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Mohd. Shakir @ Shakir Ali And 4 … vs State Of U.P. And Another on 16 July, 2021

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HIGH COURT OF JUDICATURE AT ALLAHABAD

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Court No. – 83

Case :- APPLICATION U/S 482 No. – 1644 of 2021

Applicant :- Mohd. Shakir @ Shakir Ali And 4 Others

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

Counsel for Applicant :- Avdhesh Kumar

Counsel for Opposite Party :- G.A.,S P Tiwari

Hon’ble Rajeev Misra,J.

1. Heard Mr. Avdhesh Kumar, learned counsel for applicants, learned A.G.A. for State and Mr. S. P. Tiwari, learned counsel representing opposite party-2.

2. This application under Section 482 Cr.P.C. has been filed challenging charge sheet dated 12.04.2017 submitted in Case Crime No. 404 of 2015 under Sections 498A, 323 I.P.C. and Sections 3/4 D. P. Act, Police Station-Handia, District- Prayagraj, summoning order dated 17.09.2017 passed by Additional Chief Judicial Magistrate-8th, Prayagraj as well as entire proceedings above mentioned Criminal case, now pending in the Court of Additional Chief Judicial Magistrate-8th, Prayagraj

3. Present application came up for admission on 01.02.2021 and this Court passed the following order:

” Learned counsel for the applicants is permitted to make necessary corrections in the prayer clause today itself.

Heard Mr. Avdhesh Kumar, learned counsel for the applicants the learned A.G.A. for the State and Mr. S.P. Tiwari, Advocate who has put in appearance on behalf of opposite party no.2 by filing his vakalatnama along with counter affidavit in Court today, which is taken on record, as well as perused the material available on record.

This application under Section 482 Cr.P.C. has been filed for quashing the charge-sheet dated 12th April, 2017, cognisance/summoning order dated 17th September, 2017 as well as entire proceedings of Criminal Case No. 1265 of 2017 (State Vs. Shakir Ali Others), arising out of Case Crime No. 404 of 2015, under Sections 498-A, 323 I.P.C. as also under Sections 3/4 D.P. Act, Police Station-Handia, District-Prayagraj, pending in the court of Additional Chief Judicial Magistrate-VIII, Prayagraj, in terms of the compromise entered into between the parties. Further prayer has been made to stay the proceedings of the aforesaid case.

It is submitted on behalf of the applicants that the dispute between the parties is matrimonial in nature. Applicant nos. 1 to 5 are husband, father-in-law, mother-in-law, Jethani and unmarried Nanad of opposite party no.2 respectively. It is further submitted that on account of intervention of well-wishers applicants and opposite party no.2, they have settled their disputes and arrived at a compromise. A copy of the compromise deed dated 24th November, 2020 has been enclosed as Annexure-5 to the affidavit accompanying the present application and the same has also been filed along with counter affidavit filed on behalf of opposite party no. 2. It is, thus, contended that proceedings of the aforesaid case be quashed in the light of law laid down by the Apex Court in the case of Gian Singh v. State of Punjab : (2012) 10 SCC 303.

Learned counsel for opposite party no.2 supports the submissions made by the learned counsel for the applicants.

Whether a compromise has taken place or not can at best be ascertained by the court, where the proceedings are pending, after ensuring the presence of the parties before it.

Put up this case on 17th March, 2021 as fresh before the appropriate Bench.

Learned counsel for the parties undertake to ensure the presence of both the parties before the court below or any other transferee court, as the case may be, on 25th February, 2021 and the court concerned, thereafter, shall ascertain the veracity of the compromise. If the said compromise is verified, the same shall be made part of the record and report to that effect, will be prepared and the parties would be allowed to obtain certified copy thereof and file the same before this Court.

Office is directed to send through FAX a copy of this order as well as the photocopy of the compromise deed dated 24th November, 2020 within a week from today.

Parties are also directed to produce certified copy of this order before the court concerned on the date fixed before it.

Till the next date of listing, no coercive steps would be taken against the applicants in the aforesaid criminal case.”

4. Pursuant to order dated dated 01.02.2021 communication was sent to the concerned Magistrate by registry to verify the compromise and submit its report. Office has submitted a report dated 14.07.2021 stating therein that in compliance of order dated 01.02.2021, requisite report has not yet been received from concerned court.

5. Learned counsel for applicants has filed supplementary affidavit today in court today, which is taken on record. Alongwith supplementary affidavit, certified copy of order dated 08.03.23021 passed by Additional Chief Judicial Magistrate-8th Allahabad in above mentioned criminal case has been brought on record whereby compromise between the parties has been verified.

6. record shows that an F.I.R. dated 02.09.2015 was lodged by informant, opposite party,2 Rukshana Begum, which was registered as Case Crime No. 0404 of 2015 under Sections 498A, 323 I.P.C. and Section 3/4 D. P. Act, P. S. Handia, District-Allahabad. In the aforesaid F.I.R., five persons namely Shakir Ali (Husband), Aqtar Ali (Father-in-law), Kuriasha Begum (Mother-in-law), Hasina Begum(Jethani) and Nasima Bano (Nanad) have been nominated as named accused.

