Ajit Kumar & Ors vs The State Of Bihar & Anr on 10 May, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.38956 of 2011

1. Ajit Kumar, S/o Basudeo Prasad, at present posted as Jharkhand Police at Petul
Mari, P.S. Distt. Dhanbad (Jharkhand)

2. Basudeo Prasad, S/o Late Rameshwar Ram,

3. Purnima Devi, W/o Basudeo Prasad. All resident of village – Hosir, P.O. Hosir,
Police Station – Gomiya, District – Bokaro (Jharkhand)
…. …. Petitioner/s
Versus

1. The State of Bihar

2. Vinita Kumari, w/o Ajit Kumar, D/o Late Uma Shankar Singh, resident of
village – Laraiyapanr (Sadham), P.S. Gomiya, District – Bokaro (Jharkhand).
At present Lally Bagicha, Chandar, P.S. Civil Line, District Gaya (Bihar).

…. …. Opposite Party/s

Appearance :

For the Petitioner/s : Dr. Manoj Kumar, Advocate
Mrs. Sweety Sinha, Advocate
For the State : Mr. Uma Shankar Prasad Singh, APP
For opposite party no.2 : None

CORAM: HONOURABLE JUSTICE SMT. NILU AGRAWAL
ORAL JUDGMENT
Date: 10-05-2017

Heard learned counsel for the petitioners. In spite of

service of notice, opposite party no.2, who is wife of petitioner no.1,

Ajit Kumar, has neither tendered her appearance nor appeared in

Court through her counsel. However, learned A.P.P. for the State

appears.

2. This application under Section 482 of the Code of

Criminal Procedure (hereinafter referred to as the „Cr.P.C.‟) has been

filed for quashing of the order dated 06.12.2010 passed by the learned

Sub-Divisional Judicial Magistrate, Gaya in Complaint Case No. 1921

of 2009 whereby and whereunder cognizance under Section 498A of
Patna High Court Cr.Misc. No.38956 of 2011 dt.10-05-2017

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the Indian Penal Code and Section 4 of the Dowry Prohibition Act has

been taken while issuing summons against these petitioners.

3. The case in short, as lodged by opposite party no.2-

complainant, is that her marriage was solemnized with petitioner no.1,

Ajit Kumar according to Hindu rights at Gaya on 20.07.2004. At the

time of marriage, a number of articles and cash with gold ornaments

were given, but after three months, all the nine accused persons, who

are family members of her husband-petitioner no.1, started torturing

her, demanding Rs. one lac cash. She gave birth to a male child on

19.01.2008. On 29.09.2009 all the petitioners along with other

accused tried to strangulate the complainant, but due to interference of

the co-villagers, she was saved, but she was ousted from the

matrimonial house after snatching everything from her. Although,

there were nine accused persons, but the learned Magistrate has taken

cognizance against these three petitioners, who are husband, father-in-

law and mother-in-law respectively of the complainant.

4. Learned counsel for the petitioners submits that

petitioner no.1, husband of the complainant had submitted before this

Court on 10.12.2013 that he is ready to keep the complainant as wife

with full dignity and honour and in this connection, he refers to an

application filed on 17.11.2011 by the complainant herself before the

Court of the learned Sub-Divisional Judicial Magistrate, Gaya in the
Patna High Court Cr.Misc. No.38956 of 2011 dt.10-05-2017

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aforesaid case stating therein that she undertakes to pay due respect to

her father-in-law and mother-in-law and she will never misbehave

with the elders of matrimonial house, which has been taken note by

the learned Sub-Divisional Judicial Magistrate, Sadar Gaya in its

order-sheet dated 17.11.2011 while granting bail to petitioner no.1. He

submits that opposite party no.2/ complainant-wife has chosen not to

appear before this Court, which indicates that complainant is living

with dignity and honour with the petitioners.

5. Learned A.P.P. for the State has submitted that since

the case arises out of the matrimonial dispute and from the records, it

appears that the parties have amicably settled their dispute, the State

has got no objection, if the order of cognizance is set aside.

