498A quash after conviction with Mutual

Mumbai High Court
Kiran Tulshiram Ingale vs Anupama P. Gaikwad And Ors. on 25/7/2006

JUDGMENT

D.G. Deshpande, J.

1. Heard advocates for the petitioner and Respondent No. 1. Petitioner
is the husband and Respondent No. 1 is the wife. A case was instituted
against the petitioner under Section 498A of the Indian Penal Code. He
came to be convicted by the trial Court. The matter went in appeal.
Before the appellate Court, the matter was settled between the parties.
The petitioner and respondent No. 1 obtained divorce by mutvial
consent. Respondent No. 1 agreed not to press for the petitioners
conviction. The appellate Court maintained the conviction of the
petitioner and gave him benefit of provisions of Probation of
Offenders’ Act.

2. Firstly the petitioner has filed Criminal Revision Application No.
255 of 2004 against the order of the Sessions Judge because no appeal
was maintainable. When this Revision Application came up before learned
single Judge, Justice Khanwilkar passed an order referring the Revision
Application to a larger Bench.

3. Thereafter, apprehending that the Judges deciding the reference, may
raise an objection that there is no application under Section 482.
Therefore, the petitioner filed an application being Criminal
Application No. 4079 of 2005 in the Criminal Appellate Jurisdiction of
this Court and, the prayers therein were, for setting aside the
judgment dated 3rd March, 2004 passed by the 3rd Extra Joint District
Judge and Additional Sessions Judge, Pune in Criminal Appeal No. 125 of
2001 and for quashing and setting aside C.R. No. 128 registered at
Swargate Police Station under Section 482 of the Criminal Procedure
Code. This Criminal Application appears to have been filed on 27th
June, 2005.

4. At or about the same time, i.e. on 25th July, 2005, in anticipation
that if the Division Bench or the Bench to which the reference is made
comes to the conclusion that this cannot be done in Criminal
Application, the petitioner has filed this petition, being Writ
Petition No. 1738 of 2005 challenging the constitutional validity of
Section 320(9) of the Cr.P.C. By this writ petition the petitioner
prayed for a declaration that the provisions of Section 320(9) of the
Code of Criminal Procedure are unconstitutional to the extent the same
do not permit compounding of offence under Section 498-A of the Indian
Penal Code and, second prayer was that the petitioner may be permitted
to compound the conviction recorded by the Additional Sessions Judge.
Pune in Criminal Appeal No. 125 of 2001.

5. We had given number of opportunities to the advocate for Respondent
No. 1 to keep Respondent No. 1 present. But he failed to do so.
Ultimately, the matter was heard by us.

6. The petitioner has annexed copy of the judgment of the JMFC, Pune by
which the petitioner was convicted and sentenced to suffer R.I. for
three years and also to pay fine of Rs. 5,000/ and 1/d. to suffer
further R. I. for three months. He has also annexed copy of the
judgment given by the Mrd Extra Joint District Judge, Pune in Criminal
Appeal No. 125/2001 filed by the petitioner against his conviction. In
this judgment, the appellate Court had recorded reasons in para 3 and
it is stated as under:

It must be mentioned here that, today all the concerned parties are
present before the Court, stating that the matter has been amicably
settled between the husband appellant and wife complainant viz.
accused No. 1 Kiran T. Ingale and complainant Smt. Anupama Kiran
Ingale. They even have submitted their settlement before the Court,
as per Exhibits 7 and 8. The offence being non-compoundable can not
be compounded. However, certainly taking into consideration the
circumstances of this case, benefit of probation Under Section 4(1)
of the Probation of Offenders’ Act can be made available to the
appellant’accused No. 1 who Is admittedly first offender and
entitled for such benefit.

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Consequently, the conviction was confirmed but the sentence was
converted to a Bond of Rs. 5,000/- as provided by the Probation of
Offenders’ Act of 1958.

7. The judgment of the trial Court is dated 16th August, 2001 and the
Judgment of the appellate Court is 3rd March, 2004. In between, it is
clear from the record and as pointed out by the advocate for the
petitioner that the parties had moved to the Family Court No. 4, Pune
by filing petition vide P. A. No. 281 of 2000 for divorce under Section
13B of the Hindu Marriage Act. Though that petition was initially filed
by the wife for divorce on the ground of cruelty, during pendency, both
parties decided to dissolve the marriage by mutual consent and,
therefore, the family Court, Pune, after being satisfied that the
parties have satisfied the condition under Section 13B of the Hindu
Marriage Act and since there is no legal bar, granted a decree of
divorce in their favour. Consequently, by judgment dated 8 4-2002 the
family Court, Pune dissolved the marriage by decree of divorce by
mutual consent under Section 13B of the Hindu Marriage Act, 1955.

8. It will be therefore, clear and as pointed out by the advocate for
the petitioner, that firstly there was conviction by the Magistrate,
then there was a petition for divorce and in that petition consent
decree was obtained; then appeal was heard by the Sessions Court and
the Sessions Judge took note of intervening development and converted
the conviction into a Bond under the Probation of Offenders Act, 1958.

9. In this background, the advocate for the petitioner contended that
the criminal case should have been quashed by the Sessions Judge, but
admittedly, the Sessions Judge had no power to do so, nor any power to
compound the offence and, therefore, he has moved this Court. He prayed
that either the criminal case be quashed or offence under Section 498A
of the Indian Penal Code be allowed to be compounded.

