P.(CRL) 1091/2019 Page 6 of 11 BHATIA Signing Date:01.06.2022 11:26:39 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 favour 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.Signature Not Verified Digitally Signed By:HARVINDER KAUR W.P.(CRL) 1091/2019 Page 7 of 11 BHATIA Signing Date:01.06.2022 11:26:39
15. The Supreme Court in State of Madhya Pradesh V Laxmi Narayan & Ors., 2 (2019) 5 SCC 688 recapitulated principles laid down in Gian Singh case and observed as under:-
(1) That the power conferred under Section 482 of the Code to quash the criminal proceedings for the non- compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves;
(2) Such power is not to be exercised in those prosecutions which involved 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; (3) Similarly, such power is not to be exercised for the offences under the special statutes 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;
(4) xxx xxx xxx (5) While exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offences, which are private in nature and do not have a serious impact on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused;
the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise, etc.
16. The Supreme Court in Ramgopal & another. V State of Madhya Pradesh, Criminal Appeal No. 1489 of 2012 decided 29th September,2021 on observed as under:-
11. True it is that offences which are „noncompoundable‟ cannot Signature Not Verified Digitally Signed By:HARVINDER KAUR W.P.(CRL) 1091/2019 Page 8 of 11 BHATIA Signing Date:01.06.2022 11:26:39 be compounded by a criminal court in purported exercise of its powers under Section 320 Cr.P.C. Any such attempt by the court would amount to alteration, addition and modification of Section 320 Cr.P.C, which is the exclusive domain of Legislature. There is no patent or latent ambiguity in the language of Section 320 Cr.P.C., which may justify its wider interpretation and include such offences in the docket of „compoundable‟ offences which have been consciously kept out as non-compoundable.
Nevertheless, the limited jurisdiction to compound an offence within the framework of Section 320 Cr.P.C. is not an embargo against invoking inherent powers by the High Court vested in it under Section 482 Cr.P.C. The High Court, keeping in view the peculiar facts and circumstances of a case and for justifiable reasons can press Section 482 Cr.P.C. in aid to prevent abuse of the process of any Court and/or to secure the ends of justice.
12. The High Court, therefore, having regard to the nature of the offence and the fact that parties have amicably settled their dispute and the victim has willingly consented to the nullification of criminal proceedings, can quash such proceedings in exercise of its inherent powers under Section 482 Cr.P.C., even if the offences are non- compoundable. The High Court can indubitably evaluate the consequential effects of the offence beyond the body of an individual and thereafter adopt a pragmatic approach, to ensure that the felony, even if goes unpunished, does not tinker with or paralyze the very object of the administration of criminal justice system.
13. It appears to us that criminal proceedings involving non-heinous offences or where the offences are pre-dominantly of a private nature, can be annulled irrespective of the fact that trial has already been concluded or appeal stands dismissed against conviction. Handing out punishment is not the sole form of delivering justice. Societal method of applying laws evenly is always subject to lawful exceptions. It goes without saying, that the cases where compromise is struck post- conviction, the High Court ought to exercise such discretion with rectitude, keeping in view the circumstances surrounding the incident, the fashion in which the compromise has been arrived at, and with due regard to the nature and seriousness of the offence, besides the conduct of Signature Not Verified Digitally Signed By:HARVINDER KAUR W.P.(CRL) 1091/2019 Page 9 of 11 BHATIA Signing Date:01.06.2022 11:26:39 the accused, before and after the incidence. The touchstone for exercising the extra-ordinary power under Section 482 Cr.P.C. would be to secure the ends of justice. There can be no hard and fast line constricting the power of the High Court to do substantial justice. A restrictive construction of inherent powers under Section 482 Cr.P.C. may lead to rigid or specious justice, which in the given facts and circumstances of a case, may rather lead to grave injustice. On the other hand, in cases where heinous offences have been proved against perpetrators, no such benefit ought to be extended, as cautiously observed by this Court in Narinder Singh & Ors. vs. State of Punjab & Ors. 3 (2014) 6 SCC 466 and Laxmi Narayan (Supra).
14. In other words, grave or serious offences or offences which involve moral turpitude or have a harmful effect on the social and moral fabric of the society or involve matters concerning public policy, cannot be construed betwixt two individuals or groups only, for such offences have the potential to impact the society at large. Effacing abominable offences through quashing process would not only send a wrong signal to the community but may also accord an undue benefit to unscrupulous habitual or professional offenders, who can secure a „settlement‟ through duress, threats, social boycotts, bribes or other dubious means. It is well said that "let no guilty man escape, if it can be avoided."
18. In present case the respondent no. 2 lodged FIR bearing No. FIR bearing No. 0077/2017 due to matrimonial disputes. The petitioner and the respondent no. 2 have already settled their disputes. No useful purpose shall be served if judicial proceedings arising out of FIR bearing No. 0077/2017 is allowed to be continued rather it would be detrimental to interests of the petitioner and the respondent no. 2. The chain of litigation between the petitioner and the respondent no. 2 is required to be put to an end. After considering all facts and peculiar circumstances pertaining to the present case, FIR bearing No. 0077/2017 dated 20.02.2017 under section 420/467/468/471/34 IPC registered at P.S. Saket with all the consequential Signature Not Verified Digitally Signed By:HARVINDER KAUR W.P.(CRL) 1091/2019 Page 10 of 11 BHATIA Signing Date:01.06.2022 11:26:39 proceedings including judicial proceedings is ordered to be quashed.
19. The petition alongwith pending applications, if any, stands disposed of.
SUDHIR KUMAR JAIN, J MAY 27, 2022 N Signature Not Verified Digitally Signed By:HARVINDER KAUR W.P.(CRL) 1091/2019 Page 11 of 11 BHATIA Signing Date:01.06.2022 11:26:39