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2006 DIGILAW 101 (PAT)

Ajeya Verma v. State Of Bihar

2006-01-27

INDU PRABHA SINGH

body2006
Judgment Indu Prabha Singh, J. 1. This is an application u/s. 482 of the Code of Criminal Procedure, 1973 (in short the Code). It is directed against the order dated 28-9-2005 passed by the Chief Judicial Magistrate, Patna by which he had taken cognizance of the offences u/s. 498-A of the Indian Penal Code and Secs. 3/4 of the Dowry Prohibition Act against the present petitioners. 2. The petitioners have contended that the Chief Judicial Magistrate, Patna has taken cognizance in a mechanical way without considering the attending facts and circumstances of this case. The criminal case between the petitioners and the informant has ended in a compromise which was recorded by this Court in Cri. Misc. Nos. 721 of 2004 and 746 of 2004, both heard together and disposed of by a common order dated 10-9-2004 (Annexure-1). The compromise of the criminal case was recorded by the learned Principal Judge, Family Court, Patna in his judgment dated 11-10-2004 in Matrimonial Case No. 223 of 2003 (Annexure-3). In the said matrimonial case the informant had stated in her deposition that she has compromised the criminal case also as will appear from Annexure-4. This Court had directed for the withdrawal of the aforesaid criminal case as a result of which the informant had filed a withdrawal petition before the Police Officer (Annexure-5). The learned Advocate appearing on behalf of the Informant had undertaken before this Court that he would withdraw the criminal case filed against the petitioners. 3. The petitioners have further contended that the order taking cognizance of the offences against the present petitioners by the learned Chief Judicial Magistrate was wrong and the charge-sheet filed by the police was a wilful disobedience of the direction given by this Court in the aforesaid two miscellaneous cases. The petitioner No. 1 and the informant has obtained a decree of divorce by mutual consent as will appear from Annexure-3. Both of them in their joint petition before the Principal Judge, Family Court now stated that they have agreed for the withdrawal of the criminal case. The learned Chief Judicial Magistrate has taken cognizance by the impugned order on the basis of the police report without considering the relevant facts and has transferred the case to the Court of the S.D.J.M., Patna which has been numbered as TR. No. 3127/05. The learned Chief Judicial Magistrate has taken cognizance by the impugned order on the basis of the police report without considering the relevant facts and has transferred the case to the Court of the S.D.J.M., Patna which has been numbered as TR. No. 3127/05. The petitioner No. 1 is the husband of the informant and petitioner No. 1 is her mother-in-law. The F.I.R. was filed by the informant before Budha Colony Police Station which has been forwarded to Kankarbagh police station and has been registered as Kankarbag P.S. Case No. 453 of 2003. 4. The petitioners had moved this Court for the grant of anticipatory ball vide Cr. Misc. Nos. 721 of 2004 and 746 of 2004. During the course of hearing in these two cases it was submitted before the learned single Judge that the Informant wanted to compromise all criminal and civil cases between the parties. Both the parties finally reached the terms of the compromise and have signed the compromise petition, In the order passed by the learned single Judge (S, K. Singh, J,) (Annexure-1) it has been observed that the learned Counsel for the informant had undertaken to file an application for the withdrawal of the criminal cases before the Court as also before the Police Officer, in the divorce suit also a joint petition (Annexure-2) was filed informing the Court that the Informant will withdraw her criminal case. 5. On 18-9-2004 the informant filed an application before the Sr. Superintendent of Police, Patna for withdrawal of Kadamkuan (Kankarbagh) P.S. Case No. 453 of 2003 since the case was still in the stage of investigation. Petitioner No. 1 had also filed an application before the police. However, the police ignoring these applications has submitted a charge-sheet in the case in the Court of the Chief Judicial Magistrate on the basis of which cognizance of the offence has been taken. From the aforesaid it would appear that a compromise has been reached between the parties and they no longer wanted to continue the criminal case lodged against the petitioners. The Hon ble Supreme Court has indicated that in case in which there is compromise between the parties the High Court should invoke in its inherent Jurisdiction and should quash the criminal proceedings against them as has been held in the case of B.S. Joshi V/s. State of Haryana -. The Hon ble Supreme Court has indicated that in case in which there is compromise between the parties the High Court should invoke in its inherent Jurisdiction and should quash the criminal proceedings against them as has been held in the case of B.S. Joshi V/s. State of Haryana -. Under these circumstances it has been prayed that this application be admitted and after hearing the parties the impugned order be quashed. 6. The parties have been heard at length at the stage of admission itself. On behalf of the State it has been submitted that this is not a fit case for admission and there is no legal infirmities in the impugned order. It has been further submitted that the petition filed by the petitioners is against the provisions of law and the same cannot be admitted. It has been prayed that the petition be rejected at this stage itself since continuing with this petition and its hearing will be unnecessary wastage of valuable time of the Court. In this view of the submission and also on hearing the petitioners I am passing orders with respect to the various questions of law raised by both the parties with respect to the admission of this application. 