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Allahabad High Court · body

2022 DIGILAW 36 (ALL)

Nitin Garg v. State of U. P.

2022-01-06

SANJAY KUMAR PACHORI

body2022
JUDGMENT : 1. Heard Sri Varun Dev Sharma, learned counsel for the applicant, Sri Tapan Kumar Mishra, learned counsel for the opposite party no. 2, and Sri Manoj Kumar Dwivedi learned A.G.A. for the State, and perused the material on record. 2. The present application under section 482 of the Code of Criminal Procedure (in short "the Code") has been filed for quashing the impugned charge-sheet No. 43 of 2017 dated 18.10.2017 arising out of case crime no. 22 of 2017 under sections 498-A, 323, 506 of Indian Penal Code (hereinafter referred as "IPC") registered at Police Station-Mahila Thana, District Meerut and stay the further proceedings of Criminal Case No. 5204 of 2017 (State v. Nitin Garg) pending in the court of Special Chief Judicial Magistrate, Meerut. 3. First Information Report ("FIR") has been lodged by the opposite party no. 2 as case Crime No. 22 of 2017 under Sections 323, 506, 307, 354 of IPC on 2.5.2017 at Police Station-Mahila Thana, District Meerut against the applicant aged about 39 years (husband), Satish Chand Gupta (father-in-law) and Saurabh (brother-in-law/Jeth). 4. Brief facts of the case are that First Information Report dated 2.5.2017 by the opp. party no. 2/victim stating therein that the marriage of the victim was solemnized with the applicant on 3.12.2003 according to Hindu rites and rituals at Meerut and her father spent more than his capacity. After the marriage, the applicant used to commit marpeet with her, after consuming excess liquor but she tolerated the behaviour of her husband for the future of her son and complained to her brother-in-law (Jeth) and father-in-law. On such a complaint, her father-in-law stated that the applicant is not physically fit. Prior to two years of lodging the FIR, father-in-law of the victim entered her room started molesting her and attempted to commit rape with her. After this incident, the victim left this house and shifted to another house of the applicant. On 25.4.2017, co-accused Saurabh came and caught hold of her forcibly and attempted to commit rape. Anyhow she escaped herself. On her information, her father came on 29.4.2017 from Darjeeling and they threatened to dissolve the marriage after taking Rs. 2 crores otherwise she would not be left alive. Earlier, her husband two times attempted to commit murder by strangulation of her neck. 5. Anyhow she escaped herself. On her information, her father came on 29.4.2017 from Darjeeling and they threatened to dissolve the marriage after taking Rs. 2 crores otherwise she would not be left alive. Earlier, her husband two times attempted to commit murder by strangulation of her neck. 5. After completing the investigation, on 18.10.2017, a charge-sheet has been submitted in the aforesaid case against the applicant under Sections 498-A, 323, 506 of IPC and Special Chief Judicial Magistrate, Meerut took cognizance on 7.11.2017 under Sections 498-A, 323, 506 of IPC. 6. Learned counsel for the applicant as well as learned counsel for the opp. party no. 2 have jointly submitted that the parties have settled their matrimonial dispute before Supreme Court Mediation Centre on 16.11.2018 wherein the opposite party no. 2 has expressed her opinion that she does not wish to pursue the present case any further. Copy of aforesaid settlement has been annexed as Annexure SA.-1 to the Supplementary Affidavit. Both the parties have agreed in the aforesaid settlement that they will make joint request before the Court to dispose of/quash the following cases: (a) HMA No. 1950 of 2016 pending before the Family Court, Meerut (Nitin Garg v. Navita Garg) (b) Case arising out of CR No. 22 of 217 pending before CJM, Meerut (Mahila Thana) (c) Complaint case No. 48 of 2018 pending before the CJM, Kalimpong. (d) Case arising out of GR Case No. 297 of 2017 from FIR No. 231 of 2017 pending before CJM, Kalimpong. 7. Learned counsel for both the parties further submitted that in pursuance of aforesaid settlement, out of four cases, three cases have been disposed of. The relevant copies of the orders have been filed as Annexure SA-2, SA-3, and SA-4 to the Supplementary Affidavit. Both the parties have agreed, voluntarily and of their own free will to settle their matrimonial dispute on the terms and conditions mentioned in the settlement dated 16.11.2018, and a decree under Section 13-B of the Hindu Marriage Act, 1955 has been passed between the parties on 20.2.2021 by the Principal Family Court, Meerut. 8. The fact of settlement has been confirmed and admitted by learned counsel for both the parties and they have jointly submitted that in the interest of justice the proceedings of the criminal case be quashed in the light of the aforesaid settlement. 