Smt. Shibi Devi And Others vs State Of Uttarakhand And Another

Sharad Kumar Sharma, J.

The present C-482 Application is listed today on Compounding Application No. 10933 of 2018, filed by the parties to the C-482 Application, duly signed by all of them and verified by their respective counsel. Even the parties are present in person duly identified by their respective counsel. By virtue of the Compounding Application, preferred under 320 of the Cr.P.C., contents of which is admitted by them, the parties have settled the offences punishable under Sections 498-A, 323 I.P.C. and ¾ Dowry Prohibition Act, which was lodged by respondent No. 2 by way of F.I.R. No. 6 of 2015 dated 14th May, 2015, registered at Police Station Kotwali Pauri Garhwal. Rather it could also in nutshell be said that offence sought to be compounded is of a private nature.

As a matter of fact, there have been family discords amongst themselves. Respondent No. 2, who is married with applicant No. 3, had initially, even prior to the marriage on 17th August, 2013, had settled terms to be adhered to by the applicant No. 3 after soleminization of the marriage and, as a consequence thereto, by the terms of settlement dated 17th August, 2013, they got married on 3rd September, 2013, which was ultimately registered before the Registrar of Marriage and certificate in that regard was issued in their favour on 03.09.2013 (Annexure No.2). However, ultimately, the family dispute which arose amongst themselves was settled before the National Lok Adalat on 9th December, 2017 in a Matrimonial Case No. 65 of 2016 and, as a consequence of the settlement arrived at on 9th December, 2017. Settlement before the National Lok Adalat dated 9th December, 2017 is quoted hereunder :-

"jk'Vªh; yksd vnkyrA

09.12.2017

i=koyh vkt jk'Vªh; yksd vnkyr esa is"k gq;hA okn iqdkjk x;kA oknh fou; dqekj e; fo}ku vf/koDrk Jh dey cejkM+k ,ao izfrokfnuh dfork nsoh O;fDrxr :Ik ls mifLFkr gSA

oknh }kjk izkFkZuk i= 43 x bl vk"k; dk izLrqr fd;k x;k gS fd i{kdkjksa dk vkil esa le>kSrk gks x;k gS rFkk i{kdkj crkSj ifr&iRuh lkFk&lkFk jg jgs gS rFkk oknh vius okn dks vkxs ugh pykuk pkgrk gS] vr% ekeys dks vkt jk'Vªh; yksd vnkyr esa fuLrkfjr dj fn;k tk,A izfrokfnuh }kjk izkFkZuk i= 43 x ij bl vk"k; dk i`'Bkadu fd;k x;k gS fd og vius ifr ds lkFk jg jgh gSA

i{kdkjksa ds e/; le>kSrk gks x;k gS rFkk og lkFk&lkFk jg jgs gS rFkk oknh vius okn ij cy ughs nsuk pkgrk gS] ,sls esa oknh dk okn vUrxZr /kkjk 13 fgUnq fookg vf/kfu;e i{kdkjksa ds lkFk&lkFk jgus ,ao oknh }kjk okn ij cy u nsus ds vk/kkj ij vkt jk'Vªh; yksd vnkyr esa fuLrkfjr fd;k tkrk gSA

i=koyh nkf[ky nQrj dh tk,A

¼euh'k feJ½

U;k;/kh"k]

Ikfjokfjd U;k;ky;]

ikSM+h x<+okyA"

Both the parties to the marriage, i.e. the applicant No. 3 and respondent No. 2, the complainant, they are residing together and they are discharging their matrimonial duties towards each other. In the settlement, which has been arrived at by virtue of the Compounding Application, in support of which, affidavit has been filed by respondent No.2 and applicant No. 3, they have prayed for that the Criminal Case No. 424 of 2015, State Vs. Vinay Kumar and others, which has been registered against the applicants may be compounded, to which, the complainant, respondent No. 2, has also accepted by virtue of the averment made in para 5 of the Compounding Application, which is quoted hereunder :-

"5. That during the pendency of the present Criminal Misc. Application, the applicant no. 3 and respondent no. 2 entered into a compromise wherein the applicant no. 3 and respondent no. 2 agreed to stay together. The said compromise was executed in the National Lok Adalat in applicant no.3's Matrimonial Case No. 65 of 2013. True and correct copy of the ordersheet dated 09.12.2017 passed in Matrimonial Case No. 65 of 2013 is marked and annexed as Annexure no.1 to this affidavit."

