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Gulshan & Ors. vs State & Anr. on 16 April, 2019

$~5
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on:- 16th April, 2019

+ CRL.M.C. 4378/2016

GULSHAN ORS. ….. Petitioners

Through: Mr. Mukul Rawal, Advocate

versus

STATE ANR. ….. Respondents
Through: Mr. Raghuvinder Varma, APP for
State

Ms. Richa Dhawan, Advocate, DHCLSC for
R-2

CORAM:
HON’BLE MR. JUSTICE R.K.GAUBA

ORDER (ORAL)

1. The second respondent was married to the first petitioner as per
Hindu rites and ceremonies on 30.01.2012. No child took birth out of
this wedlock. On 24.10.2013, the second respondent lodged first
information report (FIR) no.235/2013 with police station Subzi Mandi,
alleging offences punishable under Section 498A, 406, 34 of the
Indian Penal Code, 1860 (IPC) against her husband (first petitioner),
his mother (second petitioner) and his sister (third petitioner). On

Crl. M.C. No.4378/2016 Page 1 of 8
conclusion of the investigation, police filed report under Section 173
of the Code of Criminal Procedure, 1973 (Cr. PC) on which
cognizance was taken, the said matter being pending on the file of the
Metropolitan Magistrate. The parties are stated to have entered into a
settlement out of their own free will and volition by executing
Memorandum of Understanding / Agreement dated 28.01.2015, by
virtue of which they had, inter alia, agreed to bring an end to their
marriage by mutual consent, and also approach this court for quashing
of the proceedings arising out of the aforementioned FIR.

2. The petition, thus, has been moved before this court invoking
Section 482 Cr. PC seeking quashing of the FIR no.235/2013 under
Sections 406, 498A, 34 IPC of Police Station Subzi Mandi.

3. The second respondent was served with the notice and entered
appearance on 03.05.2017. On her request, the matter was adjourned.
On some of the subsequent dates, she would not appear. She could
not appear on 17.05.2018 and the matter was once again renotified for
another date. On 23.08.2018, when the matter was called out, there
was again no appearance on her behalf, and consequently it was
adjourned with direction that the second respondent would have the
liberty to file her response on affidavit. The second respondent
appeared again on 25.02.2019 when she sought assistance of an
advocate at State expense. She was referred to Secretary, Delhi High
Court Legal Services Committee for the needful to be done and given
another opportunity for filing her response on affidavit within four
weeks.

Crl. M.C. No.4378/2016 Page 2 of 8

4. The learned counsel appointed by Delhi High Court Legal
Services Committee is present and submits that the second respondent
is not in contact with her at all. In above facts and circumstances,
there is no just or sufficient reason to enlarge the opportunity for the
second respondent to file her response further.

5. The petitioners have placed on record copy of the Memorandum
of Understanding / Agreement dated 28.01.2015. They have also
submitted on record copy of the proceedings recorded before the
Family Court of Central District on the joint petition of the parties,
they being HMA nos.162/2015 and 924/2015. It is noted that the joint
statement of the first petitioner and the second respondent herein were
recorded in the first said case (first motion) on 06.02.2015 and in the
second said case (second motion) on 17.08.2015. By the said
settlement, the second respondent, inter alia, had confirmed the
settlement of the dispute with the first petitioner on the terms stated,
she also giving an undertaking to the Family court that she would be
cooperative with the opposite party for getting the proceedings in the
aforementioned FIR quashed.

6. Pertinent to note here that offence under Section 498A IPC is
not compoundable. The parties are constrained to move this court for
quashing on the basis of amicable resolution arrived at by them in the
facts and circumstances noted above.

7. The scope and ambit of the power conferred on this court by
Section 482 of the Code of Criminal Procedure, 1973 (Cr. PC) read
with Articles 226 and 227 of the Constitution of India, in the particular

Crl. M.C. No.4378/2016 Page 3 of 8
context of prayer for quashing criminal proceedings, was examined by
the Supreme Court in B.S. Joshi and Ors. Vs. State of Haryana and
Anr., (2003) 4 SCC 675, against the backdrop of a catena of earlier
decisions. Noting, with reference to the decision in State of
Karnakata Vs. L Muniswamy, (1977) 2 SCC 699, that in exercise of
this “inherent” and “wholesome power”, the touchstone is as to
whether “the ends of justice so require”, and 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)

8. The Supreme Court in B.S. Joshi (supra) further noted as
under :-

“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

Crl. M.C. No.4378/2016 Page 4 of 8
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)

9. Holding that “special features in …matrimonial matters are
evident” and that it is “the duty of the court to encourage genuine
settlements of matrimonial disputes”, referring to Madhavrao
Jiwajirao Scindia Vs. Sambhajirao Chandrojiroo Angre, (1988) 1
SCC 692, it was further observed that :

“11. … Where, in the opinion of the court, chances
of an ultimate conviction are bleak and, therefore,
no useful purpose is likely to be served by allowing
a criminal prosecution to continue, the court may,
while taking into consideration the special facts of
a case, also quash the proceedings.”

Crl. M.C. No.4378/2016 Page 5 of 8

(emphasis supplied)

10. In Gian Singh Vs. State of Punjab and Anr. (2012) 10 SCC 303,
the Supreme Court contrasted the request for quashing of criminal
proceedings on the basis of settlement with the possibility of
compounding of an offence and observed thus :-

“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.”

(emphasis supplied)

11. The above views in the context of matrimonial disputes
resulting in criminal proceedings have been consistently followed over
the years, as may be further illustrated by the decision of a bench of
three Hon’ble Judges of the Supreme Court in Jitendra Raghuvanshi

Crl. M.C. No.4378/2016 Page 6 of 8
and Ors. Vs. Babita Raghuvanshi and Anr., (2013) 4 SCC 58, the
following observations summarising the philosophy succinctly :-

“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 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 their 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 process of court or that the ends
of justice require that the proceedings ought to be
quashed…”

(emphasis supplied)

12. In a case where criminal proceedings arise essentially out of
matrimonial dispute and the parties have decided to bury the hatchet,

Crl. M.C. No.4378/2016 Page 7 of 8
the court must examine if there is any likelihood of the criminal
prosecution resulting in conviction. In fact-situation wherein the
matrimonial relation has been brought to an end by mutual consent
and the parties are eager to move on with their respective lives seeking
closure and if there is nothing to indicate lack of bonafide on the part
of any side, denial of the prayer for quashing the criminal case would
restore acrimony rather than bring about peace. Allowing continuance
of the criminal action would be fruitless and clearly an abuse of
judicial process.

13. The case at hand passes the muster of the above-noted tests.

14. In the above facts and circumstances, the petition is allowed.
The crime registered by the police vide FIR 235/2013 under Sections
406, 498A, 34 IPC of Police Station Subzi Mandi and the proceedings
emanating therefrom are hereby quashed.

15. The petition is disposed of accordingly.

Dasti to both sides.

R.K.GAUBA, J.

APRIL 16, 2019
yg

Crl. M.C. No.4378/2016 Page 8 of 8

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