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2009 DIGILAW 137 (RAJ)

Pradeep Tak v. State of Rajasthan

2009-01-17

KISHAN SWAROOP CHAUDHARI

body2009
JUDGMENT 1. - This criminal misc. petition under section 482 Cr.P.C. is directed against the order dated 31.7.2007 passed by Civil Judge (Jr. Div.) and Judicial Magistrate, Pali in Cr. Case No.641/2007, State v. Pradeep & Ors. , whereby application for acquitting accused under section 406 I.P.C. was rejected. 2. On the report of Rajni, a case was registered against Pradeep and other persons under sections 498-A, 406 and 120-B IPC and after investigation, challan was filed against petitioner Pradeep and Sushila under sections 498-A and 406 IPC on 3.2.2007. On 30.7.2007, petitioner moved an application before the trial court requesting therein that as the compromise dated 9.4.2007 between the parties has been attested by District Judge, presence of opposite party is not required and the petitioner may be acquitted of the offence under section 406 IPC. This application was rejected by impugned order. 3. Heard learned counsel for the parties, perused the impugned order as well as the record. 4. Learned counsel for the petitioner submitted that compromise between Rajni and petitioner was attested by District Judge on 9.4.2007 and on the very day, decree under section 13-B of the Hindu Marriage Act was passed and as per para 8 of the compromise, Rajni was to file compromise in this case but as Rajni did not file compromise, the petitioner had right to file application and the learned trial court has3 committed error in dismissing the application and in continuing proceedings, hence, proceedings may be quashed. 5. Record reveals that on the report of Rajni, after investigation, challan was filed against petitioner Pradeep and Sushila under sections 498-A and 406 IPC on 3.2.2007. Certified copy of compromise reveals that on 9.4.2007, Rajni and petitioner Pradeep filed compromise before District Judge, Pali, which was attested by him and on the basis of that compromise, decree for divorce under section 13-B of the Hindu Marriage Act was passed on the very day. As per this compromise, the petitioner was to submit compromise in five cases instituted by him and other persons against Rajni and Rajni was to file compromise in this case under section 498-A and 406 IPC. Learned counsel for non-petitioner submitted that petitioner has neither filed compromise nor withdrawn all cases filed against Rajni, hence, Rajni was not under obligation to file compromise in this case. Learned counsel for non-petitioner submitted that petitioner has neither filed compromise nor withdrawn all cases filed against Rajni, hence, Rajni was not under obligation to file compromise in this case. Learned counsel for the petitioner also admitted that compromise in all the cases have not been filed by the petitioner as some of the cases have been instituted by other persons. By this compromise, it cannot be inferred that compromise under section 406 IPC has been attested by the District Judge and the trial court has not committed any error in passing impugned order rejecting the application of the petitioner for acquitting him under section 406 IPC. Until and unless the compromise is filed by the complainant, the trial court had no occasion to attest compromise under section 406 IPC and acquit accused-petitioner of that offence. Merely because compromise has been verified by District Judge, proceedings under section 406 IPC could not have been dropped by the trial court under section 406 IPC. Rajni cannot be directed by the trial court to submit compromise as per compromise dated 9.4.2007 particularly when the petitioner himself has not filed compromise or withdrawn all the cases filed against Rajni. 6. Learned counsel for the petitioner further argued that when the matter has been compromised between the parties, FIR may be quashed. In this case, after investigation on FIR, challan has been filed against petitioner and Sushila and now there is no occasion to quash FIR. Learned counsel for the petitioner has placed reliance on judgment of this Court in Pradeep Kumar Jain v. Smt. Veena Jain & Ors., 2006 WLC (Raj.) UC 192 , in which after consent decree of divorce, in spite of undertaking of wife, she did not withdraw proceedings for seven years, the proceedings were quashed. This case does not help to the petitioner as in this case, petitioner himself has not carried out terms of compromise and at the same time, there is no request in the petition to quash the proceedings. In the aforesaid case, it was observed in para 8 that in B.S.Joshi's case, Apex Court has laid down that offence under sections 498-A and 406 IPC can be compounded in case, the husband and wife arrive at a compromise. Head Note F of 2003 (1) WLC (SC) Cri. 579 : 2003 SCC (Cri) 848, B.S. Joshi & Ors. v. State of Haryana & Anr. Head Note F of 2003 (1) WLC (SC) Cri. 579 : 2003 SCC (Cri) 848, B.S. Joshi & Ors. v. State of Haryana & Anr. clearly lays down that offences which are not mentioned in section 320, held, cannot be permitted to be compounded. In B.S. Joshi's case, Apex Court has nowhere stated that offences under sections 498-A and 406 IPC are compoundable but has laid down that section 320 Cr.P.C. does not limit or affect the powers under section 482 Cr.P.C. and to meet the ends of justice, proceedings can be quashed on account of settlement of dispute between the parties. Learned counsel for the petitioner has also placed reliance on judgment of this Court in Kistur chand & Ors. v. State of Rajasthan, 2007(3) RCC 1285 , in which, FIR under sections 498-A and 406 IPC was quashed on account of settlement of dispute between the parties. This case does not help to the petitioner as petitioner himself has not carried out terms of compromise and parties have no where requested to compound the offence and the petitioner has not prayed relief for quashing the proceedings before this Court. 7. On the report of Rajni, after investigation, challan has been filed against petitioner as well as Sushila under sections 498-A and 406 IPC. By application dated 30.7.2007, petitioner only requested the trial court to acquit him under section 406 IPC and on rejection of the application, this petition has been filed. When there are more accused in the challan including the petitioner, FIR cannot be quashed in part only against the petitioner and that too when the challan has been filed under section 498-A IPC also and the petitioner has not requested before the trial court to acquit him of the offence under section 498-A IPC also. 8. In the light of the aforesaid discussion, the petition is liable to be dismissed as order of the trial court is in accordance with law. 9. Consequently, the petition under section 482 Cr.P.C. filed by the petitioner is dismissed.Petition dismissed. *******