Karnataka High Court
Manjunatha T Nayak vs Smt. Rajeshwari on 7 September, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF SEPTEMBER, 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
CRIMINAL PETITION NO.5855/2017
BETWEEN:
1. MANJUNATHA T NAYAK
S/O. THAYAPPA,
AGED ABOUT 33 YEARS,
2. VARALAKSHMI NAYAKA
W/O. THAYAPPA,
AGED ABOUT 55 YEARS,
3. RANGANATHA NAYAK
S/O. THAYAPPA,
AGED ABOUT 31 YEARS,
ALL ARE R/AT NO.35,
8TH MAIN ROAD, GOPI SCHOOL ROAD,
MEENAKSHINAGAR, KAMAKSHIPALYA,
BANGALORE - 560 079
...PETITIONERS
(BY SRI. MUNIBYREGOWDA S, ADVOCATE)
AND:
1. SMT. RAJESHWARI
W/O. MANJUNATHA T NAYAK
AGED ABOUT 30 YEARS,
R/AT NO.50, BRUNDAVANA,
SHETTAR COLONY, BENGERI,
HUBBALLI - 580 023
2. STATE BY KAMAKSHIPALYA P.S.
BANGALORE
2
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA
BANGALORE - 560 001
... RESPONDENTS
(BY SRI. S. RACHAIAH, HCGP FOR R-1;
SRI. HARSHA MUTALIK, ADV. FOR R-2)
THIS CRIMINAL PETITION IS FILED U/S 482 CR.P.C.
PRAYING TO SET ASIDE THE IMPUGNED ORDER OF THE
JUDGMENT DATED 06.01.2017 PASSED BY THE V ACMM,
BANGALORE IN C.C.NO.16564/2014 AND ACQUIT THE
ACCUSED.
THIS CRIMINAL PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Learned counsel appearing for petitioners has filed an application under Section 320(2) of Cr.P.C. seeking leave of the Court to accord permission to compound the offences punishable under Sections 498A, 323, 504, 506 and 34 of IPC and an application under Section 320(8) of Cr.P.C. is also filed for recording the compromise entered into between parties as per agreement drawn under under Section 89 read with Rules 24 and 25 of The Karnataka Civil Procedure (Mediation) Rules, 2005 in M.C.No.1060/2017. 3
2. Petitioners herein came to be tried for the above said offences and by judgment dated 06.01.2017 passed by V Addl. Chief Metropolitan Magistrate, Bengaluru in C.C.No.16564/2014 they came to be acquitted of the offences punishable under Sections 323 and Section 4 of Dowry Prohibition Act, 1961 and convicted for the offences punishable under Sections 498-A and 506 r/w Section 3 of Dowry Prohibition Act, 1961 and they have been sentenced to undergo simple imprisonment for two years and ordered to pay fine of ` 5,000/- each with default sentence of three (3) months simple imprisonment. Being aggrieved by the said judgment, petitioners have filed an appeal in Crl.A.No.73/2017, which is pending before Prl. City Civil and Sessions Judge, Bengaluru (CCH-46) and sentence has been suspended till the disposal of the appeal. Petitioners have sought for quashing of judgment dated 06.01.2017 passed by V Addl. Chief Metropolitan Magistrate, Bengaluru, in C.C.No.16564/2014 and consequently, permit the 4 parties to compound the offences as already noticed hereinabove.
3. Learned counsel appearing for the petitioners has filed the certified copy of the order sheet of M.C.No.1060/2017, which petition had been filed by the first petitioner and first respondent herein under Section 13B of the Hindu Marriage Act, 1955, seeking for dissolution of the marriage solemnised on 06.12.2013. Said petition came to be referred to mediation and in the mediation held, an agreement was entered into between them on 04.09.2017 whereunder both parties agreed that their marriage had irretrievably broken down and without making any claim against each other, they agreed to dissolve the marriage which had been solemnised on 06.12.2013. Accepting the said memorandum of settlement, V Addl. Principal Judge, Family Court, Bangalore by order dated 04.09.2012 has dissolved the marriage by granting a decree of divorce.
4. Having perused the said settlement and order passed by the jurisdictional Family Court and also 5 the records of this case, it would disclose that based on the complaint lodged by first respondent herein on 21.04.2014 before second respondent alleging she had been harassed with a demand for dowry and said complaint came to be registered in Cr.No.210/2014 for the offences punishable under Sections 498A, 323, 504, 506 r/w Section 34 of IPC and Sections 3 and 4 of Dowry Prohibition Act, 1961. On completion of investigation, charge sheet came to be filed in C.C.No.16564/2014 for the offences punishable under Sections 498A, 506 and Sections 3 and of Dowry Prohibition Act, 1961 and after trial, petitioners came to be convicted for the said offences on 06.01.2017, which judgment is now pending in Crl.A.No.73/2017 on the file of Addl. City Civil and Sessions Judge (CCH-46) and by order dated 18.01.2017 appellate Court has suspended the sentence imposed on the petitioners.
5. In the meanwhile, as noticed hereinabove, parties namely first petitioner and first respondent herein filed a petition for divorce by mutual consent 6 under Section 13B of the Hindu Marriage Act, 1955 in M.C.No.1060/2017 and matter being referred to mediation, an agreement came to be entered into between parties. When the above said appeal against conviction is pending, first petitioner and first respondent have entered into settlement in M.C.No.1060/2017. Parties have agreed thereunder to get the offences compounded by leave of Court and as such, they have obtained decree of divorce by consent.
