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Ashish Chand vs State Of U.P. And Another on 13 August, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. – 70

Case :- APPLICATION U/S 482 No. – 31052 of 2019

Applicant :- Ashish Chand

Opposite Party :- State Of U.P. And Another

Counsel for Applicant :- Rajeev Chaddha

Counsel for Opposite Party :- G.A.

Hon’ble Sanjay Kumar Singh,J.

Shri Jata Shankar Pandey, learned Advocate has filed his Vakalatnama and affidavit on behalf of opposite party no.2, in the Court today, the same are taken on record.

Heard Sri Rajeev Chaddha, learned counsel for the applicant, Sri Shiv Sewak Ram Dwivedi, learned Additional Government Adovocate for the State of UP/opposite party No.1 and Shri Jata Shankar Pandey, learned counsel for the opposite party No.2.

This application under Section 482 Cr.P.C. has been preferred by the applicant for quashing the charge-sheet No.41 of 2015 dated 15.2.2015 in Case No.2686 of 2016 arising out of Case Crime No.183 of 2014 under Sections 498A, Section323 IPC, P.S.-Mahila Thana, District-Ghaziabad, pending in the court of Additional Chief Judicial Magistrate-VIII, Ghaziabad.

Filtering out unnecessary details, the basic facts of this case in brief are that the applicant (Ashish Chand) is husband of opposite party No.2 (Smt. Bobby Keshri). The marriage of applicant was solemnized on 12.1.22013 with opposite party No.2, but their matrimonial life was not successful. On account of acrimonious relationship a matrimonial dispute arose between them, thereafter opposite party No.2 lodged FIR dated 21.5.2014 against the applicant under Section 498A Section323 IPC, registered as Case Crime No.183 of 2014 at P.S.-Mahila Thana, District-Ghaziabad making several allegations of harassment and torture adopting different mods-oprandi against the applicant, in which charge-sheet dated 15.2.2015 has been submitted by the Investigating Officer against the applicant.

It is submitted by the learned counsel for the applicant that after submission of charge-sheet, the applicant and the opposite party No.2 entered into a compromise on 15.2.2016 and settled their dispute outside the court. The said compromise dated 15.2.2016 has been appended as Annexure-3 to the application. It is further submitted that as per the compromise deed executed on 15.2.2016, it was agreed between the parties that the applicant and the opposite party No.2 will file petition under Section 13 (1)(B) of Hindu Marriage Act on mutual consent and at the time of filing the said petition, the applicant shall pay an amount of Rs.3,00,000/- (Rs. three lakhs) to the opposite party No.2. The said terms and conditions have been complied with, as a petition under Section 13(1)(B) of Hindu Marriage Act has been filed on 22.2.2016 before the Family Court and the said amount of Rs.3,00,000/- (Rs.three lakhs) has been paid to the opposite party No.2. Another condition of the settlement between the parties was that applicant was also required to pay a sum of Rs.2,00,000/- (Rs. two lakhs) to the opposite party no.2 in order to resolve all the disputes between them. It is pointed out that the opposite party No.2 as per the terms and conditions of settlement dated 15.2.2016, has not pressed the cases filed by her against the applicant, titled as Case No.748 of 2014 (Smt. Bobby Keshri vs. Ashish Chand) under Section 125 Cr.P.C. as well as Case No.1952 of 2015 (Smt. Bobby Keshri vs. Ashish Chand)  and under Section 12 of The Protection of Women from SectionDomestic Violence Act, 2005. Thereafter, aforesaid case no. 748 of 2014 has been dismissed as not pressed by order dated 12.3.2016, passed by Principal Judge, Family Court, Ghaziabad and Case No. 1952 of 2015 has been disposed of in terms of compromise by order dated 12.03.2016 of CJM, Court No.5, Ghaziabad. Both the above orders have been brought on record as Annexure-5 to this application.