7. Police upon completion of statutory investigation of above mentioned Case Crime Number in terms Chapter Xii Cr.P.C. submitted a charge sheet dated 12.04.2017 whereby all the named accused have been charge-sheeted under Sections 498A, 323 I.P.C. and Section 3/4 D. P. Act. After submission of above noted charge sheet, Additional Chief Judicial Magistrate, Allahabad vide order dated 17.08.2014 took cognizance upon same. As a consequence of aforesaid, Case No. 1265 of 2017 (State Vs. Sakir Ali) under Sections 498A, 323 I.P.C. and Section 3/4 D. P. Act, P. S. Handia, District-Allahabad came to be registered which is now pending in the Court of Additional Chief Judicial Magistrate, 8th Prayagraj.

8. During pendency of above noted criminal case, parties amicably settled their dispute outside the Court. On the basis of settlement so arrived at between the parties, a compromise application dated 24.11.2020 was filed before Court below. Certified copy of same is on record as Annexure-5 to the affidavit. By means of aforesaid compromise it has been jointly prayed by parties that matter be decided by Court on the basis of compromise.

9.Learned counsel for applicants contends that dispute between the parties is a purely private dispute. During pendency of case before Court below, parties have amicably settled their dispute. On the basis of settlement so arrived at between parties, a joint compromise application dated 24.11.2020 was filed before court below. As no orders have been passed by Court below on above mentioned joint compromise application, applicants who are charge-sheeted accused have now approached this Court by means of present application under section 482 Cr.P.C. seeking quashing of proceedings of above mentioned criminal case in view of compromise so entered between parties.

10. On the aforesaid premise, it is urged by learned counsel for applicant that once parties have entered into a compromise, no useful purpose shall be served by prolonging proceedings of above mentioned criminal case. Since compromise has been verified by court below pursuant to order dated 01.02.2021, interest of justice shall better be served in case, entire proceedings of above mentioned criminal case are quashed by this Court itself in exercise of its jurisdiction under Section 482 Cr. P. C, instead of relegating the parties to Court below.

11. Learned A.G.A. as well as learned counsel for opposite party No. 2 do not oppose the prayer made by learned counsel for applicant.

12. It is contended by learned counsel for informant/opposite party-2 that once informant herself has compromised with accused applicants, then in that eventuality, she cannot have any objection, in case entire proceedings of above mentioned criminal case are quashed by this Court. He has further not disputed the averments made in the affidavit filed in support of present application under section 482 Cr.P.C, nor has he disputed the factum regarding verification of compromise entered into by court below vide order dated 08.03.2021.

13.This Court is not unmindful of the following judgements of Apex Court:

1. B.S. Joshi and others Vs. State of Haryana and another (2003)4 SCC 675

2. Nikhil Merchant Vs. Central Bureau of Investigation[2008)9 SCC 677]

3. Manoj Sharma Vs. State and others ( 2008) 16 SCC 1

4. Shiji @ Pappu and Others VS. Radhika and Another, 2011 (10) SCC 705

5. Gian Singh Vs. State of Punjab (2012) 10 SCC 303

6. Narindra Singh and others Vs. State of Punjab ( 2014) 6 SCC 466

7. Yagendra Yadav and Ors. Vs. State of Jharkhand and another 2014 (9) SCC 653

8. Rampal Vs. State of Haryana, AIR online 2019 SC 1716

9. State of M.P. V/s Laxmi Narayan Ors., 2019 (5) SCC 688

10. Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Others Vs. State of Gujarat and annother, 2017 (9) SCC 641

wherein the Apex Court has categorically held that compromise can be made between the parties even in respect of certain cognizable and non compoundable offences. However, Apex Court in State of M.P. Vs. Laxmi Narayan (Supra) that no compromise can be made in respect of offences against society as they are not private in nature. Similarly in Ram Pal Vs. State of Haryana (Supra) it has been held that no compromise can be made in cases relating to rape and sexual assault. Reference may also be made to the decision given by this Court in Shaifullah and others Vs. State of U.P. And another [2013 (83) ACC 278] in which the law expounded by the Apex court in some of the aforesaid cases has been explained in detail.

14. Recently Apex court in Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur (Supra) has laid down the following guideline with regard to quashing of criminal proceedings as well compromise in criminal proceedings in paragraphs 16 to 16.10, which read as under:

“16. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions

16.1. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;

16.2. The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.

16.3. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;

16.4. While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;

16.5. The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;

16.6. In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;

16.7. As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;

16.8. Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;

16.9. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of aconviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and

16.10. There is yet an exception to the principle set out in propositions 16.8 and 16.9 above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.”

15. Considering the facts and circumstances of the case, as noted herein above, and also the submissions made by the counsel for parties, this court is of the considered opinion that no useful purpose shall be served by prolonging the proceedings of the above mentioned complaint case. Permitting the proceedings to continue would entail loss of judicial time particularly when Courts are flooded with dockets of litigation.

16. Accordingly, present application succeeds and is liable to be allowed.

17. It is according allowed. Entire proceedings of Criminal Case No. 1265 of 2017 (State Vs. Sakir Ali and others) under Sections 498A, 323 I.P.C. and Sections 3/4 D. P. Act, Police Station-Handia, District- Prayagraj pending in the court of Additional Chief Judicial Magistrate 8th Prayagraj, are hereby quashed.

18. Cost made easy.

Order Date :- 16.7.2021

YK

 

 

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