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Gaurav Sharda And 3 Others vs State Of U.P. And Another on 14 November, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R. Reserved on: 10.8.2018

Delivered on: 14.11.2018

Court No. – 54

Case :- APPLICATION U/S 482 No. – 13428 of 2016

Applicant :- Gaurav Sharda And 3 Others

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

Counsel for Applicant :- Ashish Jaiswal,Rajneesh Sharma,Satya Deo Ojha

Counsel for Opposite Party :- G.A.,Ashish Goyal

Hon’ble Rajeev Misra,J.

1. This application under Section 482 Cr.P.C. has been filed challenging the Charge Sheet No. 367/15 dated 28.9.2015, submitted in Case Crime No. 95/2015 under sections 313/316/376/342/323/506 IPC, P.S. Kotwali Nagar, District Hathras as well as the consequential proceedings of Case No. 997 of 2016 (State Vs. Gaurav Others) pending before the Chief Judicial Magistrate, Hathras.

2. I have heard Mr. Daya Shanker Mishra, learned Counsel assisted by Mr. Vikrant Neeraj, learned counsel for the applicants, learned A.G.A. for the State and Mr. Ashish Goyal, the learned counsel appearing for the opposite party no.2.

3. Brief facts giving rise to the present application under Section 482 Cr.P.C. may be summarized in a nut shell. The marriage of the applicant No. 1 Gaurav Sharda was solemnized with the opposite party No.2 Smt. Eti Maheshwari on 17.11.2000 at Hathras in accordance with the Hindu Rites and Customs. From the wedlock of the applicant no.1 and the opposite party No.2, a son Anant Sarda was born on 31.8.2012. The relationship between the applicant No.1 and his wife, the opposite party No.2 herein, with the passage of time, became incompatible. The applicant No.1 the husband filed a suit for a dicree of divorce in the Court of the Principal Judge, Family Court, Patna. The same was registered as Matrimonial Case No. 5278 of 2014 Gaurav Sharda Vs. Smt. Garima @ Eti.

4. During the pendency of the aforesaid divorce suit, the opposite party No.2 lodged an F.I.R. dated 9.2.2015 against the applicant No.1 and three others, which was registered as Case Crime No. 0068 of 2015 under Section 313, 316, 376, 377, 342, 323, 506 IPC, P.S. Hathras Kotwali, District Hathras. Thereafter the statement of the first informant i.e. the wife of the applicant No.1 was recorded by the Investigating Officer in terms of Section 161 Cr.P.C. on 13.2.2015. Thereafter, her statement under Section 164 Cr.P.C. was recorded on 26.2.2015. In both the statements the opposite party No. 2 supported the prosecution story as unfolded in the F.I.R.

5. Aggrieved by the F.I.R. dated 9.2.2015, the applicants herein filed Criminal Misc. Writ Petition No. 5244 of 2015, Gaurav Sharda and three Others Vs. State of U.P. and three others before this Court. The aforesaid writ petition came up for admission on 25.2.2015 before a Division Bench and the Court passed the following interim order:-

“Heard learned counsel for the petitioners, learned AGA for the State and perused the record.

Learned counsel for the petitioners submitted that the petitioner no.1 is husband of the respondent no.4. Due to some misunderstanding, First Information Report was lodged with false and vague allegation not only against the husband petitioner no.1 but also against the other family members. He further submitted that if the matter will be referred to Mediation and Conciliation Centre, then there is chances of compromise in between the parties.

Issue notice to opposite party no. 4 returnable at an early date provided Rs. 5000/- is deposited in cash in the account of Mediation and Conciliation Centre High Court, Allahabad and a draft for a sum of Rs.15,000/- in the name of opposite party no. 4, Smt. Eti Maheshwari @ Garima within a period of three weeks. If the aforesaid amount is deposited the matter shall be referred to Mediation Centre, High Court. The aforesaid draft in the name of opposite party no. 4 shall be handed over to her on her first appearance.

List on 29.4.2015 before the regular Bench with report of the Mediation Centre, if any.

Till the next date of listing, further proceeding of Case Crime No. 95 of 2015 under section 313, 316, 376, 377, 342, 323 and 506 I.P.C., PS. Hathras Kotwali, District Hathras shall remain stayed. If the aforesaid amount is not deposited the interim order shall automatically stand vacated without referring the matter to the court.”

