Manzoor Alam s/o Khuda Baksh v. State of Jharkhand
2016-05-11
RAVI NATH VERMA
body2016
DigiLaw.ai
ORDER : The solitary question, which falls for determination in the instant case, is as to whether the matrimonial dispute resulting in filing of complaints by the wife under Section 498-A I.P.C and also under Section 4 of Dowry Prohibition Act and affirmed by the appellate court can be allowed to be compounded under Section 320 of the Code of Criminal Procedure (in short “the Code”). 2. Bereft of unnecessary details, the facts, which is relevant for the proper adjudication of the issue involved in this Revision application, in short is that, at the instance of the complainant Afsana Khatoon, a complaint case bearing C.P. Case No. 1503 of 2009 was instituted under the aforesaid provisions of the Indian Penal Code and Dowry Prohibition Act with the allegation that her marriage was solemnized with Manzoor Alam-the petitioner no.1 on 10.05.2005 as per Muslim rites and rituals and since after marriage, the complainant along with petitioner no.1 were enjoying their conjugal life but after sometime, the accused persons including her husband started demanding rupees one lakh and a colour T.V and due to non-fulfillment of their dowry demands, she was subjected to physical and mental torture. Even, she was not provided meal and due to such assault, a newly born child died immediately after birth and for the treatment of the same Rs. 30,000/-was given by her father. Thereafter, male child came in their life, but as the demand of dowry was not fulfilled by her father, the accused persons were giving threatening to give her Talaque. An information was also given to D.S.P. Barhi and S.P. Hazaribagh and to the Woman Commission, but when no action was taken, the instant case was filed. 3. Learned Judicial Magistrate, 1st Class, Hazaribagh, after examination of the complainant on solemn affirmation and other witnesses took cognizance of the offence under Sections 323 and 498-A I.P.C and also under Sections 3 /4 D.P. Act. After framing of charges, complainant’s witnesses were examined and after hearing both the parties, the trial court convicted the petitioners under Section 498-A I.P.C and also under Section 4 of D.P. Act sentenced to undergo simple imprisonment for one year and six months respectively and on appeal preferred by the petitioners, appellate court affirmed the judgment of conviction and order of sentence. Hence, this Criminal Revision. 4.
Hence, this Criminal Revision. 4. During the pendency of this revision, a joint comprise petition by way of interlocutory application bearing No. 1401 of 2016 was filed at the instance of the petitioners. Another interlocutory application bearing No. 1402 of 2015 was also filed with prayer to exonerate the petitioners from surrendering in court below. Both the parties were physically present in court and they admitted the factum of compromise and on inquiry the complainant informed that she has now no grievance against the petitioners as she has compromised the case. 5. Md. Sajid Yunus learned counsel for the petitioners submitted that though the Section 498-A I.P.C. as well as the provisions of Dowry Prohibition Act are not compoundable but in view of the mandates given by the Hon’ble Supreme Court in the case of B.S. Joshi and other Vs. State of Haryana and another reported in (2003) 4 SCC 675 in a similarly situated case under Section 498-A I.P.C, the permission was accorded to the parties to compound the offence. It was also submitted that for the ends of justice, when the parties have settled their disputes and have filed joint compromise petition, it is the duty of the court to encourage the genuine settlement of matrimonial disputes. 6. Mr. Zahid Ahmad learned counsel representing the complainant-opposite party no.2 submitted that since the parties have settled their disputes and have filed a joint compromise petition, a lenient view may be taken and the petitioners may be acquitted of the charges and the complainant has no objection, if the petitioners may be exempted from surrendering in court below. 7. Section 320 of the Code gives the details of offences in different tables, which are compoundable by the parties and those which are compoundable with the leave of the court. It is no doubt, Section 498-A I.P.C is not included in the above list of Section 320 of the Code. 8. In the case of B.S Joshi (supra), the Hon’ble Supreme Court while considering the similar issue arising out of a case under Section 498-A I.P.C. held in paragraph 14 as follows:- “14. There is no doubt that the object of introducing Chapter XX-A containing Section 498-A in the Indian Penal Code was to prevent torture to a woman by her husband or by relatives of her husband.