7. The impugned order shows that the learned Chief Judicial Magistrate has taken the cognizance of the offences u/s. 498-A of the Indian Penal Code and also under Secs. 3/4 of the Dowry Prohibition Act on the basis of the charge-sheet submitted in the case as also on the basis of the perusal of the case diary. It is this order dated 28-9-2000 which has been challenged in the present application. On behalf of the State it has been submitted that the offence u/s. 498-A of the Indian Penal Code is not compoundable and, therefore, the law does not permit compounding of the offence under this section. In this connection he has drawn my attention to sec. 320 of the Code which relates to the compounding of the offences. There are two tables given in this section but in none of them sec. 498-A of the Indian Penal Code figures. Sub-sec. (9) of sec. 320 runs as follows: (9) No offence shall be compoundable except as provided by this section. 320 of the Code which relates to the compounding of the offences. There are two tables given in this section but in none of them sec. 498-A of the Indian Penal Code figures. Sub-sec. (9) of sec. 320 runs as follows: (9) No offence shall be compoundable except as provided by this section. On the basis of this provision of law it has been submitted before me that since offence u/s. 498-A of the Indian Penal Code is non-compoundable, the same can-not be allowed to be compromise. It has also been submitted that the function of the Court is not to legislate but to implement the law as its exist in the statute. The function of legislation should be left to competent legislature and should not be taken over by the Courts. 8. This matter had come up for consideration before the Hon ble Supreme Court In the case of Ram Lal V/s. State of Jammu and Kashmir 1999 (1) PLJR 80 (SC) : 1999 Cri LJ 1342 in which it has been held that an offence declared to be non-compound-able by law cannot be compounded even with the permission of the Court due to a legislative ban. In this decision also a reference has been made to Sub-sec. (9) of sec. 320 of the Code. In this case also the allegations were u/s. 326 of the Indian Penal Code which is non-compoundable as per the provisions of sec. 320 of the Code. The attention of the Hon ble Judges constituting the Bench (K. T. Thomas and M. B. Shah, JJ.) was drawn to other decisions of the Hon ble Court in the case of Y. Suresh Babu V/s. State of A.P. - and Mahesh Chand V/s. State of Rajasthan 1990 SCC (Suppl) 681 : 1989 Cri LJ 121 wherein non-compoundable offences were allowed to be compromised. The learned Judges constituting the Bench in the case of Ram Lal (supra) in paragraph Nos. 3 and 4 at page 81 (of Pat LJR) : (at p. 1343 of Cri LJ) of the judgment have observed as follows: 3. We are unable to follow the said decision as a binding precedent. The learned Judges constituting the Bench in the case of Ram Lal (supra) in paragraph Nos. 3 and 4 at page 81 (of Pat LJR) : (at p. 1343 of Cri LJ) of the judgment have observed as follows: 3. We are unable to follow the said decision as a binding precedent. Section 320 which deals with "compounding of offences" provides two Tables therein, one containing descriptions of offences which can be compounded by the persons mentioned in it, and the other containing descriptions of offences which can be compounded with the permission of the Court by the persons indicated therein. Only such offences as are included in the said two Tables can be compounded and none else. Sub-sec. (9) of sec. 320 of the Code of Criminal Procedure, 1973 imposes a legislative ban in the following terms: (9) No offence shall be compounded except as provided by this section. 4. It is apparent that when the decision in Mahesh Chand (1989 Cri LJ 121) (supra) was rendered attention of the learned Judges was not drawn to the aforesaid legal prohibition. Nor was attention of the learned Judges who renderd the decision in Y. Suresh Babu (supra) drawn. Hence those were decisions are rendered per incuriam. We hold that an offence which law declares to be non-compoundable even with the permission of the Court cannot be compounded at all. The offence u/s. 326, Indian Penal Code, 1860 19, admittedly, non-compoundable and hence we cannot accede to the request of the learned Counsel to permit the same to be compounded. 9. From the aforesaid it would become clear that once the law declares an offence to be non-compoundable it cannot be compromised even with the consent of the parties and permission of the Court. In the present case as has been noticed above sec. 498-A of the Indian Penal Code is a non-compoundable offence and the same cannot be allowed to be compromised between the parties. In this connection a reference may also be made to the case of Surendra Nath Mohanty V/s. State of Orissa - in which it has been held that the offence which are declared to be non-compoundable cannot be compounded at all even with the permission of the Court. Those sections not mentioned in sec. 32-D of the Code cannot be allowed to be compromises. Those sections not mentioned in sec. 32-D of the Code cannot be allowed to be compromises. This also supports the decision of the Hon ble Supreme Court in the case of Rarn Lal (1979 Cri LJ 1342) (supra). However, in Annexure-1 