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K.M. Thaker, J.—In this petition u/s 482 of the Code of Criminal Procedure, the petitioners have prayed, inter alia, that:- 6a) Quash and set aside the Criminal Case No. 5199/08 filed against the petitioners in the Court of Chief Judicial Magistrate, Bharuch.
The petitioner has preferred present petition challenging the order dated 25.8.2008 passed by the Chief Judicial Magistrate, Bharuch in criminal inquiry No. 12 of 2008 which is numbered as Criminal Case No. 5198 of 2008 whereby complaint u/s 323, 506 and 498A of the I.P.C. is registered against the petitioners. 2. Heard learned counsel appearing for the contesting parties.
So far as factual aspects are concerned, the petitioners have averred, in the petition that:--
2.1 The petitioner No. 1 is the husband of the complainant, respondent herein. Petitioner No. 2 is father-in-law of the complainant who is 85 years old and petitioner No. 3 is the Mother-in-law of the complainant who is 81 years old. Both the petitioner No. 2 and 3 are residing at Bhind in the state of Madhya Pradesh.
2.2. Petitioner No. 4 is the Brother-in-law of the complainant and No. 5 is wife of the Brother-in-law. Both of them are residing at Gwalior.
2.3 Petitioner No. 6 is also Brother-in-law of the complainant and petitioner No. 7 is Sister-in-Law of the complainant. Both of them are residing at Bhind in the state of Madhya Pradesh.
2.4 Petitioner No. 8 is not related to the petitioners. He is just a neighbor of the petitioner No. 4 and is residing at Gwalior.
2.5 Petitioner No. 1 and the complainant got married on 11/3/07 at Gwalior. After their marriage petitioners No. 1 to 7 went to Bhind. Petitioner No. 1 and the complainant stayed at Bhind for 4 to 5 days and immediately went to Ghaziabad, were the petitioner No. 1 had to resume his duty.
2.6 Since then i.e. since 15/3/07 the petitioner No. 1 and the complainant are residing at Ghaziabad alone and the other petitioners are residing in the state of Madhya Pradesh.
2.7 On 24/11/07 parents of complainant went to Ghaziabad and told the petitioner No. 1 that they shall stay there for couple of days and return to Bharuch. At this juncture petitioner feels it pertinent to bring it to the notice of this Hon''ble Court that till that time there was no dispute between the complainant and petitioner No. 1 or any of the petitioners.
2.8 On 26/11/07 when the petitioner No. 1 was in his office at about 9:30 pm he received a call from the complainant that she is going to Bharuch with her parents and that she is no more interested in staying together with him. Hearing all this from the complainant, the petitioner No. 1 panicked and requested the complainant not to take any such step and stay home until he returns from his office.
2.9 The petitioner No. 1 immediately rushed to his house but the complainant had already left the house with her parents. Upon having entered the house, the petitioner No. 1 realized that the complainant has taken along with her all her cloths, jewelry and stridhan. A hence the petitioner No. 1 went to the Ghaziabad Link road police station, immediately on the next day morning and informed the police that his wife has left his house with her parents and has taken all the jewelry and stridhan along with her....
2.10 The petitioner No. 1 most respectfully states that since then he as well as his family members have made lot of efforts to reconcile the issue but the complainant is not willing to stay with the petitioner No. 1. Hence the petitioner was constrained to file a suit for restitution of conjugal rights in the civil court of Ghaziabad.
2.11 Upon having inquired regarding the return journey of the parties of the complainant from Ghaziabad to Bharuch, it came to the knowledge of the petitioner No. 1 that her parents had booked the complainant''s ticket from Ghaziabad to Bharuch well in advance. The same has also been admitted by the complainant''s brother in his cross examination in Criminal Misc. Application No. 81/08, which was preferred by the complainant seeking maintenance.
2.11 After having gone with her parents, the complainant filled an application u/s. 125 of Cr.P.C. claiming maintenance for the petitioner No. 1. In the said application the Ld. Trial court has awarded Rs. 3000 as monthly maintenance to the complainant.
