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Vishal Nanda Vs. State of Himachal Pradesh and Another - Court Judgment

LegalCrystal Citation
CourtHimachal Pradesh High Court
Decided On
Case NumberCr.M.M.O No. 38 of 2013
Judge
AppellantVishal Nanda
RespondentState of Himachal Pradesh and Another
Excerpt:
.....settlements of matrimonial disputes. their lordships have further held that section 320 of the code of criminal procedure would not be a bar to the exercise of power of quashing under section 482 of the code of criminal procedure. their lordships have held as under: œ8. it is, thus, clear that madhu limaye's case does not lay down any general proposition limiting power of quashing the criminal proceedings or fir or complaint as vested in section 482 of the code of extra ordinary power under article 226 of the constitution of india. we are, therefore, of the view that if for the purpose of securing the ends of justice, quashing of fir becomes necessary, section 320 would not be a bar to the exercise of power of quashing. it is, however, a different matter depending upon the.....
Judgment:

Rajiv Sharma, J.

1. This petition under section 482 of the Code of Criminal Procedure has been filed for quashing FIR No. 297/2010 dated 18.12.2010 and also for quashing proceedings in case No. 186/2/11, titled State Vs. Jawahar Lal Nanda and others pending in the court of Judicial Magistrate 1st Class (Court No.1), Kasauli, District Solan.

2. œKey facts? necessary for the adjudication of this petition are that marriage between petitioner and respondent No.2 was solemnized according to Hindu rites and custom on 29.11.2002. Respondent No.2 initially resided with petitioner in the house of his father at Panchkula (Haryana). A son was born out of the wedlock. Relations between petitioner and respondent No.2 became strained after few years. Father of the petitioner Sh. Jawahar Lal Nanda told petitioner to make separate arrangement for himself and his wife, i.e. respondent No.2. Respondent No.2 filed an FIR No.297/2010 dated 18.12.2010 under section 498-A, 506 read with section 34 of the Indian Penal Code against the petitioner and his family members. A compromise was arrived at between the parties on 9.1.2011 vide Annexure P-2. According to the terms enumerated in the compromise, jewelry of respondent No.2, which was lying in the locker of the father of petitioner, was to be returned to her, sum of Rs. 40 lakhs was to be paid to respondent No.2 and her minor son. The custody of the minor son was to be retained by respondent No.2. Mutual divorce was to be obtained by the petitioner and respondent No.2. A sum of Rs. 20 lakhs was paid to respondent No.2 by way of bankers cheque No. 819545 dated 19.2.2011 drawn on State of Bank of India and a sum of Rs. 10 lakhs each was paid in favour of minor son of respondent No.2, Master Arjun Nanda under the guardianship of respondent No.2 vide demand draft No. 793228 dated 19.2.2011 and cheque No. 819547 dated 21.2.2011. The cheques were duly honoured as per Annexure P-4. In terms of compromise, petition under section 13 of the Hindu Marriage Act for dissolution of marriage by a decree of divorce, which was registered as H.M. Petition No. 2-S 3 of 2011, was filed by respondent No.2. Decree of dissolution of marriage was passed by the District Judge, Solan on 29.10.2011. Respondent No.2 had also moved an application before the Deputy Commissioner, Solan for compounding offence under section 498-A of the Indian Penal Code. According to the terms of compromise and dissolution of marriage vide Annexure P-5, it would be futile in case proceedings in case No.186/2/11 are continued. It is in these circumstances, present petition has been filed for quashing of FIR No. 297/2010 dated 18.12.2010 and subsequent proceedings consequent to said FIR pending in the Court of Judicial Magistrate 1st Class, Court No.1, Kasauli, District Solan in case No. 186/2/11.

3. Respondent No.2 has filed detailed reply. According to the reply filed by respondent No.2, FIR was registered against the petitioner on 18.12.2010. He absconded and did not appear before the police for interrogation. Ultimately, challan was prepared and presented before the Chief Judicial Magistrate, Solan on 27.10.2011. It was assigned to Judicial Magistrate 1st Class, Solan. It is further averred that S.P.A. of petitioner was not competent to maintain the petition. It is stated on merits that in the month of January, 2011 parents of petitioner had disowned him from their movable and immovable property through a public notice published in the daily newspaper Amar Ujala vide Annexure R-1. She had been physically and mentally tortured by the petitioner. He wanted divorce from respondent No.2 and marry a girl of his choice. It is further stated that compromise Annexure P-2 was arrived at between father of petitioner and father of respondent alone. She was not party to the compromise and she has never consented to the terms and conditions and acted on the advice of her father Kamal Anand. According to her, amount of Rs. 40 lakh is absolutely insufficient for her and her minor son. She was forced to leave matrimonial house. Petitioner has remarried and settled in his life and her life has been ruined.

