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Ajay Kumar Maurya And Others vs State Of U.P. Thru. Prin. Secy. … on 4 January, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

?Court No. – 9                                                                                      AFR

Case :- MISC. BENCH No. – 31232 of 2017

Petitioner :- Ajay Kumar Maurya And Others

Respondent :- State Of U.P. Thru. Prin. Secy. Home And Others

Counsel for Petitioner :- Shailendra Kumar Singh

Counsel for Respondent :- Govt. Advocate

Hon’ble Devendra Kumar Upadhyaya,J.

Hon’ble Dinesh Kumar Singh,J.

1.      The present petition has been filed praying for quashing of the F.I.R. dated 22.10.2017 bearing Case Crime No.0604 of 2017, under Sections 498A, 323, 504, 506, 313 I.P.C., Section 3/4 Dowry Prohibition Act and Section 3(1)(x) S.C./S.T. Act and Section 4/6 Indecent Representation of Women(Prohibition) Act, Police Station Indira Nagar, District Lucknow.

2.     Petitioner no.1 and respondent no.3 got married on 18.01.2013 in accordance with Hindu rites and customs. Petitioner no.2 is the father of petitioner no.1.  Petitioner no.4 is the elder brother of petitioner no.1. Petitioner no.3 (Bhabhi of petitioner no.1) is the wife of petitioner no.4. Due to matrimonial dispute between the parties and their inability to live together for several reasons including incompatibility and temperaments etc., petitioner no.1 and respondent no.3 started living separately since 10.07.2015.

3.      It appears that by the intervention of the friends, well wishers and relatives, petitioner no.1 and respondent no.3 decided to get their marriage dissolved by mutual consent as differences were irreconciable. They presented the petition before the competent Court under Section 13 of the Hindu Marriage Act, 1955 for dissolution of their marriage by mutual consent. The Principal Judge Family Court, Lucknow vide order dated 09.12.2017 passed the decree of dissolution of marriage petitioner no.1 and respondent no.3 under Section 13B of the Hindu Marriage Act on the petition filed by the parties.

4.     After dissolution of marriage, petitioner no.1 and respondent no.3 entered into a compromise to put an end to all disputes between the parties including closure of the impugned F.I.R. This compromise was entered into between the parties on 09.12.2017 and it was notarized and signed by witness as well.

5.       In pursuance of the notice, respondent no.3 has filed her affidavit. Paragraphs 38 to 40 of the said affidavit are extracted hereunder:-

“38.  That all the issues pertaining to the said marriage has been peacefully and amicably settled by mutual consent and no issues of whatsoever nature is left between the deponent and the petitioners.

39.   That the deponent willfully wants to withdraw each and every criminal case and proceedings pending against the petitioners on her own sweet will.

40.   That the deponent has no grievances left against the petitioners and did not want to prosecute the petitioners any more or true file any criminal appeal or revision in any court of law against them.”

6.     Today the petitioner no.1 and respondent no.3 are present in the Court. We specifically put the questions to respondent no.3 with respect to the contents of the affidavit and she has in categorical terms said that she does not want to prosecute the petitioners and would like the impugned F.I.R. to be quashed against them as she has settled all her dispute with the petitioners and has no grievance against the petitioners.

7.        The Supreme Court  in the case of Gian Singh versus State of Punjab and another: (2012) 10 SCC 303, para 58 held as under:-

“58. Where the 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 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.”

8.      In para 61 of the aforesaid judgment the  Supreme Court  has further held that where the parties have entered into a compromise particularly in matters predominantly of civil nature, matrimonial relating to dowry and family dispute etc., which are of private or personal nature, the High Court may quash the criminal proceedings in such matters. Para 61 of the aforesaid judgment is extracted hereinbelow:-

“61. 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.” 

9.        Relying on the aforesaid judgment the, Supreme Court  in judgment of Narinder Singh and others versus State of Punjab and Others: (2014) 3 SCC (Crl) 54 has held that if the High Court on prima facie examination of the case finds that if the chances of conviction are remote or bleak then the High Court should quash the criminal proceedings on the basis of settlement between the parties. The Supreme Court in paras 29.1 to 29.7 in the aforesaid judgment has held as under:-

“29.1 Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.

29.2 When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:

(i) ends of justice, or

(ii) to prevent abuse of the process of any Court.

While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.

29.3 Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by Public Servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.

29.4  On the other, those criminal cases having overwhelmingly and pre-dominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.

29.5 While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.

29.6 Offences under  Section 307 IPC would fall in the category of heinous and serious offences and therefore is to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention ofSection 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307  IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the later case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship.

29.7 While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come a conclusion as to whether the offence under  Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under  Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime.”

10.     We find that dispute between the parties was a matrimonial dispute which has got settled amicably and even decree of divorce by mutual consent has been obtained. The complainant herself has filed the affidavit before this Court that she does not want to pursue the criminal case against the petitioners and she would like the F.I.R. to be quashed as the parties have settled their dispute amicably outside the Court.

11.   Considering the stand of the complainant/ respondent no.3, the facts and circumstances of the case and the ratio of aforesaid two judgments of the Supreme Court, we are of the opinion that continuance of the proceedings in pursuance of the impugned F.I.R. bearing Case Crime No.0604 of 2017, under Sections 498A, 323, 504, 506, 313 I.P.C., Section 3/4 Dowry Prohibition Act and Section 3(1)(x) S.C./S.T. Act and Section 4/6 of Indecent Representation of Women(Prohibition) Act would be futile exercise as there is no chance of conviction of the petitioners in the case.

12.   The criminal justice system should not be put in motion to undertake futile exercise. When from the facts and circumstances of the case it is evident that the criminal proceedings in pursuance of an FIR would be a futile exercise inasmuch as chances of conviction of the accused are remote or bleak in view of the stand of the complainant, the High court should quash the FIR keeping in mind nature of the offence alleged, stand of the complainant and character of the accused.

13.     Considering the factum of compromise between the parties and the nature of offence as well as the stand of respondent no.3 before this Court when she was present and in her affidavit, we hereby quash the impugned F.I.R.

12.   The writ petition is allowed.

Order Date :- 4.1.2018

prateek

 

 

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