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Rinkash Singh Rakwal vs State And Another on 19 November, 2018

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

CRMC No.669/2018

Date of order: 19.11.2018
Rinkash Singh Rakwal Vs. State and another
Coram:
Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge.

Appearing counsel:
For Petitioner (s) : Mr. Rinkash Singh Rakwal, petitioner in person.
For Respondent (s) : Mr. Sudesh Magotra, GA for respondent No.1.

Mr. D. S. Saini, Advocate for respondent No.2.

i) Whether to be reported in
Digest/Journal : Yes/No.
ii) Whether approved for reporting
in Press/Media : Yes/No.

1. Through the medium of instant petition filed under Section 561-A Cr.P.C.,
petitioner seeks quashing of Challan bearing No.08/Challan dated
14.05.2011 produced by the Police Station Women Cell, Jammu, in FIR
No.54/2010 dated 03.12.2010, pending before the Court of Special
Municipal Mobile Magistrate, Jammu.

2. It has been stated in the petition that the marriage between petitioner and
respondent No.2 was solemnized on 20.10.2009 according to Hindu Rites
and Customs at Talab Tillo, Jammu and out of the said wedlock no issue
was born. Both petitioner and respondent No.2 are living separately from
each other since 2010 due to differences between them. It is also stated
that civil as well as criminal cases filed by them against each other are
pending between the parties in different courts at Jammu.

3. It has further been stated that both petitioner and respondent No.2 had
filed a joint petition under Section 15 of JK Hindu Marriage Act in the
Court of learned Additional District Judge (Matrimonial Court) Jammu,
for a decree of divorce by mutual consent, where they had also furnished

CRMC No.669/2018 Page 1 of 8
their statements by way of affidavits to the effect that they shall withdraw
all the cases filed by them against each other from all the Courts and make
statements before the Courts for the disposal of the cases as compromised.
Copies of the statements so filed by way of affidavits dated 15.09.2018
are placed on record as annexure-C. The said petition filed under Section
15 came to be disposed of by the learned Additional District Judge vide
order dated 18.09.2018 whereby the marriage between the petitioner and
respondent No.2 was dissolved with mutual consent.

4. Petitioner has annexed with the petition an affidavit of respondent No.2
stating therein that she does not want to pursue the criminal Challan titled
State Vs. Rinkash Singh u/s 498-A, 406 RPC against the petitioner i.e.
Rinkash Singh, pending in the Court of Special Municipal Mobile
Magistrate, Jammu, as she and petitioner have mutually dissolved their
marriage u/s 15 HM Act and nothing stands outstanding against each
other.

5. Instant petition is supported by an affidavit of the petitioner.

6. Pursuant to the order dated 23.10.2018, Registrar Judicial has recorded the
statements of the petitioner and respondent No.2. The same are placed on
record, which read as under:-

Statement of Rinkash Singh Rakwal (petitioner), Age: 41 years; S/o
Sh. Rattan Singh Rakwal, R/o H.No.1, Lane No.1, Chinore, Jammu,
on oath today i.e. 29.10.2018

That by virtue of judgment- decree dated 18.09.2018, the divorce petition
filed by me and respondent No.2 before the learned Additional District
Judge (Matrimonial Court), Jammu, has been decided by mutual consent
u/s 15 of the Hindu Marriage Act. So keeping in view the above said
judgment-decree, I pray the Hon’ble Court to quash the Criminal Challan

CRMC No.669/2018 Page 2 of 8
No.8/2011 titled State Vs. Rinkash Singh u/s 498-A, 406 RPC against me
pending before the Special Municipal Magistrate, Jammu.

Statement of Shivani Kotwal (respondent No.2), Age:35; D/o Sh. Ram
Kotwal R/o H.No.1, Lane No.1, Talab Tillo, Jammu, on oath today i.e.
29.10.2018.

That in view of the judgment decree dated 18.09.2018, whereby the
divorce petition filed by me and petitioner before the learned Additional
District Judge (Matrimonial Court), Jammu, has been decided by mutual
consent u/s 15 of the Hindu Marriage Act, I do not want to pursue the
Criminal Challan titled State Vs. Rinkash Singh u/s 498-A, 406 RPC
against the petitioner pending before the Special Municipal Magistrate,
Jammu and I have no objection in case the Hon’ble Court quash the said
Challan.