which is an order dated 10-9-2004 passed in Cr. Misc. Nos. 721/04 and 746/2004 the learned single Judge (S. K. Singh, J.) has observed as follows: During the pendency of these applications due to intervention of the well wishers and counsel representing the party, the matter has amicably been settled and a compromise has reached that the matrimonial suit as well as all the criminal cases pending between the parties would be withdrawn. As the matter has already been settled, the present bail application is disposed of in terms of compromise petition, which is to be filed in the Court of Principal Judge, Family Court, Patna and a copy of the same is being filed in this Court. Let this compromise petition be filed in the Court below on the next date fixed in the Matrimonial suit. The Principal Judge, Family Court, Patna is directed to look into the same and as a compromise has reached between the parties, the same should be disposed of in terms of compromise reached between the parties. It goes without saying that the application as required would also be filed in view of the agreement reached, for which the informant, who is represented through counsel, undertakes that he would also file an application for withdrawal of cases before the Court/police officers concerned. 10. The aforesaid direction by the learned single Judge clearly runs counter to the decisions of the Hon ble Supreme Court mentioned above since the offences mentioned above are non-compoundable, the same cannot be allowed to be compromised even with the permission of the Court and the consent of the parties. On behalf of the petitioners it has been submitted that since the aforesaid observation has been passed by the learned single Judge of this Court it is binding on this Bench and a single Judge of this Court cannot go against this direction given by S. K. Singh, J. as noticed above. On behalf of the petitioners it has been submitted that since the aforesaid observation has been passed by the learned single Judge of this Court it is binding on this Bench and a single Judge of this Court cannot go against this direction given by S. K. Singh, J. as noticed above. However, in this connection it may be observed that in the order passed by the learned single Judge (S. K. Singh, J.) no notice has been taken to the decisions of the Hon ble Supreme Court in the cases of Ram Lal (1999 Cri LJ 1342) (supra) and Surendra Nath Mohanty (1999 Cri LJ 3496) (supra) as a result of which the decision by S. K. Singh, J. becomes per incuriam and not binding on this Bench. In any view of the matter the law laid down by the Hon ble Supreme Court is the law of the land and is binding on all. The same has to be followed Invariably by all concerned. 11. From what has been stated above it becomes clear that an offence under Sec. 498-A of the Indian Penal Code is non-compoundable and no direction to compromise any such case to the learned Court below could have been given by this Court and no Court could have allowed any such compromise to be effected in teeth of the legal prohibition as contained in sec. 330 of the Code. 12. On behalf of the petitioners it has been submitted that since the police was still continuing with the investigation of the criminal case the informant filed a petition before the police for its withdrawal, The police should have accepted the withdrawal petition and should have stopped the investigation. Under this circumstance no charge-sheet should have been filed and no cognizance of the offence could have been taken by the Court. In other words it has been stated that once the informant had withdrawn her F.I.R. and the case before the police that was the end of the matter and the police was not required to take any action in it or to continue with the investigation, This argument, to say the least, is entirely erroneous. No power has been given to police to allow any withdrawal of the case by the informant. No power has been given to police to allow any withdrawal of the case by the informant. A case instituted before the police is under the control and supervision of the Court taking cognizance of the offence and a withdrawal petition, if any can only be filed before the learned Chief Judicial Magistrate and not before the police as has been done in this case. The police is completely incompetent to handle any such withdrawal petition or to act on it. The final authority in this regard is vested in the Court and not with the police. Moreover the law does not give power to the informant to withdraw a case instituted before the police even before the Court. In this connection a reference may be made to sec. 321 of the Code which deals with the withdrawal from the prosecution. It provides that it is only the Public Prosecutor or the Additional Public Prosecutor in charge of the case that may with the consent of the Court withdraw from the prosecution of any persons. If such withdrawal has been made before the charge has been framed the accused shall be discharged, if, however, the charge has already been framed in the case the effect of withdrawal would be the acquittal of the accused persons. From this it would also appear that the informant had no role to place in the matter of withdrawing of a criminal prosecution instituted on the basis of the F.I.R. nor the police has any say in the matter so far as the withdrawal petition filed by the informant before the police is concerned. Hence it appears that the whole exercise was misconceived and against the provisions of law. Hence I do not find any merit in these submissions. 