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2020 DIGILAW 1429 (ALL)

Const. Vishram Singh v. State of U. P.

2020-12-03

SAMIT GOPAL

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JUDGMENT : SAMIT GOPAL, J. 1. Heard Sri. Rajesh Kumar Singh, learned counsel for the revisionists and Sri. Irshad Husain, learned brief holder for the State of U.P. Sri. S.R. Sahu, learned counsel appearing on behalf of opposite party no. 2 is not present even when the case is called up in the revised list. 2. The trial court record was summoned which has been received on 08.09.2016 as per the office report, the same has also been perused. 3. By means of the judgment and order dated 31.08.2005 passed by the Chief Judicial Magistrate, Banda, in Criminal Case No. 2383 of 2001 (Smt. Usha Prajapati vs. Constable Vishram Singh and Others) under Sections 498-A, 323, 506 IPC, P.S. Kotwali Nagar, District Banda, the revisionists Constable Vishram Singh, Karelal, Rajesh and Smt. Sumitra have been convicted and sentenced under Section 498-A IPC for one year simple imprisonment and a fine of Rs. 500/- each. Further, Constable Vishram Singh, the revisionist no. 1 has been convicted and sentenced under Sections 323, 504 IPC for three months simple imprisonment. The revisionists Constable Vishram Singh, Karelal and Rajesh have further been convicted and sentenced under Section 506 IPC to six months simple imprisonment each. 4. Against the said judgment and order of conviction dated 31.08.2005, the revisionists preferred an appeal before the Sessions Judge which was numbered as Criminal Appeal No. 25 of 2005 (Vishram Singh and Others vs. State of U.P.) which was decided vide judgment and order dated 01.03.2006 passed by the Additional Sessions Judge, Court No. 4, Banda, wherein the Appellate Court acquitted the accused persons of charges under Sections 323, 504 IPC and in so far as it related to the offences under Sections 498-A, 506 IPC, the conviction of the appellants were maintained but the sentences as awarded to them was modified and they were given benefit of Section 4 of the Uttar Pradesh Probation of Offenders Act, 1958 and they were ordered to be released on probation of good conduct for a period of one year, for which, it was ordered that they will file bail bonds and sureties. 5. This revision is thus preferred against the said judgment and order dated 31.08.2005 passed by the trial court and the judgment and order dated 01.03.2006 passed by the appellate court. 6. The issue in the present matter rests on a very small compass. The opposite party no. 5. This revision is thus preferred against the said judgment and order dated 31.08.2005 passed by the trial court and the judgment and order dated 01.03.2006 passed by the appellate court. 6. The issue in the present matter rests on a very small compass. The opposite party no. 2 Smt. Usha Prajapati, daughter of Ramadheen is the wife of Revisionist No. 1/Constable Vishram Singh. She had filed a complaint dated 30.07.2001 against Vishram Singh, Karelal, Rajesh, Smt. Sumitra, Shiv Rani and Chunnuvadi for offences under Sections 498-A, 323, 506 IPC in the Court of Chief Judicial Magistrate, Banda which was numbered as Criminal Complaint No. 2383/IX of 2001 titled as (Smt. Usha Prajapati vs. Vishram Singh and Others) PS-Kotwali Nagar, District Banda, in which, four accused persons who are the revisionists here, were summoned to face trial. The marriage between the opposite party no. 2/Usha Prajapati and the revisionist no. 1/Constable Vishram Singh was solemnized in May, 1996. Subsequently, the trial in the matter was conducted and the convictions were recorded as stated above by the trial court. The appeal against the said judgment was filed which was decided by the judgment and order as also stated above. The present revision is thus before this Court against both the judgment and orders. 7. The allegations as levelled in the case are not being dealt with and even the evidence is not being dealt with by this Court as the issue in the present matter is only to the extent that since the parties have entered into compromise during the pendency of the appeal which was taken due note of by the Appellate Court and the said compromise was also verified before the Court concerned and further two matters in the Family Court were also decided on the basis of the said compromise, the revision may be allowed and the impugned judgments and orders be set aside. The compromise between the parties was to the effect that the husband and wife had settled their disputes and were living together as husband and wife again and as such the Appellate Court had taken note of the same and though maintaining the conviction had modified the sentenced as awarded. This Court as of now has under powers of its revisional jurisdiction been knocked to set aside the conviction of the revisionists. The dispute between the parties was a matrimonial dispute. 8. This Court as of now has under powers of its revisional jurisdiction been knocked to set aside the conviction of the revisionists. The dispute between the parties was a matrimonial dispute. 8. In view of the settlement arrived between the revisionist no. 1 and opposite party no. 2 on the basis of which two matters before the Family Court had been decided and the compromise was duly verified by the concerned court below and the revisionist no. 1/Constable Vishram Singh and the opposite party no. 2 Smt. Usha Prajapati are living together as husband and wife again after the said dispute. Section 397 Cr.P.C. reads as under:- “397. Calling for records to exercise powers of revision: (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order,-recorded or passed and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation - All Magistrates whether Executive or Judicial and whether exercising original or appellate jurisdiction, shall be deemed 4 to be inferior to the Sessions Judge for the purposes of this subsection and of section 398. (2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.” 9. The Apex Court in the case of Gian Singh vs. State of Punjab, (2012) 10 SCC 303 in para-58 has held as under:- “58. The Apex Court in the case of Gian Singh vs. State of Punjab, (2012) 10 SCC 303 in para-58 has held as under:- “58. Where High Court quashes a criminal proceeding having regard to the fact that dispute between the offender and victim has been settled although offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrong doing that seriously endangers and threatens well-being of society and it is not safe to leave the crime-doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without permission of the Court. In respect of serious offences like murder, rape, dacoity, etc. or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between offender and victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to victim and the offender and victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or F.I.R. if it is satisfied that on the face of such settlement, there is hardly any likelihood of offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard-and-fast category can be prescribed.” 10. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard-and-fast category can be prescribed.” 10. Further in para-61 of the judgment in the case of Gian Singh (supra), the Apex Court has further held that where the parties have entered into compromise particularly in the matters predominantly of civil nature, matrimonial relating to dowry and family dispute etc. which are of private and personal nature, the High Court may quash the proceedings in such matters. Para 61 of the said judgment is extracted herein-below: “61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz. (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R. may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, 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 questions is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.” 11. Further, in the case of Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Others vs. State of Gujarat and Another, (2017) 9 SCC 641 , the Apex Court has laid down the category of cases in which the offences can be compounded, the said guidelines are extracted herein-below: “16. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions: (16.1) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court. (16.2) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. (16.2) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable. (16.3) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power. (16.4) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised: (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court. (16.5) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated. (16.6) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences. (16.7) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned. (16.7) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned. (16.8) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute. (16.9) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice. (16.10) There is yet an exception to the principle set out in propositions 16.8 and 16.9. above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.” 12. In the case of Bitan Sengupta and Another vs. State of West Bengal and Another, (2018) 18 SCC 366, the Apex Court has held that even after dismissal of the revision by the High Court, by which, the judgment of the Sessions Court was concurred, the parties had entered into compromise and had settled the matter and they had decided the keep harmony between them to enable them to live with peace and love and by following the spirit of the law laid down in the case of B.S. Joshi vs. State of Haryana, (2003) 4 SCC 675 , the Apex Court set aside the order of conviction against the accused persons. 13. In the present case, the situation as was in the case of Bitan Sengupta (supra) is even better. In the said case, the parties had entered into a compromise by way of getting themselves separated and they had acted upon the said settlement and took mutual divorce on that basis but in the present case, the parties have entered into a settlement which was acted upon in two cases filed before the Family Court and the revisionist no. In the said case, the parties had entered into a compromise by way of getting themselves separated and they had acted upon the said settlement and took mutual divorce on that basis but in the present case, the parties have entered into a settlement which was acted upon in two cases filed before the Family Court and the revisionist no. 1 and the opposite party no. 2 have decided to live together and are living together again as husband and wife. 14. This Court while exercising powers under Section 397 Cr.P.C. is also vested with powers under Section 482 of the Code of Criminal Procedure, 1973. The Court can also exercise its powers ex-debito justitiae to reach to a judgment to secure the ends of justice between the parties. A Bench of Seven Judges of the Apex Court in the case of A.R. Antulay vs. R.S. Nayak, (1988) 2 SCC 602 have pointed out that no man is above the law, but at the same time no man can be denied his rights under the constitutions and the laws, and no man should suffer a wrong by technical and procedure irregularities. It was observed referring to the judgment of Montreal Street Railway Company vs. Normadin, 1917 AC 170 as follows: “All rules of court are nothing but provisions intended to secure proper administration of justice. It is, therefore, essential that they should be made to serve and be subordinate to that purpose.” It is further observed in the said judgment referring to the judgment of State of Gujarat vs. Ram Prakash P. Puri, (1969) 3 SCC 156 as follows:- “Procedure has been described to be a handmaid and not a mistress of law, intended to sub-serve and facilitate the cause of justice and not to govern or obstruct it. Like all rules of procedure, this rule demand a construction which would promote this cause.” 15. In the present case, since the husband and wife have arrived at a settlement between them, have got two cases before the Family Court decided on the basis of the said settlement and are living together as husband and wife again, technicalities and hyper technicalities should not come in between to disturb their married life. 16. In the present case, since the husband and wife have arrived at a settlement between them, have got two cases before the Family Court decided on the basis of the said settlement and are living together as husband and wife again, technicalities and hyper technicalities should not come in between to disturb their married life. 16. This Court thus by exercising its powers sets aside the judgment and order of conviction dated 31.08.2005 passed by the Chief Judicial Magistrate, Banda in Criminal Case No. 2383 of 2001 (Smt. Usha Prajapati vs. Constable Vishram Singh and Others) under Sections 498-A, 323, 506 IPC, P.S. Kotwali Nagar, District Banda and the judgment and order dated 01.03.2006 passed by the Additional Sessions Judge, Court No. 4, Banda in Criminal Appeal No. 25 of 2005 (Vishram Singh and Others vs. State of U.P.). The revisionists are acquitted of the charges levelled against them. 17. The revision is thus allowed. 18. Office is directed to return the trial court records to the trial court forthwith. 19. A copy of this judgment be also certified to the concerned District and Sessions Judge for its compliance and necessary action. 20. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad. 21. The computer generated copy of such order shall be self attested by the counsel of the party concerned. 22. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.