Considering the aforesaid fact that the parties have settled their matrimonial scores amicably, no fruitful purpose would be served to force upon the applicants to undergo the trial entailing time and money, as it would be a futile exercise with no logical conclusion, more particularly, in view of the various judgments rendered by the Hon'ble Apex Court.

The Hon'ble Apex Court in the case of Gian Singh Vs. State of Punjab and another reported in (2012) 10 SCC 303 has held as follows:

"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 Indian Penal Code 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.

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 favour 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."

The Hon'ble Apex Court in the aforesaid case of Gian Singh (Supra) has also dealt with the judgment in the cases of B.S. Joshi and others Vs. State of Haryana and another reported in (2003) 4 SCC 675 and Nikhil Merchant Vs. Central Bureau of Investigation and another reported in (2008) 9 SCC 677.

The Hon'ble Apex Court in the case of B.S. Joshi and others Vs. State of Haryana reported in (2003) 4 SCC 675, has held as follows:

"6. In Pepsi Food Ltd. & Anr. v. Special Judicial Magistrate & Ors. [(1998) 5 SCC 749], this Court with reference to Bhajan Lal's case observed that the guidelines laid therein as to where the court will exercise jurisdiction under Section 482 of the Code could not be inflexible or laying rigid formulae to be followed by the courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. It is well settled that these powers have no limits. Of course, where there is more power, it becomes necessary to exercise utmost care and caution while invoking such powers.

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 or 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.

In State of Karnataka v. L. Muniswamy & Ors. [(1977) 2 SCC 699], considering the scope of inherent power of quashing under Section 482, this Court held that in the exercise of this wholesome power, the High Court is entitled to quash proceedings if it comes to the conclusion that ends of justice so require. It was observed that in a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice and that the ends of justice are higher than the ends of mere law though justice had got to be administered according to laws made by the legislature. This Court said that the compelling necessity for making these observations is that without a proper realization of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction. On facts, it was also noticed that there was no reasonable likelihood of the accused being convicted of the offence. What would happen to the trial of the case where the wife does not support the imputations made in the FIR of the type in question. As earlier noticed, now she has filed an affidavit that the FIR was registered at her instance due to temperamental differences and implied imputations. There may be many reasons for not supporting the imputations. It may be either for the reason that she has resolved disputes with her husband and his other family members and as a result thereof she has again started living with her husband with whom she earlier had differences or she has willingly parted company and is living happily on her own or has married someone else on earlier marriage having been dissolved by divorce on consent of parties or fails to support the prosecution on some other similar grounds. In such eventuality, there would almost be no chance of conviction. Would it then be proper to decline to exercise power of quashing on the ground that it would be permitting the parties to compound non-compoundable offences. Answer clearly has to be in 'negative'. It would, however, be a different matter if the High Court on facts declines the prayer for quashing for any valid reasons including lack of bona fides.

In Madhavrao Jiwajirao Scindia & Ors. v. Sambhajirao Chandrojirao Angre & Ors. [(1988) 1 SCC 692], it was held that while exercising inherent power of quashing under Section 482, it is for the High Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. Where, in the opinion of the Court, chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may, while taking into consideration the special facts of a case, also quash the proceedings.

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."

The Hon'ble Apex Court in the case of Nikhil Merchant (supra) has held as follows:-

"7. In support of the aforesaid contentions made on behalf of the appellant before the High Court, reference was made to the decision of this Court in the case of Central Bureau of Investigation v. Duncans Agro Industries Ltd. (1996) 5 SCC 591 wherein on the basis of facts similar to the facts of this case, this Court had held that even if an offence of cheating is prima facie made out, such offence is a compoundable offence and compromise decrees passed in the suits instituted by the Bank, for all intents and purposes, amount to compounding of the offence of cheating. This Court accordingly, upheld the order of the High Court quashing the criminal complaint after the civil action had been compromised between the parties.

