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2014 DIGILAW 776 (GAU)

Masar Ali v. State of Assam

2014-08-06

M.R.PATHAK

body2014
JUDGMENT M.R. Pathak, J. 1. Heard Mr. R. Islam, learned counsel for the petitioner and Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam appearing on behalf of State respondent No. 1. Being aggrieved with the judgment & order dated 16.12.2013 passed by learned Sessions Judge, Nalbari dismissing the Criminal Appeal No. 15/2009 preferred by the petitioner and affirming the judgment and order of conviction dated 31.03.2009 passed by learned Additional Chief Judicial Magistrate, Nalbari in CR Case No. 631C/2006 that was lodged by the respondent No. 2; wherein the petitioner was convicted under Section 498A of the IPC and sentenced him to undergo Simple Imprisonment for 6 (six) months and pay fine of Rs. 2,000/-, in default Simple Imprisonment for another period of 2 (two) months, the petitioner has filed this petition under Section 397 & 401 read with Section 482 Cr.P.C. challenging the same and praying to set aside and quash those judgments & order of conviction and punishment imposed upon him. 2. On 23.07.2014 the petitioner filed an affidavit in this petition stating that he and the respondent No. 2 have amicably resolved their dispute outside the Court during pendency of this matter and both of them have entered into a compromise on 28.05.2014 in presence of the officials & public of Ghoga Gaon Panchayat with regard to pending cases between them namely, T.S. (D) 27/2014, CR Case No. 631C/2006, Maintenance Case No. 142/2007 and this Criminal Revision Petition and for such compromise the respondent No. 2 has already received an amount of Rs. 2,80,000/- as one time maintenance and litigation cost from the petitioner. In the said affidavit it has also been stated that after their compromise on 28.05.2014 an affidavit was executed by them on 29.05.2014 wherein both of them they unequivocally declared that they have mutually divorced each other in presence of witness by resorting to mobarak talaq. 3. Both, the petitioner, Md. Masar Ali and the respondent No. 2, Samsun Nahar are personally present before this Court today and have submitted that they have resolved their disputes outside the Court by a compromise during pendency of this petition and have no ill will/bitterness against each other. The respondent No. 2 specifically submitted that as on date, she does not have any grievances against the petitioner and she acknowledged about the receipt of the amount of Rs. The respondent No. 2 specifically submitted that as on date, she does not have any grievances against the petitioner and she acknowledged about the receipt of the amount of Rs. 2,80,000/- towards one time maintenance and litigation cost from the petitioner, Md. Masar Ali. The respondent No. 2 through Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam has further stated that as the matter has been compromised now, she does not have any objection if the conviction & punishment imposed upon the petitioner in the complaint case being CR Case No. 631C/2006 filed by her is now quashed and set aside. 4. In the present case, the respondent No. 2, wife of the petitioner lodged a complaint petition before the learned Chief Judicial Magistrate, Nalbari, Assam being CR Case No. 631C/2006 which was registered under Sections 498A/406 of the IPC and after the trial, learned Additional Chief Judicial Magistrate, Nalbari found the petitioner guilty under Section 498A IPC and accordingly convicted him under the said Section and imposed punishment, which was affirmed by learned Sessions Judge, Nalbari in Criminal Appeal No. 15/2009 that was preferred by the petitioner herein. Section 498A of the IPC is a non-compoundable offence and though the petitioner and the respondent No. 2 has now compromised their disputes with regard to the complaint of the respondent No. 2 against the petitioner during the pendency of this petition, the question now arose for consideration before the Court is - as to whether the complaint of the respondent No. 2 and the guilt of accused petitioner under Section 498A IPC, being a non-compoundable offence, which was affirmed in appeal, can be set aside & quashed in a petition under Section 482 Cr.P.C. on a compromise during pendency of the petition between the wife/complainant/respondent No. 2 and the offender husband/accused petitioner. 5. In the case of Gian Singh vs. State of Punjab & Anr., a three-Judges Bench of the Hon'ble Supreme Court of India, reported in (2012) 10 SCC 303 , has laid down that -"the criminal cases having overwhelmingly and pre-dominatingly civil flavor stand on different footing for the purposes of quashing, particularly the offences arising from the offences arising out of matrimony relating to dowry, etc. where the wrong is basically private or personal in nature and the parties have resolved their entire dispute and in this category of cases, the High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim, in other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding". 6. The Hon'ble Apex Court in the case of Narinder Singh & Ors. vs. State of Punjab & Ann, reported in (2014) 6 SCC 466 in Para 29 of the judgment has laid down seven principles as guidelines to the High Courts in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Cr.P.C. while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceeding and in clause 29.4 of the said guidelines, the Hon'ble Apex Court has laid down that: "on the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves". 7. From the affidavit of the petitioner and the submissions made by the respondent No. 2, it is clear that the incident involved in this case relates to matrimony and more particularly relates to dowry. Here the wrong was done to the victim respondent No. 2 by her offender husband, the petitioner and both the offender and the victim made a compromise between themselves, towards full and complete settlement of the victim respondent No. 2. Here the wrong was done to the victim respondent No. 2 by her offender husband, the petitioner and both the offender and the victim made a compromise between themselves, towards full and complete settlement of the victim respondent No. 2. Despite such full & complete settlement and compromise between the victim, respondent No. 2 and the offender, wrongdoer, the petitioner it would be unfair and contrary to the interest of justice if the criminal proceeding against the petitioner is allowed to be continued, which would be tantamount to abuse of process of law and such continuation of the criminal case against the accused petitioner shall put him to a great oppression and prejudice causing extreme injustice to him. 8. After hearing the parties and considering the entire aspects of the mater, accepting the compromise between the petitioner and the respondent No. 2, and in view of the above, to secure the ends of justice, the Court hereby quash the complaint petition dated 10.10.2006 lodged by the respondent No. 2 before the learned Chief Judicial Magistrate, Nalbari being CR Case No. 631C/2006 and the consequent judgment & order of conviction dated 31.03.2009 passed by learned Additional Chief Judicial Magistrate, Nalbari in the said CR Case No. 631C/2006 as well as the appellate judgment & order dated 16.12.2013 passed by learned Sessions Judge, Nalbari in Criminal Appeal No. 15/2009. 9. Accordingly this petition is allowed. There shall be no order as to costs. Registry shall send down the records to the Courts below. Petition allowed.