2.12 Simultaneously, the complainant had also filed a private complaint in the court of Chief Judicial Magistrate, Bharuch u/s. 323, 506 and 498(A) against all the petitioners. The Ld. Trial Court ordered an inquiry u/s. 202 of the Cr.P.C. and after the submission of the report by the investigating office, without taking into consideration, the statements recorded by the investigating officer, passed an order registering the complaint and issuing summons to the petitioners...
In present proceedings, it is necessary to note that present matter involving, a matrimonial dispute, was by order dated 13.9.2011 sent to the Mediation Center of this Court for amicable settlement of the disputes. The learned Mediator in his order dated 4.5.2012 specifically noted that the parties have amicably decided to dissolve their marriage by way of divorce by consent and have resolved their disputes. It is relevant to note that before the learned Mediator the parties placed on record a settlement terms signed by the contesting parties and their learned counsel and having regard to the mutual and amicable settlement, the learned Mediator has observed that the matter is resolved in terms of the said settlement terms.
4.1 The Coordinator of Mediation Centre has placed on record the order by learned Mediator and the settlement.
The relevant paragraphs of the letter dated 7.5.2012 read thus:--
With reference to the subject noted above, I am to state that Your Honour had sent xerox copy of Memo of petition of Jitendrasinh Lakhasinh Bhandoria & 7 v. State of Gujarat & 1 in Special Criminal Application No. 1619 of 2009, with the copy of the order of the Hon''ble Court. The Hon''ble Court (Coram: Hon''ble Mr. Justice M.R. Shah) directed the registry to place the matter before the Mediation Centre, by its order dated 13-09-2011.
The parties appeared before the Mediator Mr. G.D. Acharya at the Gujarat High Court Mediation Centre. The settlement has been arrived at.
The relevant paragraph of the order dated 4.5.2012 passed by the learned Mediator reads thus:--
The captioned matter was referred for Meediation by the Hon''ble Court (Coram: Hon''ble Mr. Justice M.R. Shah) by order dtd. 13/09/2011. Both the parties alongwith their Ld. advocates remained present on various dates. Both the parties have discussed the matter at length and after negotiating on various aspects of the matter, they have amicably decided for divorce and resolve their disputes. Both the parties have taken sufficient time to arrived at the settlement terms. Both the Ld. Advocates have also contributed satisfactorily to arrived at settlement. The terms of settlement of dispute are signed by respective parties, their Ld. Advocates and the Mediator. The Mediation is successful in view of the settlement arrived at between the parties. Therefore, it is humbly requested to submit the said settlement to the Registry of High Court with a request to place the matter before the Hon''ble Court.
The relevant clauses of the settlement terms dated read thus:--
(1) Thus, the parties have decided to finally settle all the disputes on lump sum payment of Rs. 15 lacs (Rupees Fifteen Lacs) plus the payment of arrears of maintenance pending from July-2011 to April-2012 of Rs. 30,000/- (Rupees Thirty Thousand) That the husband i.e. Jitendrasinh Bhadoria (wrongly spelt as Bhandoria) shall deposit an amount of Rs. 10 lacs (Rupees Ten Lacs) with the Registry of High Court of Gujarat, Ahmedabad within Six Months from the date of present settlement and shall pay Rakhi Singh Rs. 5.30 lacs by way of Demand Draft of (Rupees Five Lacs Thirty Thousand) favouring Rakhi singh on the next date of hearing in the honourable High Court. The husband shall not object for withdrawal of Rs. 10 lacs (Rupees Ten Lacs) once the decree of divorce is passed and all the pending cases are withdrawn by the respective parties. Apart from the above settlement amount no maintenance whatsoever will be due & payable in future.
(2) That on deposit of Rs. 10 lacs (Rupees Ten Lacs) by the Husband, the parties agree to file an application for divorce by mutual consent under section- 13(B) of Hindu Marriage Act and the parties also agree to file an application for Waiver of the Six Months period. This should be done immediately after the original receipt of deposited amount of Rs. 10 lacs (Rupees Ten Lacs) is handed over to wife.
