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Ajay Tank vs State Of U.P. And Another on 15 November, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. – 70

Case :- APPLICATION U/S 482 No. – 41006 of 2019

Applicant :- Ajay Tank

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Avijit Saxena

Counsel for Opposite Party :- G.A.

Hon’ble Sanjay Kumar Singh,J.

Sri A.K.Saxena, learned Advocate has filed his counter affidavit alongwith his vakalatnama on behalf of opposite party no.2, is taken on record.

Heard Sri Avijit Saxena, learned counsel for the applicant, learned Additional Government Advocate for the State/opposite party No.1 and Sri A.K.Saxena, learned counsel for opposite party No. 2 and perused the record with the assistance of learned counsel for the parties.

This application under Section 482 Cr.P.C. has been filed by the applicant to quash the charge-sheet No.04 of 2017 dated 31.01.2017 arising out of Case Crime No. 0095 of 2016 and proceedings of Criminal Case no.3994 of 2017 (State Vs. Ajay Taunk), under Sections 498-A, 323, 506 I.P.C. Section 3/4 Dowry Prohibition Act, Police Station Mahila Thana, District – Bulandshahar, pending in the court of Additional Chief Judicial Magistrate-Ist, Bulandshahar.

Filtering out unnecessary details, the basic facts, in brief, which are necessary for disposal of this case are that the applicant Ajay Taunk is husband of opposite party no.2 Monika. Marriage of applicant was solemnized on 02.12.2009 with the opposite party no.2, but at that time on account of acrimonious relation, opposite party no.2 lodged FIR dated 26.11.2016 against the applicant and other family members of the applicant under Sections 498-A, 323, 506, I.P.C. Section 3/4 Dowry Prohibition Act, making several allegations of her harassment and torture by the accused persons in her matrimonial home on account of non-fulfilment of demand of dowry, in which investigating officer submitted charge-sheet dated 31.01.2017 only against the present applicant. So far as other co-accused persons are concerned, their complicity in this case were found false. On the said charge-sheet, the magistrate concerned took cognizance on 06.11.2017. The said chargesheet and further criminal proceeding pursuant thereto are under challenge in the present application. It is submitted by learned counsel for the applicant that after submission of impugned charge-sheet, parties concerned have settled their dispute outside the court on 28.07.2018 and in this regard, a compromise deed dated 28.07.2018 has also been executed, which has been brought on record as Annexure No.4 to the application. Pursuant to said compromise dated 28.07.2018, the applicant and opposite party no.2 started living together as husband and wife without any grievance of any kind against each other. Thereafter opposite party no.2 has not pressed Maintenance Case No.408 of 2017 (Monika vs. Ajay Taunk), under section 125 Cr.P.C. filed by her on 26.02.2019 and similarly on the basis of compromise, Miscellaneous Case No.41 of 2018, under Section 12 of Domestic Violence Act filed by opposite party no.2 has been dropped vide order dated 17.12.2018. Both the aforesaid orders dated 26.02.2019 and 17.12.2018 have been brought on record as Annexure Nos.9 8 to the application. It is also pointed out that applicant (husband) had filed Original Case No.1380 of 2016 before Principal Judge, Family court, Ghaziabad, under section 13 of Hindu Marriage Act, but after compromise between the parties concerned, the said divorce petition filed by the applicant was not proceeded further and has been disposed of by order dated 28.07.2018, appended as Annexure No.5 to the application. Another case being Complaint Case No.2810 of 2018 (Monika vs. Ajay Taunk) filed by the opposite party no.2 was dismissed as not pressed vide order dated 17.12.2018 passed by the learned 1st Additional Chief Judicial Magistrate, Bulandshahar.          

It is also submitted that on account of compromise entered into between the parties concerned, all disputes between them have come to an end, and therefore, further proceedings against the applicant in the aforesaid case is liable to be quashed by this Court.

Learned Additional Government Advocate as well as learned counsel appearing on behalf of opposite party No.2 do not dispute the aforesaid fact. Learned counsel for opposite party No. 2 has also submitted at the Bar that since the parties concerned have settled their dispute as mentioned above, therefore, opposite party No.2 has no grievance and has no objection in quashing the impugned criminal proceedings against the applicant. Opposite party no.2 has filed a short counter affidavit accepting the factum of compromise dated 28.07.2018 made between them as mentioned above.

