Punjab-Haryana High Court
Raj Kumar And Others vs State Of Haryana And Another on 29 August, 2008
Author: Ranjit Singh
Bench: Ranjit Singh
CRIMINAL MISC. NO. M 21880 OF 2008 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: AUGUST 29, 2008
Raj Kumar and others
.....Petitioners
VERSUS
State of Haryana and another
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr. P. L. Goyal, Advocate,
for the petitioners.
****
RANJIT SINGH, J.
The petitioners seek quashing of FIR registered against them under Sections 498A, 406 and 506 IPC at a stage when one of them is convicted and appeal filed by him is pending before the first Appellate Court. The appeal filed to challenge the acquittal of the remaining petitioners is also pending adjudication before the first Appellate Court. The ground to urge quashing is that petitioner No.1 and respondent No.2 (husband and wife) have patched up their matrimonial difference and are now living together. It is to be seen if the quashing of the FIR can be done in exercise of powers under CRIMINAL MISC. NO. M 21880 OF 2008 :{ 2 }:
Section 482 Cr.P.C., on the basis of compromise when appeals against conviction/acquittal are pending before first Appellate Court.
Petitioner No.1 married respondent No.2, Raj Bala, on 20.5.1997 at Faridabad. Other petitioner Nos.2 and 3 are parents of petitioner No.1 and Petitioner Nos.4 and 5 are his brothers.
Respondent No.2 lodged a complaint against the petitioners on 27.5.1998 and the impugned FIR was registered. The petitioner faced prosecution and vide judgment dated 1.3.2007, petitioner No.1 has been held guilty under Sections 498A, 406 IPC. The petitioner Nos.2 to 5 were acquitted of all the charges. Petitioner No.1 was sentenced to undergo RI for a period of one year and pay a fine of Rs.1,000/- for an offence under Section 498A IPC. He is also sentenced to suffer 6 months RI and a fine of Rs.500/- upon his conviction under Section 406 IPC. The petitioner has accordingly impugned his conviction and sentence while filing Criminal Appeal No.5 of 2007, which is pending before Additional Sessions Judge, Faridabad. State of Haryana has also filed an appeal against the order, acquitting petitioner Nos.2 to 5, which is also pending adjudication before the same Appellate Court. Wise counsel appears to have dawned upon the couple (petitioner No.1 and respondent No.2) and they have resolved their matrimonial differences and disputes and have started living together. Even the divorce petition instituted by petitioner No.1 against respondent No.2 has since been withdrawn. The couple is statedly living with complete harmony. Copy of the compromise is placed on record as Annexure P-5, which would show that even respondent No.2 has desired that this FIR against CRIMINAL MISC. NO. M 21880 OF 2008 :{ 3 }:
the petitioners be quashed and petitioner No.1 be acquitted.
No one would wish the parties to litigate and face conviction, when the married couple has decided to patch up and have started living together. This matrimonial patch up needs to be cemented by some innovative judicial approach. If the Courts are to ignore this subsequent development, then it can lead to failure of the compromise and breaking of home, which has seen reconstruction due to wise approach of the couple and families.
One need not to notice precedents that courts have always made efforts for fighting couples to reconcile and reconstruct broken house and marriages. The parties here would not only need encouragement but support so that their good efforts do not go waste.
It is averred that petitioner No.1 and respondent No.2 had desired to move a joint petition for compounding the offences before the first Appellate Court. However, the Court actuated with mundane attitude and procedural constraints has orally declined this move by observing that offence under Section 498A IPC is not compoundable under the Scheme of Code of Criminal Procedure. There is, however, no order made in this regard by the Court. The petitioners have, thus,traversed the path to this Court by invoking the provisions of Section 482 Cr.P.C. to urge that this Court may exercise its inherent power to help the parties to come out of this difficult situation.