6. Having heard the counsel for the petitioners and the

State and perused the record, I find that the offences punishable under

Sections 498-A of the Indian Penal Code and Section 4 of the Dowry

Prohibition Act are non-compoundable in nature. The ambit and scope

of inherent power of the High Court under Section 482 of the Cr.P.C.

in quashing of the criminal proceeding in non-compoundable offences

relating to matrimonial dispute was recently discussed and

adjudicated by a three-Judge Bench of the Hon‟ble Supreme Court in

Jitendra Raghuvanshi Ors. vs. Babita Raghuvanshi Anr.

[(2013) 4 SCC 58].

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7. In that case, the marriage of Jitendra Raghuvanshi

and Babita Raghuvanshi was solemnized on 22.02.2002 as per Hindu

READ  Narendra Singh & Anr vs State Of M.P on 12 April, 2004

rites and rituals. After the marriage, parties were residing together as

husband and wife. On 05.03.2003 an FIR was registered for the

offences punishable under Sections 498-A and 406 read with 34 of the

IPC at the instance of Babita Raghuvanshi owing to the harassment

and torture meted out to her in the matrimonial home by her husband

and his relatives. Another criminal case was also registered against

Jitendra Raghuvanshi in 2011 for the offences punishable under

Sections 498-A and 406 of the IPC and Sections 3 4 of the Dowry

Prohibition Act, 1961. In the year 2012, with the help and intervention

of the family members, friends and well wishers the parties amicably

settled their differences by way of mutual settlement. A compromise

application was filed for dropping of the criminal proceedings in both

the cases instituted at the behest of Babita Raghuvanshi. The

informant Babita Raghuvanshi also filed an affidavit stating that she

did not wish to pursue the criminal proceedings against the accused

persons. However, the trial court rejected the said application. Being

aggrieved, Jitendra Raghuvanshi filed an application before the High

Court invoking its inherent powers under Section 482 of the Code to

quash the criminal proceedings launched against them. The High

Court dismissed the application filed by the accused persons stating
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that the Court has no power to quash the criminal proceedings in

respect of the offences under Section 498-A of the Indian Penal Code.

Aggrieved by the order passed by the High Court, Jitendra

Raghuvanshi filed an appeal before the Supreme Court.

8. The Supreme Court examined the scope and ambit of

powers of the High Court under Section 482 of the Code in quashing

of the criminal proceeding in non-compoundable offences relating to

matrimonial dispute and held in paragraphs No. 15 to 17 as under:-

“15. In our view, it is the duty of the courts to
encourage genuine settlements of matrimonial
disputes, particularly, when the same are on
considerable increase. Even if the offences are
non-compoundable, if they relate to matrimonial
disputes and the court is satisfied that the parties
have settled the same amicably and without any
pressure, we hold that for the purpose of securing
ends of justice, Section 320 of the Code would not
be a bar to the exercise of power of quashing of
FIR, complaint or the subsequent criminal
proceedings.

16. There has been an outburst of matrimonial
disputes in recent times. The institution of
marriage occupies an important place and it has an
important role to play in the society. Therefore,
every effort should be made in the interest of the
individuals in order to enable them to settle down
in life and live peacefully. If the parties ponder
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over their defaults and terminate their disputes
amicably by mutual agreement instead of fighting
it out in a court of law, in order to do complete
justice in the matrimonial matters, the courts
should be less hesitant in exercising its
extraordinary jurisdiction. It is trite to state that
the power under Section 482 should be exercised
sparingly and with circumspection only when the
court is convinced, on the basis of material on
record, that allowing the proceedings to continue
would be an abuse of the process of the court or
that the ends of justice require that the
proceedings ought to be quashed. We also make it
clear that exercise of such power would depend
upon the facts and circumstances of each case and
it has to be exercised in appropriate cases in order
to do real and substantial justice for the
administration of which alone the courts exist. It is
the duty of the courts to encourage genuine
settlements of matrimonial disputes and Section
482
of the Code enables the High Court and
Article 142 of the Constitution enables this Court
to pass such orders.

17. In the light of the above discussion, we
hold that the High Court in exercise of its inherent
powers can quash the criminal proceedings or FIR
or complaint in appropriate cases in order to meet
the ends of justice and Section 320 of the Code
does not limit or affect the powers of the High
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Court under Section 482 of the Code. Under these
circumstances, we set aside the impugned
judgment of the High Court dated 04.07.2012
passed in M.CR.C. No. 2877 of 2012 and quash
the proceedings in Criminal Case No. 4166 of
2011 pending on the file of Judicial Magistrate
Class-I, Indore.”