4. Typed version of agreement dated 9.1.2011 has been placed on record by the petitioner vide Annexure P-2/T. This agreement has been arrived at between Jawahar Lal Nanda, father of petitioner and Kamal Anand, father of respondent No.2. It was agreed that the jewelry lying in the locker of first party would be returned to the father of respondent No.2. A sum of Rs. 40 lakhs by way of two FDRs, one in the name of Nidhi Nanda and one in the name of Nikhil Nanda (minor) were to be paid by the 1st party as per terms to be settled by the counsel for the parties, namely, Sh. S.K. Pandit and R.K. Garg, Advocates, Solan. Custody of minor was to be retained by the mother respondent No.2. Divorce petition was to be filed as per compromise and divorce would be obtained from the competent court of law in accordance with law. It has been specifically stated in the agreement that all disputes would be settled and would be brought to an end as per mutual decision arrived at between the parties. This agreement was signed by Jawahar Lal Nanda, father of petitioner and Kamal Anand, father of respondent No.2. It was witnessed by Rajinder Singh and Mohinder Singh. It cannot be said that the compromise was not between petitioner and respondent No.2. The compromise was signed by father of respondent No.2 on her behalf. The jewelry as per agreement was to be returned. A sum of Rs. 40 lakhs has been paid to respondent No.2 and to her son. The cheques have been encahsed. The marriage has been dissolved between petitioner and respondent No.2 on the basis of judgment dated 29.10.2011 passed by the District Judge.

5. The terms and conditions of compromise have been duly honoured by the petitioner and his father. Respondent No.2 has also moved an application for compounding of case before the Deputy Commissioner.

6. The Court is of the considered view that in view of compromise arrived at vide Annexure P-2 and dissolution of marriage on 29.10.2011, the continuation of case arising out of FIR No. 297/2010 dated 18.12.2010 registered at Police Station Sadar, Solan would be exercise in futility.

7. Their Lordships of the Honble Supreme Court in B.S. Joshi and others vs. State of Haryana and another, AIR 2003 SC 1388 have held that it is duty of the court to encourage genuine settlements of matrimonial disputes. Their Lordships have further held that section 320 of the Code of Criminal Procedure would not be a bar to the exercise of power of quashing under section 482 of the Code of Criminal Procedure. Their Lordships have held as under:

œ8. It is, thus, clear that Madhu Limaye's case does not lay down any general proposition limiting power of quashing the criminal proceedings or FIR or complaint as vested in section 482 of the Code of extra ordinary power under Article 226 of the Constitution of India. We are, therefore, of the view that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, section 320 would not be a bar to the exercise of power of quashing. It is, however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power.

12. The special features in such matrimonial JT 1988 (1) SC 279; (1988) 1SCC 692 duty of the court to encourage genuine settlements of matrimonial disputes.

15. In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and section 320 of the Code does not limit or affect the powers under section 482 of the Code.?

8. Their Lordships of the Honble Supreme Court in Shiji alias Pappu and others vs. Radhika and another, (2010) 10 SCC 705 have held that simply because an offence is not compoundable under section 320 is by itself no reason for High Court to refuse exercise its power under section 482 of the Code of Criminal Procedure. Their Lordships have held as under:

œ17. It is manifest that simply because an offence is not compoundable under Section 320 IPC is by itself no reason for the High Court to refuse exercise of its power under Section 482 Cr.P.C. That power can in our opinion be exercised in cases where there is no chance of recording a conviction against the accused and the entire exercise of a trial is destined to be an exercise in futility. There is a subtle distinction between compounding of offences by the parties before the trial Court or in appeal on one hand and the exercise of power by the High Court to quash the prosecution under Section 482 Cr.P.C. on the other. While a Court trying an accused or hearing an appeal against conviction, may not be competent to permit compounding of an offence based on a settlement arrived at between the parties in cases where the offences are not compoundable under Section 320, the High Court may quash the prosecution even in cases where the offences with which the accused stand charged are non-compoundable. The inherent powers of the High Court under Section 482 Cr.P.C. are not for that purpose controlled by Section 320 Cr.P.C.?

9. Their Lordships of the Honble Supreme Court in Dimpey Gujral and others vs. Union Territory through Administrator, U.T. Chandigarh and others, AIR 2013 SC 518 have held that continuation of proceedings would in circumstances be abuse of process of court when the parties have entered into compromise irrespective that one of offences was non-compoundable.

Their Lordships have held as under:

œ4. The question which now remains to be answered is whether since one of the offences alleged in the FIR is non-compoundable, the FIR could be quashed. In certain decisions of this court in view of the settlement arrived at by the parties, this court quashed the FIRs though some of the offences were non-compoundable. A two Judges' Bench of this court doubted the correctness of those decisions. Learned Judges felt that in those decisions, this court had permitted compounding of non-compoundable offences. The said issue was, therefore, referred to a larger bench. The larger Bench in Gian Singh v. State of Punjab and Anr. in SLP (Cri.) No.8989 of 2010 along with other connected matters, decided on 24/09/2012, considered the relevant provisions of the Code and the judgments of this court and concluded as under:

57. 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. 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 question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.

5. In light of the above observations of this court in Gian Singh, we feel that this is a case where the continuation of criminal proceedings would tantamount to abuse of process of law because the alleged offences are not heinous offences showing extreme depravity nor are they against the society. They are offences of a personal nature and burying them would bring about peace and amity between the two sides. In the circumstances of the case, FIR No.163 dated 26/10/2006 registered under Section 147, 148, 149, 323, 307, 452 and 506 of the IPC at Police Station Sector 3, Chandigarh and all consequential proceedings arising therefrom including the final report presented under Section 173 of the Code and charges framed by the trial court are hereby quashed.?

10. Accordingly, in view of the discussion and analysis made hereinabove, the petition is allowed. FIR No. 297/2010 dated 18.12.2010, registered at Police Station, Sadar, Solan and proceedings in case No. 186/2/11 pending in the court of Judicial Magistrate 1st Class, Court No.1, Kasauli, District Solan arising out of said FIR are quashed and set aside. Pending application(s), if any, also stands disposed of.


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