6. However, the mediation between the parties could not materialize, and accordingly a report to that effect was submitted by the Mediation and Conciliation Centre, High Court, Allahabad. Thereafter, the aforesaid writ petition came to be disposed of finally vide order dated 16.7.2015. For ready reference the order dated 16.7.2015 is quoted herein below:-

“Heard learned counsel for the petitioners and learned A.G.A. for the State.

This writ petition has been filed by the petitioners with a prayer to issue a writ order or direction in the nature of certiorari quashing the impugned F.I.R. dated 9.2.2015 (annexure-1) to the writ petition registered as Case Crime no. 95 of 2015, under sections 313, 316, 376, 377, 342, 323 and 506 I.P.C., P.S. Hathras Kotwali, district-Hathras.

Further prayer has been made issuing a writ, order or direction in the nature of mandamus commanding the opposite party no. 2 not to arrest or adopt any coercive measures against the petitioners in pursuance of the investigation of Case Crime no. 95 of 2015.

This Court by order dated 25.2.2015 had referred the matrimonial dispute between the petitioner no. 1, Gaurav Sarda and respondent no. 4, Smt. Eti Maheshwari from which the proceedings giving rise to the impugned criminal prosecution of the petitioners emanates to the mediation centre of this Court and had stayed further proceedings of the aforesaid case namely, Case Crime no. 95 of 2015 till the next date of listing. The interim order dated 25.2.2015 was extended till further orders of this on 29.4.2015.

The order which was passed in this case on 25.2.2015 reads as under :

“Heard learned counsel for the petitioners, learned AGA for the State and perused the record.

Learned counsel for the petitioners submitted that the petitioner no.1 is husband of the respondent no.4. Due to some misunderstanding, First Information Report was lodged with false and vague allegation not only against the husband petitioner no.1 but also against the other family members.

He further submitted that if the matter will be referred to Mediation and Conciliation Centre, then there is chances of compromise in between the parties.

Issue notice to opposite party no. 4 returnable at an early date provided Rs. 5000/- is deposited in cash in the account of Mediation and Conciliation Centre High Court, Allahabad and a draft for a sum of Rs.15,000/- in the name of opposite party no. 4, Smt. Eti Maheshwari @ Garima within a period of three weeks. If the aforesaid amount is deposited the matter shall be referred to Mediation Centre, High Court. The aforesaid draft in the name of opposite party no. 4 shall be handed over to her on her first appearance.

List on 29.4.2015 before the regular Bench with report of the Mediation Centre, if any.

Till the next date of listing, further proceeding of Case Crime No. 95 of 2015 under section 313, 316, 376, 377, 342, 323 and 506 I.P.C., PS. Hathras Kotwali, District Hathras shall remain stayed. If the aforesaid amount is not deposited the interim order shall automatically stand vacated without referring the matter to the court.”

When the matter was taken up today, learned counsel for the respondent no. 4 drew our attention to the report of the mediation of 8.5.2015 and submitted that the parties are not willing for mediation and in view of the above, there is no likelihood of this matter be settled through mediation.

In view of the above, we proceed to examine the matter on merits.

From the perusal of the FIR it appears that on the basis of allegation made therein the prima facie cognizable offence is made out. There is no scope of interfering in the FIR. Therefore, the prayer for quashing the FIR is refused.

However, considering the peculiar facts and circumstances, it is directed till the submission of police report under section 173(2) Cr.P.C., the petitioners shall not be arrested in the aforesaid case.

With the aforesaid direction, writ petition is finally disposed of.”

7. It appears that in the divorce suit filed by the applicant No. 1, a settlement was arrived at between the parties on 14.7.2015. The settlement was reduced to writing, the photo copy of the same is on the record as Annexure-6 to the affidavit at page 37 of the paper book. According to the terms of settlement, the parties agreed for the grant of a decree of divorce by mutual consent. Secondly, upon the grant of the decree of divorce, the opposite party No.2 i.e. the mother was to hand over the child to the applicant No.1 i.e. the father permanently. The applicant No.1 i.e. the husband was to pay permanent alimony inclusive of the dowry and damages amounting to Rs. 17,00,000/- (Rupees seventeen lacs only) to the opposite party No.2 i.e. the wife. Lastly, the parties were to get the proceedings of Case Crime No. 95 of 2015, P.S. Hathras Kotwali and the divorce suit settled by way of compromise with a rider that neither of the party shall sue another or the family member of each others family.

8. Subsequent to the settlement deed dated 14.7.2015, the opposite party No.2 i.e. wife filed a written statement dated 14.8.2015 in Matrimonial Case No. 5278 of 2014 Gaurav Sharda Vs. Smt. Garima @ Eti. The opposite party No.2 clearly admitted the settlement dated 14.7.2015 entered into between the parties and also the receipt of Rs. 17,00,000/- by her towards permanent alimony.