READ  Sunil Singha-vs-State Of West Bengal on 1 December, 2006

9. An identical issue had arisen earlier before the

Supreme court in B.S. Joshi Ors. vs. State of Haryana Anr.

[(2003) 4 SCC 675]. In that case, the Supreme Court had held that

the inherent powers of the High Court under Section 482 of the Code

are wide and unfettered. It upheld the powers of the High Court under

Section 482 of the Code to quash the criminal proceedings where the

disputes is of private nature and the compromise is entered into

between the parties, who are willing to settle their differences

amicably.

10. In Gian Singh vs. State of Punjab [(2010) 15 SCC

118], a two-Judge Bench of the Supreme Court doubted the

correctness of the decision of the Supreme Court in B.S. Joshi (supra)

and referred the matter to a larger Bench. The question before the

larger Bench was with regard to the inherent power of the High Court

under Section 482 of the Cr.P.C. in quashing of the criminal

proceedings against an offender who has settled his dispute with the

victim of the crime in which he is allegedly involved is not
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compoundable under Section 320 of the Cr.P.C. The question referred

to was lucidly explained by a three-Judge Bench in Gian Singh vs.

State of Punjab [(2012) 10 SCC 303]. The court explained the

difference between 320 and 482 of the Cr.P.C. in the following

manner in paragraphs 57 to 59 as under:-

“57. 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.

xxxx xxxx xxxx

59. B.S. Joshi [(2003) 4 SCC 675], Nikhil
Patna High Court Cr.Misc. No.38956 of 2011 dt.10-05-2017

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Merchant [(2008) 9 SCC 677], Manoj Sharma
[(2008) 16 SCC 1] and Shiji [(2011) 10 SCC
705] do illustrate the principle that 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 ultimate
consequence may be same viz., acquittal of the
accused or dismissal of indictment.”

11. Thereafter, the Court answered the reference made to

it in paragraphs No. 61 to 62 in the following words:-

“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
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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
Patna High Court Cr.Misc. No.38956 of 2011 dt.10-05-2017

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11/13

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
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its jurisdiction to quash the criminal proceeding.

62. In view of the above, it cannot be said that
B.S. Joshi [(2003) 4 SCC 675], Nikhil Merchant
[(2008) 9 SCC 677] and Manoj Sharma [(2008)
16 SCC 1] were not correctly decided. We
answer the reference accordingly. Let these
matters be now listed before the concerned
Bench(es) concerned.”

12. After considering the law laid down by the

Supreme Court in B.S. Joshi (supra), Gian Singh (supra) and

Jitendra Raghuvanshi (supra), it is amply clear that even if the

offences are non-compoundable, if they relate to matrimonial disputes

and the court is satisfied that the parties have settled the same

amicably and without any pressure, Section 320 of the Cr.P.C. would

not be a bar to the exercise of powers of quashing of the First

Information Report, complaint or the subsequent criminal

proceedings.

13. Reverting back to the facts and circumstances of

the present case, it would be evident that the parties have decided to

bury all the controversies and a petition to the said effect has been

filed by the complainant before the Sub-Divisional Judicial

Magistrate, Gaya on 17.11.2011 which has been taken note of by the

learned Sub-Divisional Judicial Magistrate, Gaya in its order dated
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17.11.2011. Consequently, and keeping in mind the decisions of the

Supreme Court, hereinabove, I am of the view that allowing the

further proceeding to continue in the court of Magistrate in case of the

petitioners may lead to unsurmountable harassment, agony and pain

not only to the accused, but also to the complainant-opposite party

no.2.

14. For the reasons stated above, allowing the

prosecution to continue as against the petitioners would amount to

gross abuse of the process of the Court.

15. In the result, this application is allowed and the

entire proceedings, including the order taking cognizance dated

06.12.2010 passed by the learned Sub-Divisional Judicial Magistrate,

Gaya in Complaint Case No. 1921 of 2009 is hereby quashed.

(Nilu Agrawal, J.)

Arjun/-

AFR/NAFR AFR
CAV DATE 03.05.2017
Uploading Date 10 .05.2017
Transmission 10.05.2017
Date

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