After having heard the arguments of learned counsel for the parties, before proceedings further, it is apposite to give reference of some judgments of the Apex Court, wherein the Apex Court has laid down the guideline for quashing of criminal proceedings arising out of non-compoundable offences under Section 320 Cr.P.C. on the basis of compromise and amicable settlement of matrimonial cases between the parties concerned, which are as follows:-

(i) The Apex Court in case of B.S. Joshi and others Vs. State of Haryana and another (2003) 1 SCC (Cri) 848 gave its approving nod to the existence and exercise of High Court’s power to quash the criminal proceedings on compromise in suitable matrimonial cases. Paragraph nos. 14 and 15 of the said judgment are reproduced herein-below:-

“14. There is no doubt that the object of introducing Chapter XX-A containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A 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 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.

15. 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.”

(ii) The Apex Court in case of State of Madhya Pradesh Vs. Laxmi Narayan and others, AIR 2019 SC 1296, considering previous judgments and section 320 Cr.P.C. has laid down guideline for exercising the inherent power under Section 482 Cr.P.C. in case of settlement of dispute between the parties concerned. Paragraph no. 13 of the said judgment is reproduced herein-below:-

“13. Considering the law on the point and the other decisions of this Court on the point, referred to hereinabove, it is observed and held as under:

(i) that the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves;

(ii) such power is not to be exercised in those prosecutions which involved 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;

(iii) similarly, such power is not to be exercised for the offences under the special statutes like 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;

(iv) offences under Section 307 IPC and the Arms Act etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone, and therefore, the criminal proceedings for the offence under Section 307 IPC and/or the Arms Act etc., which have a serious impact on the society cannot be quashed in exercise of powers under Section 482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves. However, the High Court would not rest its decision merely because there is a mention of Section 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 framing 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. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paragraphs 29.6 and 29.7 of the decision of this Court in the case of Narinder Singh (supra) should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove;

(v) while exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non compoundable offences, which are private in nature and do not have a serious impart on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise etc.”

On going through the judgments referred herein above makes it very clear that even in the cases which involved non compoundable offences, their quashing has been approved by the Apex Court if the nature of the offence is such which does not have grave and wider social ramifications and where the dispute is more or less confined between the litigating parties. The inherent jurisdiction of this Court may be suitably exercised if the parties inter-se have mutually decided to bury the hatchet and settle the matter amicably in between them in a criminal litigation emanating from matrimonial disputes, which are quintessentially of civil nature and other criminal litigations, which do not have grave and deleterious social fall-outs. The Court in the wider public interest may suitably exercise its power in appropriate case and terminate the pending proceedings in order to secure ends of justice or to prevent an abuse of the process of any court. Such positive exercise of the inherent jurisdiction can also find its vindication in a more pragmatic reason. When the complainant of a case or the victim of the offence itself expresses its resolve not to give evidence against the accused in the back drop of the compromise between the parties inter-se or if the fact of inter-se compromise in between the parties is apparent on the face of record, and they are still called upon the depose in the Court, they in all probability, go back on their words and resile from their previous statements, the truthfulness of which is best known only to themselves. They are in such circumstances very likely to eat their words and perjure themselves. The solemn proceedings of the Court often get reduced to a sham exercise and farce in such circumstances. The proceedings can hardly be taken to their logical culmination and in such circumstances, the prospect of the conviction gets lost.

The object of criminal law is primarily to visit the offender with certain consequences. He may be made to suffer punishment or by paying compensation to the victim, but the law at the same time also provides that it may not be necessary in every criminal offence to mete out punishment, particularly, if the parties concerned wants to bury the hatchet. If they want to move on in a matrimonial dispute on the basis of compromise, they may be allowed to compound the offences in terms of settlement.

After compromise/settlement arrived at between the parties in the present case, the chance of ultimate conviction is bleak and therefore, no useful purpose is likely to be served by allowing a criminal prosecution against the applicant to continue, as the same would be futile exercise and a sheer wastage of precious time of the Court. The continuation of a criminal proceedings after compromise would cause oppression and prejudice to the parties concerned.

Considering the facts and circumstances of the case in the light of dictum and guideline laid down by the Apex Court as mentioned above, this Court feels that this is a fit case, where this Court can exercise its inherent power to secure the end of justice. In view of above interest of justice would be met, if the prayer of parties is acceded to and the criminal proceedings and other litigation between the parties is brought to an end.

As a fallout and consequence of above discussions, impugned charge-sheet No.04 of 2017 dated 31.01.2017 arising out of Case Crime No. 0095 of 2016 and proceedings of Criminal Case no.3994 of 2017 (State Vs. Ajay Taunk), under Sections 498-A, 323, 506 I.P.C. Section 3/4 Dowry Prohibition Act, Police Station Mahila Thana, District-Bulandshahar, pending in the court of Additional Chief Judicial Magistrate-Ist, Bulandshahar against the applicant are hereby quashed.

The instant application under Section 482 Cr.P.C. is allowed in terms of compromise as mentioned above.

Order Date :- 15.11.2019

SKD

 

 

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