Counsel for the petitioners has referred to some precedents to submit that in such a situation the High Court can exercise power under Section 482 Cr.P.C. to quash the CRIMINAL MISC. NO. M 21880 OF 2008 :{ 4 }:
proceedings/FIR. Hon'ble Supreme Court in the case of Dr.Arvind Barsaul Vs. State of Madhya Pradesh, 2008 (2) RCR (Criminal) 910, has in somewhat similar circumstances quashed FIR in exercise of its powers under Article 142 of the Constitution of India. This is a case where the appellant was convicted under Section 498A on a complaint made by wife, against which he filed an appeal. During the pendency of the appeal, the parties sorted out their differences and filed three separate petitions for recording the compromise in the criminal proceedings. The first Appellate Court rejected the compromise petition stating that the offence under Section 498A IPC is not liable of compromise. This order passed by the first Appellate Court was challenged before the High Court under Section 482 Cr.P.C. The High Court, however, declined to interfere in the matter and the appellant preferred a Special Leave Petition before the Hon'ble Supreme Court. The Hon'ble Supreme Court thought it proper to quash the criminal proceedings pending against the appellants emanating from the FIR lodged under Section 498A IPC. It is observed in this case that in peculiar facts and circumstances of the case and in the interest of justice, continuation of criminal proceedings would be an abuse of process of law.
Indeed, the continuation of the criminal proceedings before first Appellate Court would be an abuse of process of law, considering the peculiar facts emerging in this case. It appears that in the case of Dr.Arvind (supra), the parties had entered into a compromise and perhaps have not started living together as is the situation in the instant case. The observations made by the Hon'ble CRIMINAL MISC. NO. M 21880 OF 2008 :{ 5 }:
Supreme Court, thus, would apply with greater vigor to the facts of this case. The criminal proceedings, if allowed to continue, would be an abuse of process of law and may result in breaking this marriage, which has been reconstructed. What should be the approach? The appeal against the conviction of petitioner No.1 and against acquittal of petitioners No.2 to 5 are pending before the first appellate Court. Would it be legally permissible to exercise inherent powers under Section 482 Cr.P.C. to quash criminal proceedings? It may lead to a some unhealthy precedent being set which would also not sound legally in order. So far, the petitioners have made only an oral prayer before the first appellate Court, which has been orally declined. Generally, before approaching this Court for relief under Section 482 Cr.P.C. an approach to the Court before which the proceedings are pending with a prayer for dismissal of the proceedings should ordinarily constitute a condition precedent for entertaining an application under this Section because the grievance in regard to abuse of process must ordinarily be made before the Court where the abuse is taking place. I am accordingly of the view that the petitioners must, at the first instance, file an application before the first Appellate Court for bringing on record the compromise reached between the parties, emphasizing the fact that husband and wife are now living together. The Appellate Court has ample power to permit additional evidence at the appellate stage in exercise of powers under Section 391 Cr.P.C. and the Court would be well advised to exercise such power to take these facts and compromise on record. The appeal against the acquittal of petitioner Nos.2 to 5 has been CRIMINAL MISC. NO. M 21880 OF 2008 :{ 6 }:
filed by the State. The State would be in a position to either withdraw or not to press this appeal filed against petitioner Nos.2 to 5, pleading the compromise between the parties to be on the basis of such an approach.
Let the petitioners make a move before the first Appellate Court to bring on record the compromise and the factual position as noticed above by way of additional evidence. The Appellate Court ofcourse would be well advised to take the same into consideration and pass any appropriate order in accordance with law. In case of any adverse order against the petitioners, they would be at liberty to challenge the same before this Court by filing an appropriate petition. Once this evidence/material comes on record, the first appellate Court may take the same into consideration to grant any reliefs as considered appropriate. The first Appellate Court would also be in a position to decide, if the petitioner No.1 need to be sentenced in this case, having regard to these peculiar facts, once these are brought on record. The provisions regarding release on probation are also available for consideration. Ofcourse, the petitioners have legal right to approach this Court in case any adverse order is still made against them and the appellate Court can adequately protect them till they approach this Court.
With the above observations, the petition is disposed of.
August 29,2008 ( RANJIT SINGH ) khurmi JUDGE