Apart from the said decision, reliance was also placed on another decision of this Court in the case of B.S. Joshi and Ors. v. State of Haryana and Anr (2003) 4 SCC 675 wherein while dealing with the proceedings under Sections 498A and 406 Indian Penal Code involving matrimonial disputes and offences, this Court held that even though the provisions of Section 320 of the Code of Criminal Procedure would not apply to such offences, which are not compoundable it did not limit or affect the powers under Section 482 and the powers conferred on the High Courts and the Supreme Court under Articles 226 and 136 of the Constitution of India. Referring to the decision of this Court in State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 this Court observed that the categories indicated in the said case which warranted exercise of power under Section 482 CrPC were only illustrative and not exhaustive. This Court ultimately held that the High Court in exercise of its inherent powers can quash criminal proceedings or a FIR or complaint and Section 320 CrPC does not limit or affect the power of the High Court under Section 482 of the Code.

After considering the said decision in the light of the submissions made on behalf of the respective parties, the High Court took the view that in the Duncans Agro case (supra) this Court was considering the situation involving Section 420 IPC which was compoundable under Section 320(2) CrPC, while in the instant case, the charge sheet was also under Sections 467, 468, 471-A IPC along with the provisions of the Prevention of Corruption Act, which were non- compoundable. The High Court, therefore, held that neither of the said two cases would have application to the facts of this case and rejected the appellant's prayer for discharge from the criminal cases."

In a judgement as reported in (2014) 15 Supreme Court Cases 235 in GOLD QUEST INTERNATIONAL PRIVATE LIMITED VS. STATE OF TAMIL NADU AND OTHERS, the Hon'ble Apex Court has held as under:

"5. The main ground on which the Division Bench appears to have interfered with the order of the learned Single Judge is that out of 172 claimants, there was no compromise from two persons. However, there was sufficient evidence on record to suggest that the whereabouts of those two persons were not known, nor have they ever challenged the order of learned Single Judge. The Division Bench while accepting the arguments of the State-Respondents have relied on a decision of this Court in Union of India v. Bhajan Lal (AIR 1992 SC 604 : 1992 Supp. (1) SCC 335). The said judgment appears to have been discussed by this Court in B.S. Joshi and Ors. v. State of Haryana and Anr. (2003) 4 SCC 675. Relevant paragraphs of B.S. Joshi's case (supra) are reproduced below:

"2. The question that falls for determination in the instant case is about the ambit of the inherent powers of the High Courts Under Section 482 of the Code of Criminal Procedure (the Code) read with Articles 226 and 227 of the Constitution of India to quash criminal proceedings. The scope and ambit of power Under Section 482 has been examined by this Court in a catena of earlier decisions but in the present case that is required to be considered in relation to matrimonial disputes. The matrimonial disputes of the kind in the present case have been on considerable increase in recent times resulting in filing of complaints by the wife Under Sections 498-A and 406 Indian Penal Code not only against the husband but his other family members also. When such matters are resolved either by the wife agreeing to rejoin the matrimonial home or mutual separation of husband and wife and also mutual settlement of other pending disputes as a result whereof both sides approach the High Court and jointly pray for quashing of the criminal proceedings or the first information report or complaint filed by the wife Under Sections 498-A and 406 Indian Penal Code, can the prayer be declined on the ground that since the offences are non-compoundable Under Section 320 of the Code, therefore, it is not permissible for the court to quash the criminal proceedings or FIR or complaint.

* * *

The High Court has, by the impugned judgment, dismissed the petition filed by the Appellants seeking quashing of the FIR for in view of the High Court the offences Under Sections 498-A and 406 Indian Penal Code are non-compoundable and the inherent powers Under Section 482 of the Code cannot be invoked to bypass the mandatory provision of Section 320 of the Code. For its view, the High Court has referred to and relied upon the decisions of this Court in State of Haryana v. Bhajan Lal: 1992 Suppl. (1) SCC 335], Madhu Limaye v. State of Maharashtra: (1977) 4 SCC 551] and Surendra Nath Mohanty v. State of Orissa: (1999) 5 SCC 238].