10. Justice Khanwilkar in the Criminal Revision, arising out of the
conviction of petitioner, as referred to above, did not agree with the
view of the single Judge taken in the case of State of Maharashtra v.
Madhu Bhisham Bhatia and Ors. reported in 2004 All MR (Crl) 1849 : 2004
Cri LJ 5072. According to Justice Khanwilkar, the single Judge misread
the judgment of the Apex Court In B.S. Joshi’s Case and, therefore, he
thought it fit to refer the Issue to the Division Bench. He framed
following two Issues:

(1) The decision of the Apex Court, in B.S. Joshi’s case is not an
authority to hold that offence under Section 498A of the Indian
Penal Code is a compoundable offence, which can be compounded with
the permission of the Court.

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(2) Whether it is open for the High Court to quash the criminal
action in exercise of Inherent powers even in a case which has ended
with an order of conviction after trial.

11. In our opinion, the main issue before the Supreme Court was,
whether to allow the matrimonial disputes to continue indefinitely
causing hardship to both the parties; or whether in case parties come
to a settlement, that settlement should be given approval and sanctity.
In para 2 of B.S. Joshi’s Case AIR 2003 SC 1386 the Supreme Court
observed as under:

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 498A and 406, IPC not only
against the husband but his other family members also. When such
matters are resolved either by 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 of the First Information Report or complaint
filed by the wife under Sections 498A and 406, IPC can the prayer be
declined on the ground that since the offences are non-com-poundable
under Section 320 of the Code and, therefore, it is not permissible
for the Court to quash the criminal proceedings or FIR or complaint.

Thereafter the Supreme Court considered 7 Judgments upon which the
parties relied and then, after considering its own Judgment in G.V. Rao
v. L.H.V. Prasad , and found that the observations
made in that Judgment were apt and which were reproduced, are as under:

It was said that there has been an outburst of matrimonial disputes
in recent times. Marriage is a sacred ceremony, the main purpose of
which is to enable the young couple to settle down in life and live
peacefully. But little matrimonial skirmishes suddenly extend which
often assume serious proportions resulting in commission of heinous
crimes in which elders of the family are also involved with the
result that those who could have counselled and brought about
re-approachment are rendered helpless on their being arrayed as
accused in the criminal case. There are many other reasons which
need not be mentioned here for not encouraging matrimonial
litigation so that the parties may ponder over their defaults and
terminate their disputes amicably by mutual agreement instead of
fighting it out in a Court of law where it takes years and years to
conclude and in that process the parties lose their “young” days in
chasing their “cases” in different Courts.

Then para 14 the Supreme Court observed as:

The hyper-technical view would be counter productive 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 XXA of Indian Penal Code.

These observations of the Supreme Court are very broad. In para 2,
reproduced above by us, the Issue before the Supreme Court was, for
quashing of criminal proceedings or FIR or complaint.

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12. The single Judge felt that the powers of quashing cannot be
exercised if the criminal proceedings have resulted in conviction, as
in the present case. We are not in agreement with these observations.
If the prime object of the Judgment of Supreme Court in B.S. Joshi’s
case is to allow the parties to settle their matrimonial disputes
either way, then conviction, in our opinion, cannot and should not come
in the way. It is a fact on record that the trial Court convicted the
accused. The parties thereafter mutually obtained divorce. This fact
was taken into consideration by the learned Sessions Judge. But he
expressed his inability to compound the offence under Section 498A of
the Indian Penal Code because he had no powers to do so. He further
granted benefit of Probation of Offenders Act to the petitioner.

13. Therefore, it is clear that firstly in this case the parties have
compromised even after conviction and, the object of compromise to live
happily, peacefully though separately after divorce. The Sessions Court
has taken cognizance of this compromise and has reduced the conviction
and altered it to a bond under the Probation of Offenders Act.
Secondly, conviction by the first Court is not end of the matter and
appeal therefrom is continuation of proceeding and if a revision is
filed, in case conviction is maintained, altered, reduced, then the
High Court in revision does get power to pass effective orders in
consonance with the judgment of the Supreme Court. Conviction does not
attain finality if the appeal is filed and, If the revision is filed
against conviction by appellate Court, there also all issues become
opened before the High Court.

14. Since the Supreme Court had approached this issue with a broader
perspective and the Issue was whether it is permissible to quash
criminal proceedings (Stress Added, or complaint or FIR and in our
opinion, even the criminal proceedings can be quashed irrespective of
whether there is conviction or otherwise. We, therefore, answer both
the Issues as under:

Ans. to Issue No. 1 :- The decision of the Supreme Court gives
powers to the High Court to permit compounding of matrimonial
offences and the High Court has powers to quash the criminal
proceedings or FIR or complaint.

Ans. to Issue No. 2 : Even in case of conviction, inherent powers
can be exercised and criminal proceedings can be quashed.

15. In view of the aforesaid decision of the Supreme Court, we hold
that the High Court, by exercising inherent powers, can quash criminal
proceedings or FIR or complaint and Section 320 of the Code does not
limit or affect the powers of the High Court under Section 482 of the
Criminal procedure Code. In view of this clear judgment of the Supreme
Court we pass the following order:-

ORDER:

Reference stands answered accordingly.

The criminal proceedings against the petitioner so also his conviction by both the Courts below is hereby quashed in view of the mutual understanding, divorce and compromise between the husband and wife.

All the matters, therefore, stand disposed of accordingly.

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