9. While the aforesaid divorce suit filed by the applicant No.1 was pending, the Investigating Officer, without even awaiting for the outcome of the above mentioned divorce suit, submitted a charge sheet dated 28.9.2015 against the present applicants i.e. the named accused in the F.I.R.

10. Ultimately, the divorce suit filed by the applicant No.1 came to be decreed by the Principal Judge, Family Court, Patna vide judgement dated 19.1.2018 and the decree dated 2.2.2018.

11. Feeling aggrieved by the Charge sheet dated 28.9.2015 bearing no. 367/15 submitted by the Investigating Officer, the applicants have now approached this Court by means of the present application under Section 482 Cr.P.C.

12. Mr. Daya Shanker Mishra, the learned Counsel for the applicant, submits that in the present case the entire proceedings of the State case, detailed above, are liable to be quashed by this Court on two simple grounds. Firstly, the parties i.e. the applicant No.1 and the opposite party No.2 wife of the applicant No.1 have already settled the matter by way of a settlement deed dated 14.7.2015. This settlement deed has been acted upon which is clearly evident from the recital contained in the written statement dated 14.8.2015 filed by the opposite party No.2 and resulting in the decree of the divorce suit filed by the husband i.e. the applicant no.1. Thus, once the matter has been decided finally on the basis of settlement/compromise, so entered into between the parties, the same cannot be ignored by the parties and the parties cannot be permitted to proceed contrary to the intention of the settlement.

13. He next contends that in the present case, no cause of action has accrued to the opposite party No.2 herein i.e. the wife of the applicant No.1 herein to lodge the F.I.R. at Aligarh. To buttress his submission, reliance is placed upon the following judgements of the Apex Court as well as this Court:-

(i) Anupam Vashishth Vs. State of Uttar Pradesh, 2013 (1) JIC 415.

(ii) Y. Abraham Ajith Vs. Inspector of Police, Chennai, 2004 (8) SCC 100.

(iii) Ramesh Vs. State of Tamil Nadu, 2005 (3) SCC 507.

(iv) Navinchandra N. Majithia Vs. State of Maharashtra, 2000 (7) SCC 640.

(v) Manish Ratan Vs. State of Madhya Pradesh, 2007 (1) SCC 262.

(vi) Geeta Mehrotra Vs. State of U.P., 2012 (10) SCC 741.

(vii) R.P. Kapur Vs. State of Punjab, 1960 AIR (SC) 866.

(viii) State of Haryana Vs. Bhajan Lal, 1992 AIR (SC) 604.

14. Mr. Ashish Goyal, the learned counsel appearing for the opposite party No.2, has supported the impugned F.I.R. He has invited the attention of the Court to the impugned F.I.R., the statements of the first informant under section 161 Cr.P.C. as well as under Section 164 Cr.P.C. and also the provisions of Sections 177 and 178 Cr.P.C. to contend that the present criminal proceedings cannot be faulted on the question of jurisdiction qua the place where the F.I.R. was lodged. He, next contends that the applicants had challenged the F.I.R. dated 9.2.2015 before this Court by way of Criminal Misc. Writ Petition No. 5244 of 2015 (Gaurav Sharda and three others Vs. State of U.P. and three others). The ground raised by the learned counsel for the applicant in challenge to the entire proceedings arising out of the F.I.R. dated 9.2.2015 that no cause of action has accrued at Aligarh nor the same is a continuing cause of action was available at the time of the filing of the aforesaid criminal misc. writ petition. Therefore, irrespective of the fact as to whether the same was urged or not will be deemed to have been taken but not accepted. He, thus, submits that in view of the aforesaid the present application under Section 482 Cr.P.C. is liable to be dismissed by this Court.

15. From the arguments raised by the learned counsel for the parties, the following issues arise for determination:-

(a) Once the suit for divorce filed by the applicant No. 1 has been decided on the basis of the settlement arrived at between the parties on 14.7.2015 can the opposite party No.2 still continue the criminal proceedings even in the presence of an specific stipulation to the contrary in the settlement deed dated 14.7.2015.

(b) Whether the present application under Section 482 Cr.P.C. can be allowed on the ground that no cause of action has accrued to the opposite party No.2 at Aligarh, nor there is a continuing cause of action which enables the opposite party No.2 to lodge the F.I.R. at District Aligarh.

