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2011 DIGILAW 1216 (HP)

Anuj Khanna v. Amita Khanna

2011-03-10

DEV DARSHAN SUD

body2011
JUDGMENT : Dev Darshan Sud, J. Both these petitions are being disposed of by this common order as they arise out of the same set of facts. The petitioners have approached this Court under Section 482 of the Code of Criminal Procedure and Article 227 of the Constitution of India for quashing of two orders dated 30.8.2010 and 29.11.2010 passed by the learned trial Magistrate. 2. A complaint was filed under the Domestic Violence Act by respondent-Amit Khanna against each of the petitioners. The learned court by its order dated 30th August, 2010 observed that there is sufficient ground to proceed against the respondents and summons were issued for 13.9.2010. On 29.11.2010, the Court ordered: “Power of attorney and an application for dismissal of complaint filed on behalf of the respondents. Copy supplied. On 29.11.2010, the parties are directed to ensure the presence of the respective clients i.e. parties to the present case so that conciliation attempt could be made” 3. These are the two orders which have been challenged. Learned counsel appearing for the petitioners submits that the Court has acted without jurisdiction because the application which has been instituted on behalf of the petitioners herein stating that the entire controversy between the parties have been settled and further proceedings are an abuse of the process of the Court/law and that the complaint is based on misrepresentation of facts. 4. What I find from the record is that on 29.11.2010, the Court notices that the parties were not present and the case was accordingly adjourned for 24.12.2010 and reply to the application instituted for dismissal of the complaint was called for. On 12.1.2011, again the court granted further time for filing of reply for 14.2.2011. 5. A perusal of the orders of the lower Court show that the matter has not been concluded. Rather the Court had no opportunity to judge the veracity of the allegations made to the effect that the entire matter stands compromised or not. Accordingly I find that the petitions at this stage are pre-mature. 7. Learned counsel for the petitioners relies upon the decision of the Supreme Court in B.S.Joshi and others Vs. State of Haryana and another (2003) 4 S.C.C. 675 to urge that it is the duty of the trial Court to encourage settlement in matrimonial disputes. Accordingly I find that the petitions at this stage are pre-mature. 7. Learned counsel for the petitioners relies upon the decision of the Supreme Court in B.S.Joshi and others Vs. State of Haryana and another (2003) 4 S.C.C. 675 to urge that it is the duty of the trial Court to encourage settlement in matrimonial disputes. In particular, the learned counsel relies upon the following observations of the Supreme Court: “6 In Pepsi Foods Ltd. Vs. Special Judicial Magistrate (1998) 5 SCC 749, this court with reference to Bhajan lal case observed that the guidelines laid therein as to where the court will exercise jurisdiction under Section 482 of the Code could not be inflexible or laying rigid formulae to be followed by the courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. It is well settled that these powers have no limits. Of course, where there is more power, it becomes necessary to exercise utmost care and caution while invoking such powers. 10. In State of Karnataka Vs. L.Muniswamy (1977) 2 SCC 699 considering the scope of inherent power of quashing under Section 482, this Court held that in the exercise of this wholesome power, the High Court is entitled to quash proceedings if it comes to the conclusion that the ends of justice so require. It was observed that in a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice and that the ends of justice are higher than the ends of mere law though justice had got to be administered according to laws made by the legislature. This Court said that the compelling necessity for making these observations is that without a proper realization of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction. On facts, it was also noticed that there was no reasonable likelihood of the accused being convicted of the offence. On facts, it was also noticed that there was no reasonable likelihood of the accused being convicted of the offence. What would happen to the trial of the case where the wife does not support the imputations made in the FIR of the type in question. As earlier noticed, now she has filed an affidavit that the FIR was registered at her instance due to temperamental differences and implied imputations. There may be many reasons for not supporting the imputations. It may be either for the reason that she has resolved disputes with her husband and his other family members and as a result thereof she has again started living with her husband with whom she earlier had differences or she has willingly parted company and is living happily on her own or has married someone else on the earlier marriage having been dissolved by divorce on consent of parties or fails to support the prosecution on some other similar grounds. In such eventuality, there would almost be no chance of conviction. Would it then be proper to decline to exercise power of quashing on the ground that it would be permitting the parties to compound non-compoundable offences? The answer clearly has to be in the “negative”. It would, however, be a different matter if the High Court on facts declines the prayer for quashing for any valid reasons including lack of bona fides. 11. In Madhavarao Jiwajirao Scindia Vs. Sambhajirao Chandrojirao Angre (1988) 1 SCC 692 it was held that while exercising inherent power of quashing under Section 482, it is for the High Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. Where, in the opinion of the court, chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may, while taking into consideration the special facts of a case, also quash the proceedings. 12. The special features in such matrimonial matters are evident. It becomes the duty of the court to encourage genuine settlements of matrimonial disputes. (PP 679, 681 & 682)” 8. 12. The special features in such matrimonial matters are evident. It becomes the duty of the court to encourage genuine settlements of matrimonial disputes. (PP 679, 681 & 682)” 8. The proposition of law is undisputed but at the same time, when the matter was pending before the trial Court, it was for that court to have pronounced on the validity of the compromise. Needless to say that if it was found that the compromise was genuine and had been proved in accordance with law, the continuation of the complaint, would be nothing but an abuse of the process of the Court. Instead, the petitioners have chosen to approach this Court straightway without waiting for the adjudication on that issue. 9. In these circumstances, I do not find this to be a fit case in which to interfere under inherent powers of this Court under Section 482 Cr.P.C. and Article 227 of the Constitution of India. These petitions are accordingly disposed of with the direction that the learned trial Court shall consider the application instituted by the petitioners herein and then proceed with the matter further. 10. Learned counsel also expresses apprehension that since the petitioners are resident of Punjab, they will be subjected to harassment by the respondents who are local residents of Kullu. It is trite to observe that this situation would not arise and in any event if that happens, it would be open to the petitioners herein to approach the learned trial Court bringing those facts to its notice which would then proceed forthwith in accordance with law. The petitions are disposed of. 11. Let the record of the courts below be sent back immediately. Parties are directed to appear before the learned trial Court on 29th April, 2011 for further proceedings. It is further clarified that in case the petitioners seek exemption from appearance, it would be granted to them in accordance with law.