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2010 DIGILAW 905 (ALL)

RAIS v. STATE OF U. P.

2010-03-18

VIJAY KUMAR VERMA

body2010
JUDGMENT Hon’ble Vijay Kumar Verma, J.—By means of this application under Section 482 Cr.P.C. of the Code of Criminal Procedure (in short, ‘the Cr.P.C.’), the applicants Rais, Shamsher, Smt. Jamsheeda and Zahir have invoked inherent jurisdiction of this Court for quashing of the charge-sheet dated 3.10.2009 of Criminal case No. 7149 of 2009 (State v. Rais and others), arising out of case Crime No. 1524 of 2009, under Sections 498A, 323, 307/511, 504, 506 I.P.C., P.S. Kotwali, Muzaffarnagar pending in the Court of Chief Judicial Magistrate, Muzaffarnagar. 2. Shorn of unnecessary details, the facts leading to the filing of the application under Section 482 Cr.P.C., as emerging from accompanying affidavit, in brief, are that the marriage of applicant No. 1 Rais and opposite party No. 3 Smt. Farzana took place about 5 years prior to the incident which is said to have occurred on 10.8.2009. As a result of that incident and due to certain disputes between the couple, an FIR was lodged by Fazlu Khan (Opposite Party No. 2 herein) father of Smt. Farzana, on 14.8.2009 at P.S. Kotwali, Muzaffarnagar, where a case under Sections 498-A, 323, 504, 506, 307/511 I.P.C. and 3/4 D.P. Act was registered against the applicants. It is alleged in the accompanying affidavit that FIR was challenged by the applicants in this Court by filing a writ petition and arrest of the applicants was stayed. After investigation, charge-sheet has been submitted against the applicants, on which cognizance has been taken by the CJM Muzaffarnagar and Criminal case No. 7149 of 2009 is pending against the applicants. It is further averred in the accompanying affidavit that the parties have settled their dispute outside the Court and as a result of the compromise entered into between the parties, Smt. Farzana is now living with her husband and they both are enjoying peaceful life. As a result of the compromise entered into between the parties, the applicants have invoked the inherent jurisdiction of this Court to quash the charge-sheet. 3. I have heard learned counsel for the applicants and AGA representing the State of U.P. 4. As a result of the compromise entered into between the parties, the applicants have invoked the inherent jurisdiction of this Court to quash the charge-sheet. 3. I have heard learned counsel for the applicants and AGA representing the State of U.P. 4. It was submitted by learned counsel for the applicants that the applicant No. 1 Rais and opposite party No. 3 Smt. Farzana have entered into compromise, as a result of which they both are living together and leading happy life and hence this Court should invoke its inherent jurisdiction to quash the proceedings of Criminal case pending in the Court of CJM Muzaffarnagar as a result of filing charge-sheet in case Crime No. 1524 of 2009 of P.S. Kotwali, Muzaffarnagar. For this submission, my attention has been drawn towards the affidavit, which has been filed by Smt. Farzana in the present case on 16.3.2010, in para 5 whereof it is averred that both the parties entered into compromise outside the Court and now the deponent is happily living with her husband and minor children at the house of her in-laws and there is no dispute now between them. 5. The learned AGA on the other hand vehemently contended that the offences punishable under Sections 498A and 307/511 IPC are not compoundable and since there is specific bar under Section 320 (9) Cr.P.C. to compound the offences, which are not compoundable under Section 320 (1) and (2) Cr.P.C., hence this Court cannot quash the proceedings of aforesaid Criminal case. 6. Having considered the submissions made on behalf of the respective parties and keeping in view the facts involved in this case, I am not inclined to accept the aforesaid contention of learned AGA. In my opinion, in appropriate cases, where the dispute is of a personal nature and the parties have settled the dispute amicably, the High Court in exercise of its inherent power under Section 482 Cr.P.C. can quash the Criminal Proceedings even in those cases where the offences are non-compoundable. Reference in this context may be made to the case of Manoj Sharma v. State and others, 2009(9) ADJ 566 (SC), in which the Criminal Proceedings arising out of the FIR under Section 420/ 468/ 471/ 34/120B IPC was quashed by Hon’ble Apex Court on the basis of the settlement arrived at between the parties. Section 320 Cr.P.C. cannot be read in isolation. Section 320 Cr.P.C. cannot be read in isolation. It has to be read alongwith other provisions of the code. One such other provision is Section 482 Cr.P.C. which reads thus : S. 482. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. 7. The words “Nothing in this Code” used in Section 482 is a non-obstante clause, and give it overriding effect over other provisions in the Cr.P.C. The words “or otherwise to secure the ends of justice” in Section 482 implies that to secure the interest of justice, sometimes (though only in very rare cases) the High Court can pass an order in violation of a provision in the Cr.P.C. 8. It is true that in certain decisions of the Hon’ble Apex Court, it has been observed that the power under Section 482 Cr.P.C. cannot be exercised to do something which is expressly barred under the Code, vide Mosst Simrikhia v. Dolley Mukherjee ( AIR 1990 SC 1605 ), R.P. Kapur v. State of Punjab ( AIR 1960 SC 866 ), Sooraj Devi v. Pyare Lal and another ( AIR 1981 SC 736 ). 9. However, as held by the Hon’ble Apex Court in Manoj Sharma v. State (supra), in my opinion afore-cited judgments cannot be read as a Euclid’s formula, since it is well settled that judgements of a Court cannot be read mechanically and like a Euclid’s theorem. See Dr. Rajbir Singh Dalal v. Chaudhari Devi Lal University ( 2008 (8) JT 621 ) and Bharat Petrolium Corporation Ltd. and another v. N.R. Vairamani and another ( AIR 2004 SC 4778 ). In rare and exceptional cases a departure can be made from the principle laid down in the decisions referred to in para 8 above, as observed by the Hon’ble Aopex Court in B.S. Joshi and others v. State of Haryana and another, 2003 (46) ACC 779. 10. In rare and exceptional cases a departure can be made from the principle laid down in the decisions referred to in para 8 above, as observed by the Hon’ble Aopex Court in B.S. Joshi and others v. State of Haryana and another, 2003 (46) ACC 779. 10. Section 320 (9) Cr.P.C. was creating a lot of difficulty and hardship to the public and hence a way out was found by Hon’ble Apex Court in the case of B.S. Joshi (supra) , in which it has been observed that the High Court under Section 482 Cr.P.C. can quash the Criminal Proceedings, if it comes to the conclusion that the interest of justice so requires e.g; where there would almost be no chance of conviction. In a case under Section 498A IPC, if the parties enter into a compromise, the chances of a ultimate conviction are bleak and hence, no useful purpose would be served by allowing the Criminal Proceedings to continue and they should, therefore, be quashed by exercising power under Section 482 Cr.P.C. In B.S. Joshi’s case (supra), the Hon’ble Apex Court devised a creative solution to the problem and quashed the proceedings in exercise of its inherent power. The said decision was followed by Hon’ble Apex Court in Nikhil Marchent v. Central Bureau of Investigation and another, JT 2008 (9) SC 192. 11. The following observations made by the Hon’ble Apex Court in B.S. Joshi’s case (supra), in para 12 of the report are worth-mentioning : “Marriage is a scared ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the Criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a Court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their “ cases” in different Courts. There is no doubt that the object of introducing Chapter XX-A containing Section 498-A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498-A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper-technical view would be counter productive and would act against interests of women and against the object for which this provision was added. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XXA of Indian Penal Code.” 12. In para 13 of the report in B.S. Joshi’s case (supra), the Hon’ble Apex Court has held that the High Court in exercise of its inherent power can quash Criminal Proceedings or FIR or complainant and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code. Therefore, in view of the afore-cited observations made by the Hon’ble Apex Court in B.S. Joshi case (supra), with a view to do complete justice, this Court in exercise of its inherent power can quash the proceedings of aforesaid Criminal case, because the parties have settled their dispute amicably out of the Court and they are living now peacefully after arriving at a settlement. 13. Consequently, the application under Section 482 Cr.P.C. is allowed. The charge-sheet dated 3.10.2009 of case crime No. 1524 of 2009, under Sections 498A, 307/511, 323, 504, 506 IPC of P.S. Kotwali, District Muzaffarnagar and proceedings of Criminal case No. 7149 of 2009 (State v. Rais and others), pending in the Court of Chief Judicial Magistrate Muzaffarnagar are hereby quashed. ————