Surender Singh Dabas and Others vs State and Others

Suresh Kait, J.

CRL.M.A. 11781/2011 (Exemption)

Allowed subject to all just exceptions.

CRL.M.C. 3316/2011

Learned Counsel for the Petitioner submits that vide FIR No. 152/2009 a case under Sections 498A/406/328/34 Indian Penal Code, 1860 was registered against the Petitioners at P.S. Kanjhawala on the complaint of Respondent No. 2/Ms. Laxmi.

Further submits that vide settlement dated 06.01.2011 the matter has been settled between the parties for a total sum of Rs. 6,00,000/- to be paid by Petitioner No. 1 to Respondent No. 2. Pursuant to the said settlement, the marriage between Petitioner No. 1 and Respondent No. 2 has already been dissolved vide decree of mutual consent divorce dated 16.09.2011.

Respondent No. 2 is personally present in the court. She has been duly identified by the IO of the case. She submits that in pursuance of the settlement arrived at between the parties, she does not want to pursue the case further. She has no objection if the FIR is quashed.

Petitioner No. 1 who is personally present in the court today submits that he has brought a pay order of remaining amount for a sum of Rs. 2 Lacs vide pay order No. 409009 dated 07.09.2011, drawn on the Delhi State Co-operative Bank Ltd. MCO Karala, Delhi in favour of Respondent No. 2/Ms. Laxmi. The Petitioner No. 1 has handed over the said pay order to Respondent No. 2. She has accepted the same without any protest.

Learned APP for State submits that Section 328 of Indian Penal Code, 1860 is not compoundable and therefore, the FIR cannot be quashed.

Learned APP for State further referred the case of Hon''ble Supreme Court in Gian Singh v. State of Punjab and Anr. in SLP (Crl.) No. 8989/2010 wherein the Division Bench of the Supreme Court has referred three earlier decisions viz, B.S. Joshi and Others Vs. State of Haryana and Another, , Nikhil Merchant Vs. Central Bureau of Investigation and Another, & Manoj Sharma v. State and Ors. (2008) 16 SCC 1 to the larger Bench for re-consideration whether the abovesaid three decisions were decided correctly or not. Alternatively, she prayed that in the event, the FIR is quashed, heavy costs should be imposed upon the Petitioners.

The Division Bench of Mumbai High Court in Nari Motiram Hira v. Avinash Balkrishnan and Anr. in Crl.W.P. No. 995/2010 decided on 03.02.2011 has permitted for compounding of the offences of ''non-compoundable'' category as per Section 320 Code of Criminal Procedure even after discussing Gian Singh (supra).

Therefore, I feel that unless and until, the decisions which have been referred above, are set aside or altered, by the larger Bench of the Supreme Court, all the above three decision hold the field and are the binding precedents.

I find force in the submissions made by learned APP for State. Accordingly, I impose Rs. 50,000/- each on Petitioner No. 1 and Petitioner No. 3 to be deposited in favour of - Delhi Child Welfare Fund, Department of Women and Child Development, NCT of Delhi. I further direct to disburse the same in favour of the Principal, Primary School, B Block, Kalkajai, for the utilization of the welfare of children of the school.

In case, the Principal of the school has no such bank account, he/she is directed to get it open within two days from the receipt of this order.

The proof of deposit of cost shall be placed on record.

Crl. M.C. 3316/2011 is disposed of allowed in the above terms.

Dasti