(3) That on deposit of Rs. 10 lacs (Rupees Ten Lacs), the parties agree to withdraw all the pending cases filed against each other and the same shall be done after the consent decree of Divorce is obtained by both the parties and the report for the same shall be submitted by the parties before the Honourable High Court. And both the parties shall make a request to quash the complaint i.e. Criminal Case No. 5199/2008 for which S.CRA 1619 of 2009 is fixed by the petitioner before the Honourable High Court, after the decree of divorce is passed and all other pending cases are withdrawn. The details of the cases are as under:
i. Cr. Misc App No. 81/2008 u/s. 125 of Cr.PC before competent court at Bharuch.
ii. Cr. Rev. App No. 35/2009 u/s. 397 of Cr.PC before competent court at Bharuch.
iii. Criminal Misc. App. No. 150 of 2010 u/s. 127 of Cr.PC before competent court at Bharuch.
iv. Criminal Case No. 5199/2008 u/s. 323, 506 & 498A (Pending with competent Court, Bharuch)
v. Case No. 664/2008 u/s. 9 of HMA (Pending with competent court at Ghaziabad)
vi. S.CRA 1619 of 2009 (Pending with Hon''ble Gujarat High Court)
vii. Any other cases not covered above
(4) That the wife shall be permitted to withdraw the amount of Rs. 10 lacs (Rupees Ten Lacs) deposited by the husband on passing the order of quashing by the Honourable High Court.
4.2 It is also submitted that subsequently, divorce decree is passed on 15.7.2013 and accordingly the terms of settlement are fulfilled and it is duly acted upon by both sides. It is also requested by complainant''s learned advocate that the amount deposited by petitioner may be paid to her.
Today, during the hearing before this Court, learned advocate for the petitioners submitted that the dispute between the complainant and the accused persons is purely and personal dispute and does not involve any public law element and also does not have any public law overturns. He also submitted that the dispute is mutually and amicably settled. The learned advocate for the petitioners also submitted that the respondent No. 2-complainant does not want to prosecute the complaint further and has no objection if the proceedings of impugned criminal case is quashed. Learned advocate for the petitioners submitted that merely because the offence is not compoundable, it may not deter or restrain the Court from quashing the complaint if the Court is satisfied that the process of prosecution would be futile in view of the settlement between the parties and would cause hardships to the parties and would also burden on Court''s time, besides the costs and expenses in terms of money.
Learned advocate for the respondent No. 2 has adopted the submission by learned advocate for the petitioners and has also supported the request made by the petitioners. Learned advocate for respondent No. 2 also admitted that the parties to the dispute have arrived at settlement and respondent No. 2 now does not want to prosecute her complaint further and she has no objection if the complaint qua petitioners is quashed. Learned advocate for respondent No. 2 also submitted that the complainant admits the factum of settlement declaring that the dispute is settled and that the settlement has been made voluntarily and without force and/or influence. Learned advocate for respondent No. 2 submitted that respondent has no objection if the proceedings of impugned criminal case is quashed qua petitioners herein.
Learned APP has submitted that if the complainant does not want to prosecute the complaint further qua petitioners then the respondent State has no objection if the relief as prayed for in application is granted.
In view of the said submissions by learned advocates for the petitioners and the respondents, it is appropriate to take into account the observations made in the decisions by the Hon''ble Apex Court in the case of Shiji @ Pappu and Others Vs. Radhika and Another, in the case of Nikhil Merchant Vs. Central Bureau of Investigation and Another, . In the said case of Nikhil Merchant (supra), the Hon''ble Apex Court observed that:
This appeal has been filed against the said order of the High Court rejecting the appellant''s prayer for discharge from the criminal complaint.
Appearing for the appellant, Mr. R. Nariman, learned senior advocate, submitted that the appellant was not the direct beneficiary of the loans which had been granted by the complainant-Bank, but had stood guarantee for the same in his capacity as the Managing Director of the Company to whom such loans had been advanced. Mr. Nariman submitted that while the loans were said to have been advanced to the Company-Accused No. 4 between 1986 and 1989, the suit for recovery of the unpaid dues was filed by the Andhra Bank in 1992 and two years there after the complaint was lodged by the Bank on 19th September, 1994 and the charge-sheet was filed by the CBI four years later on 30th December 1998. Thereafter, the suit filed by the Bank for the recovery of its dues was compromised by a consent decree on 12th October, 2000, and in view of clause 11 of the consent terms, apart from the said suit, all other actions, including the criminal proceedings, also stood compounded. In support of his aforesaid submissions, Mr. Nariman also relied the decision rendered by this Court in the Duncans Agro case (supra) and B. S. Joshi''s case (supra) and submitted that the High Court had erred in coming to a finding that the said two decisions had no application to the case in hand.
