Gauhati High Court
Dipan Paul vs The State Of Assam And Anr on 17 February, 2020
Author: Manish Choudhury
Bench: Manish Choudhury
Page No. 1/9
GAHC010107372019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet. 883/2019
1:DIPAN PAUL
S/O- LATE MANIK PAUL, R/O- SHILLONG UPPER MOPREAM JHALUPARA,
P.S- LUMDENGIRI, SHILLONG, MEGHALAYA
VERSUS
1:THE STATE OF ASSAM AND ANR
REP. BY THE PP, ASSAM
2:LIPIKA SARKAR (PAUL)
D/O- SRI BADAL SARKAR
R/O- ARYA NAGAR
SARABBHATI GIRLS HOSTEL ROAD
GUWAHATI- 781016
DIST- KAMRUP (M)
ASSA
Advocate for the Petitioner : MR. M K SAH
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 17-02-2020 Heard Mr. M. K. Sah, learned counsel for the petitioner and Mr. B. B. Gogoi, learned Additional Public Prosecutor for respondent no. 1.
2. This petition under Section 482, Code of Criminal Procedure, 1973 (the Cr.P.C., for short) has been preferred seeking quashing of the charge sheet being Charge Sheet No. Page No. 2/9 116/2013 dated 25.12.2013, submitted in connection with All Women Police Station Case No. 102/2013, and the proceeding of G.R. Case No. 6093/2013, arising therefrom and presently pending before the Court of Judicial Magistrate, 1st Class, Kamrup (Metro) at Guwahati.
3. The facts leading to the filing of this petition may be exposited as follows :the respondent no. 2 had filed a complaint under Section 156(3), Cr.P.C. before the Chief Judicial Magistrate, Kamrup (M) at Guwahati on 15.03.2013 with a prayer to forward the same to the Officer In-Charge, All Women Police Station with a direction to register a case and to cause investigation in respect of the allegations made therein. In the said complaint, the respondent no. 2 has implicated the petitioner who was her then husband, as the accused no. 1. The mother-in-law, the eldest brother-in-law and the sister-in-law had been arrayed as accused no. 2, accused no. 3 and accused no. 4 respectively. In the said complaint, it was, inter-alia, alleged that the marriage between the petitioner and the respondent no. 2 was solemnized on 08.08.2012. After the marriage, the petitioner had taken the respondent no. 2 to Shillong and the respondent no. 2 started residing at her matrimonial home at Shillong. Since after 2 (two) days of the marriage, the then husband i.e. the petitioner and her in-laws started treating the respondent with cruelty and they used to insult, torture and harass her. Various other allegations were made in the complaint which need not be adverted to herein. The respondent no. 2 had asserted that she had been driven out of the matrimonial home on 10.05.2013 by the afore-mentioned accused persons. The said complaint was forwarded to the Officer In-Charge, All Women Police Station with a direction to investigate and to send a report. On receipt of the said complaint with the above direction, the Officer In-Charge, All Women Police Station treating the said complaint as the First Information Report (FIR) (Annexure-1), registered a case being All Women Police Station Case No. 102/2013 under Sections 498A/323/506/34, Indian Penal Code (I.P.C.) and thereafter, the matter had been investigated into. Correspondingly, G.R. Case No. 6093/2013 has been registered.
4. After completion of the investigation, the Investigating Officer (I.O.) of the case had submitted a charge sheet being Charge Sheet No. 116/2013 (Annexure-2) on 25.12.2013 before the Court of Chief Judicial Magistrate, Kamrup(M), Guwahati finding a prima facie case Page No. 3/9 established against the petitioner. The I.O. finding no evidence against the other family members of the petitioner, did not file the charge sheet against them.
5. The respondent no. 2 had also instituted a proceeding before the Family Court, Kamrup(M), Guwahati seeking dissolution of the marriage by a decree of divorce and the application made in this regard had been registered as F.C.(Civil) No. 27/2014. An application under Section 125, Cr.P.C. being F.C.(Crl.) No. 19/2014, was also filed by the respondent no. 2 before the Family Court, Kamrup(M), Guwahati seeking maintenance from the petitioner. That apart, the respondent no. 2 had instituted another proceeding by way of an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (the D.V. Act, for short) before the Chief Judicial Magistrate, Kamrup (M), Guwahati. The said application had been registered as D.V. Misc Case No. 226 M/2013. On the other hand, the petitioner had preferred an application seeking restitution of conjugal rights before the Court of District Judge, Shillong which had been registered as MAT 2(H)/2014 wherein the respondent no. 2 appeared through her counsel and prayed for time to file written statement.