13. Learned Counsel for the petitioners has, however, drawn my attention to the case of B. S. Joshi (2003 Cri LJ 2028) (supra) in support of his contention that matrimonial cases even if the offences are non-compoundable the Court can quash the entire criminal proceeding in order to secure the ends of justice and to prevent the abuse of the process of the Court. In the said decision the ambit and scope of sec. In the said decision the ambit and scope of sec. 482 of the Code in relation to matrimonial cases was considered as in the present case the case of B. S. Joshi (supra) also related to a case u/s. 498-A and also sec. 406 of the Indian Penal Code, 1860 . Both these offences are non-compoundable. In the present case also the allegation u/s. 3/4 of the Dowry Prohibition Act are also non-compoundable. In the case of B. S. Joshi (supra) also the wife had filed a case against her husband and his family members. Subsequently their dispute resolved as a result of which they jointly prayed before the High Court for quashing the criminal proceeding and F.I.R. The High Court dismissed their prayer on the ground that both the offences were not compoundable and, therefore, the bar of sec. 320 of the Code will apply. This judgment of the High Court was set aside and the F.I.R. was quashed by the Hon ble Supreme Court in the case of B. S. Joshi (2003 Cri LJ 2028) (supra) in which it was held that the High Court in exercise in its inherent power can quash the criminal proceeding or an F.I.R. and sec. 320 of the Code will not limit or effect the powers of the High Court u/s. 482 of the Code. 14. The Hon ble Supreme Court referred to the purpose and object for adding Sec. 498-A in Indian Penal Code, 1860 by Chapter XXA holding that no doubt sec. 498-A was added with a view to punishing the husband for torturing the wife or coercing her relation to satisfy the unful dowry demands, In this decision, however, the Hon ble Supreme Court caution that there may be a case in which the exercise of this power would be counter productive and would act against the interest of the wife or her relations. Also it was held that in such a situation the non-exercise of inherent power to quash the proceeding would prevent the wife from settling earlier. In such a situation it was held by the Apex Court as mentioned above. 15. Also it was held that in such a situation the non-exercise of inherent power to quash the proceeding would prevent the wife from settling earlier. In such a situation it was held by the Apex Court as mentioned above. 15. In the present case as will appear from Annexure-1 it was submitted before this Court that the parties had amicably settled their dispute to the effect that matrimonial suit and their criminal proceeding pending between them would be withdrawn as per this Annexure-A this Court (S. K. Singh, J.) had directed the lower Court to dispose of the matrimonial suit in terms of the compromise also the learned Counsel for the informant assured the Court that he would withdraw the criminal cases filed against the petitioners. 16. It also appears from Annexure-3 that the matrimonial case between the parties was decreed by mutual consent and the marriage between petitioner No. I and his wife was dissolved by a decree of divorce passed on the basis of mutual consent. From all these it would appear that it is a fit case to quash the criminal proceeding against the petitioner on the lines of the decision in the case of B. S. Joshi (2003 Cri LJ 2028) (supra). 17. In the present case a prayer has been made to quash the order dated 28-9-2005 passed by the learned Chief Judicial Magistrate by which he took cognizance of the offence. It has been further prayed in this petition that such other order be passed which may be deemed fit and proper in the facts and circumstances of the case. No doubt in this case quashing of the F.I.R. has not been prayed as was done in the case of B. S. Joshi (2003 Cri LJ 2028) (supra). However, here also the prayer has been made to pass such order which may be deemed fit and proper. From the facts and circumstances of this case it is abundantly clear that this is a case in which the quashing of the criminal proceeding was necessary to prevent the abuse of the process of the Court and otherwise to secure the ends of justice. 18. In the case of B. S. Joshi (2003 Cri LJ 2028) (supra) it has been held that in such a situation the criminal proceeding should be quashed in exercise of the power u/s. 482 of the Code. 18. In the case of B. S. Joshi (2003 Cri LJ 2028) (supra) it has been held that in such a situation the criminal proceeding should be quashed in exercise of the power u/s. 482 of the Code. It is well settled that procedural law exists to secure the ends of Justice and not to frustrate it by endless technicality. The sole object of Courts as also of the Judicial system is that justice should be secured to the parties. In the present case since the parties have already settled their dispute and have obtained a decree for divorce by mutual consent and have also expressed their desire not to proceed with the criminal cases, I think, for the ends of justice this is a fit case in which in exercise of the power u/s. 482 of the Code the criminal proceeding against the petitioners be quashed. 19. From the detailed discussions made above it becomes perfectly clear to me that in exercise of the inherent powers as per sec. 482 of the Code I hold that this is a fit case in which the criminal proceeding against the present petitioners should be quashed, 20. In the result, this application is allowed and the impugned order as also the entire criminal proceeding against the petitioners are quashed.