It is also relevant to take into consideration the observations by the Hon''ble Apex Court in the case of Madan Mohan Abbot Vs. State of Punjab, wherein, the Hon''ble Apex Court observed that:
We have heard the learned counsel for the parties. Concededly a compromise deed has been executed between the parties on 25th January 2002 in which it has been inter alia recorded as under:
Whereas for the past some time some dispute had arisen in between both the parties regarding which first party has got an FIR No. 155/2001 registered under Sections 379/406/409/418/34 of IPC in P.S. Kotwali Amritsar. After the registration of aforesaid criminal case a compromise has been arrived at in between both the parties. As a result of which both the parties have resolved their differences once for all. Now second party does not owe anything to the first party and first party has undertaken to cooperate with second party in every manner to get the aforesaid FIR cancelled/quashed from appropriate Forum. Furthermore first party has no objection if the bail of second party be accepted. Rather first party shall co-operate with second party in every manner to secure bail for him in view of the compromise arrived at in between the parties entire differences and tensions those had arisen in between both the parties stands resolved and both the parties have undertaken not to file any proceedings either civil or criminal or any other such like proceedings against one another in any court of law at Amritsar or any other place within or outside India. This compromise is hereby executed in between both the parties in the presence of marginal witnesses on this 25th day of January 2002 at Amritsar.
It is on the basis of this compromise that the application was filed in the High Court for quashing of proceedings which has been dismissed by the impugned order We notice from a reading of the FIR and the other documents on record that the dispute was purely a personal one between two contesting parties and that it arose out of extensive business dealings between them and that there was absolutely no public policy involved in the nature of the allegations made against the accused. We are, therefore, of the opinion that no useful purpose would be served in continuing with the proceedings in the light of the compromise and also in the light of the fact that the complainant has, on 11th January 2004, passed away and the possibility of a conviction being recorded has thus to be ruled out. We need to emphasize that it is perhaps advisable that in disputes where the question involved is of a purely personal nature, the Court should ordinarily accept the terms of the compromise even in criminal proceedings as keeping the matter alive with no possibility of a result in favour of the prosecution is a luxury which the Courts, grossly overburdened as they are, cannot afford and that the time so saved can be utilized in deciding more effective and meaningful litigation. This is a common sense approach to the matter based on ground of realities and bereft of the technicalities of the law.
We see from the impugned order that the learned Judge has confused a compounding of an offence with the quashing of proceedings. The outer limit of Rs. 250/- which has led to the dismissal of the application is an irrelevant factor in the later case. We accordingly allow the appeal and in the peculiar facts of the case, direct that FIR No. 155 dated 17th November 2001 P.S. Kotwali, Amritsar and all proceedings connected therewith shall be deemed to be quashed.
Thereafter, recently in the decision in the case of Gian Singh Vs. State of Punjab and Another, wherein the Hon''ble Apex Court observed that:
The question is with regard to the inherent power of the High Court in quashing the criminal proceedings against an offender who has settled his dispute with the victim of the crime but the crime in which he is allegedly involved is not compoundable u/s 320 of the Code.
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 compoudable 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.
B.S. Joshi 1, Nikhil Merchant, Manoj Sharma and Shiji alias Pappu do illustrate the principle that High Court may quash criminal proceedings or FIR or complaint in exercise of its inherent power u/s 482 of the Code and Section 320 does not limit or affect the powers of the High Court u/s 482. Can it be said that by quashing criminal proceedings in B.S. Joshi, Nikhil Merchant, Manoj Sharma and Shiji alias Pappu, this Court has compounded the noncompoundable offences indirectly? We do not think so. There does exist the distinction between compounding of an offence u/s 320 and quashing of a criminal case by the High Court in exercise of inherent power u/s 482. The two powers are distinct and different although ultimate consequence may be same viz., acquittal of the accused or dismissal of indictment.