6. During the pendency of the aforesaid proceedings, the petitioner and the respondent no. 2 realised that there were irreconcilable differences between them and they would be unable to continue their matrimonial relationship as the husband and the wife together. Having realised that their marriage had been irretrievably broken down they entered into a Memorandum of Understanding on 25.03.2014 at Guwahati before the Notary, Kamrup(M), Guwahati who registered the same vide Serial No. 128 dated 25.03.2014. Through the said Memorandum of Understanding (Annexure-3), the petitioner and respondent no. 2 had decided to end all their marital disputes.
7. For ready reference, the relevant terms and condition of the said Memorandum of Understanding dated 25.03.2014 are extracted hereunder :-
"WHEREAS, both the parties have discussed, decided and agreed to avoid further unwanted disaster circumstances in their lives and for the sack of peaceful life, both parties are willing to dissolve their marriage by way of Mutual Divorce on the following written terms and conditions. NOW BOTH THE PARTIES IS AS FOLLOWS :
1. That the first Party/Husband has come to an agreement with the second Party/Wife to settle the marital disputes outside of the court and promise to comply all clauses set by them.
2. That the first Party/Husband is voluntary willing to pay a to his wife/second party a sum of Rs. 400000/-Page No. 4/9
(Rupees four lakhs) only as one time permanent alimony for her maintenance. Out of which Rs. 200000/- (Rupees two lakhs) will be paid in cash and remaining Rs.200000/- (Rupees two lakhs) by issuing a post dated account payee cheque by the 1st party/husband on 26/03/2014 which is agreed by the second party/wife.
3. That the Memorandum of Understanding will be effective from the date of its execution and it will continue grant divorce decree on mutual by the Hon'ble Family Court and realization of balance permanent alimony amount.
4. That the Second Party/wife shall not claim further maintenance except the settled amount for maintenance.
The second party/wife shall not also claim any movable and immovable property from the First party/husband.
5. That both parties are agreed to withdraw their cases pending against each other from the court of law and they further agreed not to file any case upon each other after grant of divorce and clearance of permanent alimony amount.
6. That the both parties agreed not to disturb each other either over telephone, in her home or any public place against the will of either Party.
7. That the both parties will be at liberty to re-marry after the dissolution of present marriage by way of mutual Divorce by court of law.
8. That the First Party/Husband will never involve himself in any cruelty, outraged of modesty, forceful physical/sexual relation with the second party/wife during pendency of Mutual Divorce Petitioner inn the court of law and after getting decree of Divorce by way of Mutual Divorce.
9. That both the parties are agreed to annexed copy of this memorandum of understanding with the mutual Divorce petition and having no objections if the Hon'ble court pass order/judgment/decree of Mutual Divorce considering the terms and conditions of the Memorandum of Understanding.
10. That in case of failure to pay permanent alimony amount to the second Party/Wife, the second party/wife would have every right to file criminal/civil/Matrimonial/execution cases against the First Party/Husband.
11. That is case of non-compliance of terms and conditions of this Memorandum of Understanding by parties then the aggrieved party may approach the court of law for enforcement of this Memorandum of Understanding.
12. Both parties have understood each and every terms and conditions and thereafter in good health, mind and voluntary agreed to put their signature on the Memorandum of Understanding."
8. On the basis of said Memorandum of Understanding, the petitioner and respondent no. 2 approached the Family Court, Kamrup(M), Guwahati seeking divorce on mutual consent by filing a joint petition. Accepting the joint prayer for mutual divorce, the Family Court, Kamrup(M), Guwahati had dissolved the marriage between the petitioner and the respondent no. 2 on mutual constant by an order dated 03.03.2016 (Annexure-4). Subsequently, the respondent no. 2 had withdrawn the 3 (three) cases instituted by her : (i) F.C.(Civil) No. 27/2014; (ii) F.C.(Crl.) No. 19/2014; and (iii) D.V. Misc Case No. 226 M/2013. Similarly, the petitioner had withdrawn the case instituted by him i.e. MAT 2(H)/2014 in the Court of District Judge, Shillong. It is in the aforesaid background, the petitioner has approached this Court seeking quashing of the charge sheet being Charge Sheet No. 116/2013 dated 25.12.2013, arising out of All Women Police Station Case No. 102/2013, and the proceeding of G.R. Case No. 6093/2013, arising therefrom and presently pending before the Court of Page No. 5/9 Judicial Magistrate, 1st Class, Kamrup (Metro) at Guwahati, seeking invocation of the inherent powers of this Court under Section 482, Cr.P.C.