(c) Whether in the absence of the date and time on which the offence under section 376 IPC was committed upon the opposite party No.2 the impugned charge sheet is liable to be quashed.

16. It is an undisputed fact that the relationship between the applicant No.1 and the opposite party No.2 is that of husband and wife. It is also not disputed by the parties that a suit for divorce was filed by the applicant No.1 i.e. the husband i.e. Matrimonial Case No. 5278 of 2014 Gaurav Sharda Vs. Smt. Garima @ Eti. During the pendency of the aforesaid divorce suit, the parties arrived at a settlement and accordingly, a settlement deed dated 14.7.2015 was filed. The contents of the settlement deed were also reiterated by the opposite party No.2 in her written statement dated 14.8.2015 filed in the aforesaid matrimonial case. The factum regarding the payment of Rs. 17,00,000/- towards permanent alimony was clearly admitted. The settlement deed dated 14.7.2015 contains a categorical stipulation that the parties shall get Case Crime No. 95 of 2015 and the divorce suit decided on the basis of compromise and no future action shall be taken against each other or the family members of each others family.

17. The question which now falls for consideration before this Court is whether in view of the aforesaid categorical stipulation in the settlement deed which has been acted upon, the present criminal proceedings can be allowed to continue. The issue involved herein is no longer res integra. The Apex Court in the case of Shlok Bhardwaj Vs. Runika Bhadwaj and others, reported in 2015 (2) SCC 721 in almost similar circumstances has made the following observations in paragraph 11, which are quoted herein under:-

11. It is clear from perusal of the impugned order [Runika Bhardwaj v. State of U.P., Criminal Revision No. 1159 of 2002, decided on 21-11-2006 (All)] of the High Court that the development of settlement between the parties during pendency of the revision petition has not even been adverted to. Once the matter was settled between the parties and the said settlement was given effect to in the form of divorce by mutual consent, no further dispute survived between the parties, though it was not so expressly recorded in the order of this Court. No liberty was reserved by the wife to continue further proceedings against the husband. Thus, the wife was, after settling the matter, estopped from continuing the proceedings.

18. In the case in hand the settlement deed dated 14.7.2015, contains a specific stipulation that the parties shall get the Case Crime No. 95 of 2015, P.S. Hathras Kotwali and the Divorce Suit decided by way of compromise. Having accepted the compromise, the applicant No.1 out of his bona fide in view of the acceptance of the settlement arrived at between the parties has paid a sum of Rs. 17,00,000/- to the opposite party No.2 which has been admitted by her in the written statement filed in Matrimonial Case No. 5278 of 2014 Gaurav Sharda Vs. Smt. Garima @ Eti. Having admitted the settlement and also accepting the benefits arising out of that settlement, the opposite party No.2 is now estopped from continuing the criminal proceedings giving rise to the present application under section 482 Cr.P.C. The compromise entered into between the parties has to be treated as an effective compromise, a full and final attempt to bring an end to all disputes. There is no explanation on the part of the opposite party No. 2 as to why in spite of the specific condition No.5 of the settlement deed, no application for quashing the proceedings of the criminal case i.e. Case No. 997 of 2016 (State Vs. Gaurav Others) pending before the Chief Judicial Magistrate, Hathras was filed before this Court.

19. Consequently, in view of the discussion made herein above, the inescapable conclusion is that the present criminal proceedings continued by the opposite party No.2 are in derogation of the settlement arrived at between the parties as evident from the settlement deed dated 14.7.2015 which has been acted upon by the parties. The opposite party No.2 has already accepted the amount of permanent alimony of Rs. 17,00,000/- and the suit of the applicant No.1 for grant of divorce has also been decreed also on account of no contest being raised by the opposite party No.2 which again was a condition contained in the deed of settlement dated 14.1.2015. Thus, the condition no.5 of the settlement deed was required to be given full and final effect and not partially. As such, the continuance of the present criminal proceedings at the behest of the opposite party No.2, is an abuse of the process of the Court and therefore, cannot be allowed to continue. In view of the aforesaid discussion, the other issues involved do not require any adjudication as the same shall only be an academic exercise.

20. As a result the present criminal misc. application succeeds and is allowed. The entire proceedings of Case No. 997 of 2016 (State Vs. Gaurav Others) under sections 313, 316, 376, 377, 342, 323, 506 IPC pending before the Chief Judicial Magistrate, Hathras are hereby quashed.

21. However, there shall be no order as to costs.

Order Date :- 14.11.2018

Arshad

 

 

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