8. The fact of settlement has been confirmed and admitted by learned counsel for both the parties and they have jointly submitted that in the interest of justice the proceedings of the criminal case be quashed in the light of the aforesaid settlement. It is relevant to mention here that the opp. party no. 2 has admitted the fact of settlement in her affidavits which have been filed in support of urgency application, moved for early disposal of the present case. 9. To appreciate the submission of the applicant it will be worthwhile to refer some decision of the Supreme Court with regard to scope and power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 320 of the Code. 10. A three-Judge Bench of the Supreme Court, after considering the reference, whether non-compoundable offence be permitted to be compounded by the court directly or indirectly, in Gian Singh v. State of Punjab & Anr., (2012) 10 SCC 303 , has observed as under: (SCC, p. 340-41, para 56, 57 & 58) "56. It needs no emphasis that exercise of inherent power by the High Court would entirely depend on the facts and circumstances of each case. It is neither permissible nor proper for the court to provide a straitjacket formula regulating the exercise of inherent powers under Section 482. No precise and inflexible guidelines can also be provided. 57. Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment. 58. 58. Where the High Court quashes a criminal proceeding having regard to the fact that the dispute between the offender and the victim has been settled although the 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 wrongdoing that seriously endangers and threatens the well-being of the 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 the 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 the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between the offender and the 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 the victim and the offender and the 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 FIR if it is satisfied that on the face of such settlement, there is hardly any likelihood of the 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." 11. In Parbathbhai Aahir @ Parbatbhai Bhimsinghbhai Karmur & Ors. 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." 11. In Parbathbhai Aahir @ Parbatbhai Bhimsinghbhai Karmur & Ors. v. State of Gujarat & Anr., (2017) 9 SCC 641 , (3 Judge) after referring the various judgments of the Supreme Court summarized the broad principles relating to the scope of inherent jurisdiction under Section 482 of the Code as under; (SCC, p. 653, para 16) "16. The broad principles which emerges 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. 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 poser 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. 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 or 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 insofar 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 case oppression and prejudice; and 16.10. There is yet an exception to the principle set out in propositions 16.8. and 16.9. above. Economic offence 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. Thus, it is a settled position of law that when the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure: (i) ends of justice, or (ii) to prevent abuse of the process of any court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives. Such a power is not to be exercised in heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. 13. The instant case, as the allegations made in the FIR as well as the settlement would demonstrate, there is a matrimonial dispute between the parties; there is no allegation with regard to demand of dowry; both the parties have settled their matrimonial disputes amicably before the Supreme Court Medication Centre; both the parties mutually divorced under Section 13-B of the Hindu Marriage Act, 1955 on 20.2.2021 and other criminal cases which were pending between the parties are also disposed of in pursuance of the settlement dated 16.11.2018. 14. In view of the above facts including the settlement between the parties, and keeping in mind the position of law, I am of the considered opinion that cognizance order dated 7.11.2017 is liable to be quashed. 15. In conclusion, charge-sheet No. 43 of 2017 dated 18.10.2017 as well as cognizance order dated 7.11.2017 passed by the Special Chief Judicial Magistrate, Meerut, in Criminal Case No. 5204 of 2017 (arising out of Case Crime no. 22 of 2017 under sections 498-A, 323, 506 of IPC registered at Police Station -Mahila Thana, District Meerut), pending for trial in the court of Special Chief Judicial Magistrate, Meerut is, hereby, quashed. The present application stands allowed accordingly. 16. A copy of this order be transmitted to the trial court for information.