6. Proviso to Section 320(6) of Cr.P.C. enables the Court to compound the offences where accused has been convicted for the offences punishable and undisputedly the judgment of conviction passed in C.C.No.16564/2014 against petitioners is now pending before the Appellate Court. Section 320(5) and 320(6) reads as under:
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"320 Compounding of offence.--
(1) xxxx (2) xxxx (3) xxxx (4) xxxx (5) When the accused has been committed for trial or when he has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court to which he is committed, or, as the case may be, before which the appeal is to be heard.
(6) A High Court or Court of Session acting in the exercise of its powers of revision under section 401 may allow any person to compound any offence which such person is competent to compound under this section."
6. On a bare reading of above said provisions it is clear that if offences are compoundable in nature with or without permission of the Court, then irrespective of judgment of conviction recorded and sentence passed by the trial Court, if any appeal is pending, the appellate Court or High Court while exercising the power under Section 401 of Cr.P.C. can permit the parties to 8 compound the offences. In this particular case, the offences punishable under Section 498A of IPC and Section 3 of Dowry Prohibition Act, 1961, are non- compoundable in nature. Thus, strictly speaking Section 320(1) and 320(2) are not applicable to permit the parties to compound the offences. In such an eventuality, this Court can exercise the power under Section 482 Cr.P.C., in order to quash the proceedings on account of compromise having been entered into by them. Hon'ble Apex Court in the case of GIAN SINGH VS. STATE OF PUNJAB AND ANOTHER reported in (2012) 10 SCC 303, has held to the following effect:
"54. 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 wrongdoing that seriously endangers and threatens well-being of society and 9 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 10 its own facts and no hard-and-fast category can be prescribed."
7. Thus, on combine reading of Sections 320(5) and 320(6) of Cr.P.C. and the dicta laid down by Apex Court in GIAN SINGH's case, it would give a clear indication that wherever the fact would be paramateria of the directions issued by the Apex Court, even though offences are not compoundable in nature, if really parties have compounded the offences, the interest of parties requires that such criminal proceedings have to be closed irrespective of the fact that such offences are non-compoundable. Thus, in such circumstances this Court exercising its inherent power under Section 482 of Cr.P.C. can quash such proceedings whether it is at FIR stage or complaint stage, since in matrimonial cases disputes the circumstances may vary from time-to-time. Thus, depending upon the facts and circumstances of each case, this Court in exercise of its power available under Section 482 Cr.P.C. for the purposes of securing the ends of justice and to ensure that there would be no abuse of process of law and to prevent abuse of process 11 of the Court, can quash the proceedings. In other words, there is no bar for this Court to exercise its power under Section 482 of Cr.P.C. to quash the proceedings even when the matter is pending at appellate stage.
8. Keeping these principles of law in mind when I turn my attention back to the facts on hand, as already noticed hereinabove, parties namely, first petitioner and first respondent have filed a petition under Section 13B of Hindu Marriage Act, 1955 in MC No.1060/2017 before Family Court, Bengaluru for divorce by mutual consent and on the said matter being referred to mediation, it resulted in an agreement being entered into between them and they have agreed to dissolve their marriage by mutual consent without any claim against each other. Certified copy of said agreement as entered into between them has also been accepted by the jurisdictional Family Court and decree of divorce has been granted with a direction to the registry to draw the decree accordingly. As such in order 12 to facilitate the parties this Court can exercise the inherent jurisdiction under Section 482 Cr.P.C. for closing the criminal proceedings. In that view of the matter, this Court has accepted the contention put forth by learned Advocates appearing for parties and consequently, sentence passed by V Addl. Chief Metropolitan Magistrate, Bangalore, in C.C.No.16564/2014 deserves to be quashed.
9. First respondent, who is present before Court is identified by her learned counsel and so also the petitioners, who are present before Court. Learned counsel has also filed photocopies of identity cards of the parties issued by statutory authorities to establish their identities, which are also duly signed by parties and counter signed by their respective learned Advocates. Same is placed on record.
10. It also requires to be noticed at this juncture itself that first respondent-wife, who was second petitioner in M.C.No.1060/2017 is present before Court and on enquiry whether there has been any force, threat 13 or coercion for her to enter into such arrangement or agreement, she has stated that without any such circumstances prevailing and out of her own free will and volition she has voluntarily entered into such agreement. She has reiterated what she has stated in the agreement filed before the Family Court. Affidavit dated 31.08.2017 filed in this petition would also indicate that she has no intention to prosecute the complaint filed by her and she has expressed no objection for the proceedings being quashed.
In the light of aforestated facts, I proceed to pass the following:
ORDER
(i) Criminal petition is hereby allowed.
(ii) Proceedings pending against petitioners before Addl. City Civil and Sessions Judge, Bengaluru in Crl.A.No.73/*2017 is hereby quashed. Consequently, order passed by V Addl. Chief *Corrected V.C.O. dtd. 04-10-2017 14 Metropolitan Magistrate, Bangalore in C.C.No.16564/2014 is also quashed.
(iii) Petitioners are acquitted of the offences punishable under Sections 498A, 506 of IPC and Section 3 of Dowry Prohibition Act, 1961.
SD/-
JUDGE DR