* * *

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 to 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.

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.

Subsequent to the case of B.S. Joshi (supra) in Nikhil Merchant v. Central Bureau of Investigation and Anr. (2008) 9 SCC 677, this Court has made the following observations in paragraphs 30 and 31 which are quoted below:

In the instant case, the disputes between the Company and the Bank have been set at rest on the basis of the compromise arrived at by them whereunder the dues of the Bank have been cleared and the Bank does not appear to have any further claim against the Company. What, however, remains is the fact that certain documents were alleged to have been created by the Appellant herein in order to avail of credit facilities beyond the limit to which the Company was entitled. The dispute involved herein has overtones of a civil dispute with certain criminal facets. The question which is required to be answered in this case is whether the power which independently lies with this Court to quash the criminal proceedings pursuant to the compromise arrived at, should at all be exercised?

On an overall view of the facts as indicated hereinabove and keeping in mind the decision of this Court in B.S. Joshi case [(2003) 4 SCC 675], and the compromise arrived at between the Company and the Bank as also Clause 11 of the consent terms filed in the suit filed by the Bank, we are satisfied that this is a fit case where technicality should not be allowed to stand in the way in the quashing of the criminal proceedings, since, in our view, the continuance of the same after the compromise arrived at between the parties would be a futile exercise.

In Gian Singh v. State of Punjab and Anr.: (2012) 10 SCC 303, judgments in B.S. Joshi (supra) and Nikhil Merchant (supra) were considered by a three-Judge Bench of this Court and it has found that the view taken in aforesaid two cases by this Court is correct. Relevant paragraphs of the judgment in Gian Singh (supra) read as follows:

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.

* * *

B.S. Joshi [MANU/SC/0230/2003 : (2003) 4 SCC 675], Nikhil Merchant (2008) 9 SCC 677], Manoj Sharma: (2008) 16 SCC 1 and Shiji: (2011)

10 SCC 705] do illustrate the principle that the High Court may quash criminal proceedings or FIR or complaint in exercise of its inherent power Under Section 482 of the Code and Section 320 does not limit or affect the powers of the High Court Under Section 482. Can it be said that by quashing criminal proceedings in B.S. Joshi, Nikhil Merchant, Manoj Sharma and Shiji this Court has compounded the non-compoundable offences indirectly ? We do not think so. There does exist the distinction between compounding of an offence Under Section 320 and quashing of a criminal case by the High Court in exercise of inherent power Under Section 482. The two powers are distinct and different although the ultimate consequence may be the same viz. acquittal of the accused or dismissal of indictment.

* * *

The position that emerges from the above discussion can be summarized 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 FIR may be exercised where the offender and the 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 a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the 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 predominatingly civil flavour stand on a 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, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the 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 the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceedings.

In view of the principle laid down by this Court in the aforesaid cases, we are of the view in the disputes which are substantially matrimonial in nature, or the civil property disputes with criminal facets, if the parties have entered into settlement, and it has become clear that there are no chances of conviction, there is no illegality in quashing the proceedings Under Section 482 Code of Criminal Procedure read with Article 226 of the Constitution. However, the same would not apply where the nature of offence is very serious like rape, murder, robbery, dacoity, cases under Prevention of Corruption Act, cases under Narcotic Drugs and Psychotropic Substances Act and other similar kind of offences in which punishment of life imprisonment or death can be awarded. After considering the facts and circumstances of the present case, we are of the view that learned Single Judge did not commit any error of law in quashing the FIR after not only the complainant and the Appellant settled their money dispute but also the other alleged sufferers entered into an agreement with the Appellant, and as such, they too settled their claims.

In view of ratio laid by the Hon'ble Apex Court in the judgments cited hereinabove, the Compounding Application filed by the parties will stand allowed. The proceedings of Criminal Case No.424 of 2015 "State Vs. Vinay Kumar" under Sections 498-A, 323 I.P.C. and Section 3/4 of the Dowry Prohibition Act, 1961, presently pending before the Chief Judicial Magistrate, Pauri Garhwal is hereby quashed.

Consequently, this application under Section 482 Cr.P.C. would also stand allowed. There would be no order as to cost.