In pursuance of the aforesaid settlement, learned counsel for the applicant produced a Demand Draft No.314473 dated 24.5.2019 of Rs. one lakh issued by Punjab National Bank in the name of Smt. Bobby Kumari Keshri and handed over the said demand draft to Smt. Bobby Keshri/opposite party No.2 before this Court today. Xerox copy of the said demand-draft has also been brought on record as Annexure-6 to this application. So far as payment of remaining amount of Rs. one lakh is concerned, it is submitted on behalf of the applicant that the same shall be paid by the applicant to the opposite party no.2 at the time of passing order of divorce by the family court.

Learned counsel for the opposite party No.2 in presence of the opposite party No.2, submitted that now all the disputes between the parties concerned have come to an end and in case the impugned charge-sheet dated 15.2.2015 and further criminal proceeding pursuant thereto is quashed by this Court, the opposite party No.2 will have no objection.

The opposite party No.2, who is present before this Court also submitted that a suitable direction may also be issued that she may not be harassed by the applicant in future.

On the aforesaid apprehension raised by the opposite part no.2, learned counsel for the applicant submitted since the entire dispute has come to an end, therefore, the applicant undertakes that he will not initiate any further proceeding against the opposite party No.2 and will not harass her in any manner with regard to matrimonial dispute.

The scope and ambit of the power conferred on the High court by Section 482 Cr.P.C., read with Articles 226 and 227 of the Constitution of India, in the particular context of prayer for quashing criminal proceedings, was examined by the Supreme Court in B.S. Joshi and others. Vs. State of Haryana and another1 against the backdrop of a catena of earlier decisions. It was a criminal case arising out of marital discord. Noting, with reference to the decision in State of Karnakata Vs. L Muniswamy2 that in exercise of this “inherent” and “wholesome power”, the touchstone is as to whether “the ends of justice so require”, it was observed thus :

“10. … that in a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice and that the ends of justice are higher than the ends of mere law though justice had got to be administered according to laws made by the legislature. …that the compelling necessity for making these observations is that without a proper realization of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.” (emphasis supplied)

It was further noted :-

“What would happen to the trial of the case where the wife does not support the imputations made in the FIR of the type in question. As earlier noticed, now she has filed an affidavit that the FIR was registered at her instance due to temperamental differences and implied imputations. There may be many reasons for not supporting the imputations. It may be either for the reason that she has resolved disputes with her husband and his other family members and as a result thereof she has again started living with her husband with whom she earlier had differences or she has willingly parted company and is living happily on her own or has married someone else on the earlier marriage having been dissolved by divorce on consent of parties or fails to support the prosecution on some other similar grounds. In such eventuality, there would almost be no chance of conviction. Would it then be proper to decline to exercise power of quashing on the ground that it would be permitting the parties to compound non-compoundable offences? The answer clearly has to be in the “negative”. It would, however, be a different matter if the High Court on facts declines the prayer for quashing for any valid reasons including lack of bona fides”. (emphasis supplied)

The Apex Court recently in a judgment dated 5.3.2019 rendered by a Bench of three Hon’ble Judges in case of State of Madhya Pradesh Vs. Laxmi Narayan and others3 considering previous judgments and Sectionsection 320 Cr.P.C. has laid down guideline for exercising the jurisdiction under Section 482 Cr.P.C. in case of settlement of dispute between the accused and complainant. The para 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 SectionPrevention 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 SectionArms 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 SectionArms 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.”

Considering the facts and circumstances of the case, as on date in the light of dictum and guideline laid down by the Apex Court as mentioned above, I think the interests 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.

On making settlement between the parties in a matrimonial dispute, the chance of ultimate conviction is bleak and therefore, no useful purpose is likely to be served by allowing a criminal prosecution against the applicants to continue.

In view of the above, the charge-sheet No.41 of 2015 dated 15.2.2015 in Case No.2686 of 2016 arising out of Case Crime No.183 of 2014 under Sections 498A, Section323 IPC, P.S.-Mahila Thana, District-Ghaziabad, pending in the court of Additional Chief Judicial Magistrate-VIII, Ghaziabad, is hereby quashed.

The instant application under Section 482 Cr.P.C. is, accordingly, allowed in terms of compromise.

Order Date :- 13.8.2019

LN Tripathi

 

 

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