9. From the above, it has emerged that the parties have decided to bury the differences and disputes between them which had arisen between them due to their matrimonial relationship including the one in connection with All Women Police Station Case No. 102/2013. Notice has been found to be served on the respondent no. 2. Though the respondent no. 2 has not appeared herself, the father of the respondent no. 2, Sri Badal Sarkar has appeared in person in consultation with Mr. Gogoi, learned Additional Public Prosecutor. Sri Badal Sarkar has also filed an affidavit endorsing the fact that the parties have amicably settled all the issues. In the affidavit, he has further averred that after the grant of divorce on mutual consent by order dated 03.03.2016, the respondent no. 2 has remarried on 05.05.2019 with one Sri Ashok Kumar at Guwahati and she is now settled happily in Punjab. He has further conveyed the consent of the respondent no. 2 through the affidavit to the effect that if the Charge Sheet No. 116/2013 and the proceeding of G.R. Case No. 6093/2013, arising therefrom and presently pending before the Court of Judicial Magistrate, 1 st Class, Kamrup(M), Guwahati, are quashed and set aside, he and the respondent no. 2 have no objection. Mr. Badal Sarkar in proof of his identity and the respondent no. 2 have submitted his PAN Card (ARRPS3792B) and the Electoral Photo Identity Card (GZH0934372) of the respondent no. 2.
10. The scope of the inherent power of this Court available under Section 482, Cr.P.C. has been discussed elaborately in a number of decisions of the Supreme Court as well as of this Court. In Gian Singh vs. State of Punjab, reported in (2012) 10 SCC 303, the Supreme Court has observed and 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 FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed.Page No. 6/9
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 a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the 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 a 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, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the 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 the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."
11. After considering the decision in Gian Singh (supra), the Supreme Court in the case of Narinder Singh vs. State of Punjab, reported in (2014) 6 SCC 466, has observed in the similar manner and the relevant parts of the said judgment are extracted hereunder :-
"29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:
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.
29.2. When 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 to 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 the 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 hand, those criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or Page No. 7/9 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 are 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 latter 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 to 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."
12. Recently, in the case ofState of Madhya Pradesh vs. Laxmi Narayan, reported in (2019) 5 SCC 688, the Supreme Court has further observed as under :-
"15. Considering the law on the point and the other decisions of this Court on the point, referred to hereinabove, it is observed and held as under:
15.1.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;
15.2.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;Page No. 8/9
15.3. Similarly, such power is not to be exercised for the offences under the special statutes like 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; 15.4. Offences under Section 307 IPC and the Arms Act etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone, and therefore, the criminal proceedings for the offence under Section 307 IPC and/or the Arms Act etc. which have a serious impact on the society cannot be quashed in exercise of powers under Section 482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves. 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 framing 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. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paragraphs 29.6 and 29.7 of the decision of this Court in the case of Narinder Singh (supra) should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove;
15.5. 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. Insofar as the present case is concerned, the High Court has quashed the criminal proceedings for the offences under Sections 307 and 34 IPC mechanically and even when the investigation was under progress. Somehow, the accused managed to enter into a compromise with the complainant and sought quashing of the FIR on the basis of a settlement. The allegations are serious in nature. He used the fire arm also in commission of the offence. Therefore, the gravity of the offence and the conduct of the accused is not at all considered by the High Court and solely on the basis of a settlement between the accused and the complainant, the High Court has mechanically quashed the FIR, in exercise of power under Section 482 of the Code, which is not sustainable in the eyes of law. The High Court has also failed to note the antecedents of the accused."
13. In view of the aforesaid fact situation obtaining in the present case, as alluded in the proceeding paragraphs, and in the light of the guidelines that can be culled out from decisions of the Supreme Court as regards the power under 482, Cr.P.C., this Court is of the considered view that this is a case where the inherent power of the Court available under Section 482, can be exercised for the ends of justice. The parties herein have settled their disputes amicably by entering into the Memorandum of Understanding dated 25.03.2014. The parties have decided to proceed with their lives separately from each other putting their grievances against each other into the backburner. Instead of allowing the proceeding of G.R. Case No. 6093/2013, arising out of Charge Sheet No. 116/2013 and All Women Police Station Page No. 9/9 Case No. 102/2013, and presently pending before the Court of Judicial Magistrate, 1 st Class, Kamrup (Metro) at Guwahati, to continue any further where the inevitable conclusion in the backdrop of above fact situation will be the acquittal of the petitioner at the end of the trial, the interest of justice will be subserved if the said Charge Sheet No. 116/2013, arising out of All Women Station Case No. 102/2013, and the proceeding of G.R. Case No. 6093/2013 pending against the petitioner are quashed and set aside in order to enable the petitioner and the respondent no. 2 to give a quietus to all the disputes that arose between them when they were in a matrimonial relationship. Accordingly, the Charge Sheet No. 116/2013 dated 25.12.2013, arising out of All Women Police Station Case No. 102/2013, and the proceeding of G.R. Case No. 6093/2013, arising therefrom and presently pending in the Court of Judicial Magistrate, 1st Class, Kamrup (Metro) at Guwahati, are quashed and set aside. With the observations made and directions given above, this petition stands disposed of. No Cost.
JUDGE Comparing Assistant