There is no doubt that the object of introducing Chapter XX-A containing Section 498-A in the Indian Penal Code was to prevent 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 of coerce her or her relatives to satisfy unlawful demands of dowry. The hypertechnical view would be counterproductive 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 XX-A of the Indian Penal Code.” 9. In another case Gyan Singh vs. State of Punjab (2012) 10 SCC 303 , the Hon’ble Supreme Court has widened the scope of mandates given in the case of B.S. Joshi (supra) and held that where the accused has been committed for trial or he has been convicted and the appeal is pending, composition can only be done with the leave of the Court to which he has been committed or with the leave of the appellate court, as the case may be. The Hon’ble Supreme Court has further held that the Revisional Court is also competent to allow any person to compound any offence who is competent to compound. The Supreme Court in paragraph 51 of the judgment has held as follows:- “51. Section 320 of the Code articulates public policy with regard to the compounding of offences. It catalogues the offences punishable under IPC which may be compounded by the parties without permission of the court and the composition of certain offences with the permission of the court. The offences punishable under the special statues are not covered by Section 320. When an offence is compoundable under Section 320, abatement of such offence or an attempt to commit such offence or where the accused is liable under Section 34 or 149 IPC can also be compounded in the same manner. A person who is under 18 years of age or is an idiot or a lunatic is not competent to contract compounding of offence but the same can be done on his behalf with the permission of the court.
A person who is under 18 years of age or is an idiot or a lunatic is not competent to contract compounding of offence but the same can be done on his behalf with the permission of the court. If a person is otherwise competent to compound an offence is dead, his legal representatives may also compound the offence with the permission of the court. Where the accused has been committed for trial or he has been convicted and the appeal is pending, composition can only be done with the leave of the court to which he has been committed or with the leave of the appeal court, as the case may be. The Revisional Court is also competent to allow any person to compound any offence who is competent to compound. The consequence of the composition of an offence is acquittal of the accused. Sub-section (9) of Section 320 mandates that no offence shall be compounded except as provided by this section. Obviously, in view thereof the composition of an offence has to be in accord with Section 320 and in no other manner.” 10. In the light of the ratio decided in the two above cases B.S. Joshi (Supra) and Gyan Singh case (Supra), it is, undoubtedly, the duty of even the revisional court to encourage the genuine settlement of matrimonial disputes. Admittedly, if the parties have settled their dispute and either revived their relationship or decided to part their ways, in such eventuality, there would be almost no chance of conviction. In the instant case, the parties have settled their disputes at a later stage when the petitioners have been convicted by the trial court and judgment of conviction has been affirmed by the appellate court, even then, in the interest of justice when the complainant on the basis of compromise has herself prayed to acquit the petitioners from their conviction and sentences, the continuation of proceedings, in the facts and circumstance of the case stated above, would amount to abuse of the process of law. The Hon’ble Supreme Court in B.S. Joshi (supra) has also held that it becomes the duty of the court to encourage genuine settlement of matrimonial disputes and in subsequent judgment Gyan Singh case, the Hon’ble Supreme Court has given that privilege to revisional court also to allow any person to compound any offence, who is competent to compound. 11.
The Hon’ble Supreme Court in B.S. Joshi (supra) has also held that it becomes the duty of the court to encourage genuine settlement of matrimonial disputes and in subsequent judgment Gyan Singh case, the Hon’ble Supreme Court has given that privilege to revisional court also to allow any person to compound any offence, who is competent to compound. 11. In view of the discussion made above and relying upon the ratio decided in the above two cases, this Criminal Revision is, hereby, allowed. Accordingly, the conviction and sentence of the petitioners awarded by the trial court and affirmed by the appellate court are set aside. The petitioners are, thus, acquitted of the charges. Since, they were on bail, they are discharged from the liabilities of their respective bail bonds. 12. Since, the petitioners after the confirmation of the judgment and sentence passed by the appellate court had not surrendered and filed a petition before this Court under Section 159 of the Jharkhand Rules for their exemption from surrendering in court below, in the facts and circumstances stated above and in view of the fact that their conviction and sentence have been set aside by this Court, and they are discharged from the liabilities of their bail bonds, no order is required to be passed on interlocutory applications. Revision allowed.