We find no incongruity in the above principle of law and the decisions of this Court in Simrikhia, Dharampal, Arun Shankar Shukla, Ishwar Singh, Rumi Dhar (Smt.). and Ashok Sadarangani. The principle propounded in Simrikhia 14 that the inherent jurisdiction of the High Court cannot be invoked to override express bar provided in law is by now well settled. In Dharampal 15, the Court observed the same thing that the inherent powers u/s 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code. Similar statement of law is made in Arun Shankar Shukla 16. In Ishwar Singh, the accused was alleged to have committed an offence punishable u/s 307, IPC and with reference to Section 320 of the Code, it was held that the offence punishable u/s 307 IPC was not compoundable offence and there was express bar in Section 320 that no offence shall be compounded if it is not compoundable under the Code. In Rumi Dhar (Smt.) although the accused had paid the entire due amount as per the settlement with the bank in the matter of recovery before the Debts Recovery Tribunal, the accused was being proceeded with for commission of offences u/s 120B/420/467/468/471 of the IPC along with the bank officers who were being prosecuted u/s 13(2) read with 13(1)(d) of Prevention of Corruption Act. The Court refused to quash the charge against the accused by holding that the Court would not quash a case involving a crime against the society when a prima facie case has been made out against the accused for framing the charge. Ashok Sadarangani 34 was again a case where the accused persons were charged of having committed offences under Sections 120B, 465, 467, 468 and 471, IPC and the allegations were that the accused secured the credit facilities by submitting forged property documents as collaterals and utilized such facilities in a dishonest and fraudulent manner by opening letters of credit in respect of foreign supplies of goods, without actually bringing any goods but inducing the bank to negotiate the letters of credit in favour of foreign suppliers and also by misusing the cash-credit facility. The Court was alive to the reference made in one of the present matters and also the decisions in B.S. Joshi, Nikhil Merchant and Manoj Sharma and it was held that B.S. Joshi, and Nikhil Merchant dealt with different factual situation as the dispute involved had overtures of a civil dispute but the case under consideration in Ashok Sadarangani was more on the criminal intent than on a civil aspect. The decision in Ashok Sadarangani supports the view that the criminal matters involving overtures of a civil dispute stand on a different footing.
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 u/s 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 victims 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.
Having regard to the aforesaid submission by learned advocate for the petitioners and respondent and also having regard to the fact that dispute between the parties is purely a personal and private dispute and any Public Law Element is not involved and considering the fact that the complainant has declared that he has voluntarily and without any force or influence settled the dispute with the petitioners and has declared that she does not want to prosecute the complaint qua petitioners herein and applying the principles laid down in the aforesaid decisions to the facts of the present case, it is apparent that in view of the compromise arrived at between the parties, permitting the prosecution to continue, would be an exercise in futility. In the circumstances, the interest of justice would be best served if the proceedings qua the impugned criminal case is quashed qua petitioners herein. This is, therefore, a fit case for exercising powers u/s 482 of the Code to prevent abuse of the process of Court. The proceedings arise out of impugned criminal case qua the petitioners herein is quashed. Having regard to aforesaid aspects, below mentioned order is passed:--
13.1 Present petition is allowed in terms of para 6(a). The proceedings arise out of Criminal Case No. 5199 of 2008 filed against the petitioners in the Court of learned Chief Judicial Magistrate, Bharuch is quashed qua the petitioners herein.
13.2 So far as the amount of Rs. 10 Lacs deposited with the registry of this Court in view of the Settlement of Terms dated 4.5.2012 is concerned, the said amount may be directly paid to the respondent complainant wife, upon due verification of her identity, by way of Electric Fund Transfer and in accordance with the terms of settlement and order by learned Mediator. The amount may be transmitted in her account directly upon her providing necessary details of account number, name of the bank as well as address of the concerned branch.
Present petition is allowed. Rule is made absolute to the aforesaid extent. No costs.
Direct service is permitted.