7. Bare perusal of the statements placed on record, it is evident that parties
have entered into a compromise whereby they have settled their
differences.

8. In case titled Ram Singh anr. Vs. State of Rajasthan reported in 11
(2005) DMC 412, it is held as under :

“6. I have given my anxious consideration to the above arguments and
have gone through the case laws cited at the Bar. It is well settled that
while exercising inherent jurisdiction the Court should encourage genuine
settlements of the cases arising out of matrimonial disputes. While
considering the object of introducing Chapter XX-A containing Section
498A, Their Lordships of the Supreme Court in V.S. Joshi and Ors. v.
State of Haryana, , have observed as under:

“There is no doubt that the object of introducing Chapter XX-A
containing Section 498A in the Indian Penal Code was to prevent 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 hypertechnical view would be counter-productive
and would act against interest of women and against the object for which

CRMC No.669/2018 Page 3 of 8
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 XX-
A of the Indian Penal Code.”

7. The present case also arises out of the matrimonial dispute between the
parties. Undisputedly the parties have entered into a written compromise
and are living peacefully. However, the question that still emerges for
consideration of this Court is whether after conviction having been
recorded, the offence can be ordered to be compounded and/or the
criminal proceedings pending in the Appellate Court can be ordered to be
dropped?

8. In O.P. Dholikia’s case (supra), Their Lordships of the Supreme Court
while dealing with a case arising out of offence under Section 138 of the
Negotiable Instruments Act, considered the question as to what is the
proper stage for compounding the offence. Their Lordships found force
with the argument of the Counsel for the stage that conviction and
sentence having been upheld by all the three Forums, the Apex Court need
not interfere with the same as it was open for the parties to enter into a
compromise at an earlier stage when the appeal was pending. However,
taking into consideration the nature of offence in question and the fact that
complainant and the accused had already entered into a compromise,
Their Lordships thought it appropriate to grant permission, in the
peculiar facts and circumstances of the present case to compound and
accordingly annulled the conviction and sentence under Section 138 of the
Act.

9. In Govinda’s case (supra) the accused were convicted and sentenced for
offence under Section 498A, I.P.C. and appeal against conviction was
pending before the Appellate Court. During pendency of appeal, the
parties entered into a compromise and ultimately invoked inherent
jurisdiction of this Court under Section 482, Cr.P.C. This Court refused to
invoke inherent jurisdiction for assuming direction to compound the
offence under Section 489A, I.P.C. But considering the law laid down by
the Apex Court in series of decisions referred to in the judgment, this
Court ordered for quashing the proceedings in appeal holding that
continuance of proceedings would be an abuse of process of law and would
not be in the interest of justice.

10. Evidently thus, the present case is squarely covered by the decision of
this Court in Govind and Anr. v. State of Rajasthan, (supra). Therefore,
keeping in view the facts and circumstances of the case as stated
hereinabove, the continuance of proceedings in appeal pending before the
Appellate Court, in my considered view would not be in the interest of
justice and keeping the proceedings pending would amount to abuse of the
process of Court.

11. In the result, this petition is allowed. The proceedings of Criminal
Appeal No. 28/2003 Ram Singh and Anr. v. State of Rajasthan, filed
against the judgment and order dated 10.12.2003, pending in the Court of

CRMC No.669/2018 Page 4 of 8
Additional Sessions Judge No. 2, Deeg, District Bharatpur are quashed.
Necessarily the conviction and sentence under Section 498A, I.P.C. under
the judgment and order dated 10.12.2003 passed by the Trial Court stands
annulled.

9. In case titled Central Bureau of Investigation vs Sadhu Ram Singla
ors reported in 2017 AIR (SC) 1312. It is apt to reproduce paragraphs 8 to
16 as under:

“8. We have heard learned Additional Solicitor General appearing for
the CBI and learned senior counsel appearing for the respondents at
length and carefully examined the materials placed on record. We have
also taken notice of the fact that the counsel for the appellant in High
Court had sought time for filing the reply but no reply was filed. We have
also taken notice of the fact that the High Court while quashing the said
FIR and consequential proceedings, has relied on the Full Bench judgment
of that High Court in the case of Kulwinder Singh Ors Vs. State of
Punjab Anr., 2007 (4) CTC 769, in which reliance was placed on the
judgment delivered by this Court in the case of Mrs. Shakuntala Sawhney
Vs. Mrs. Kaushalya Sawhney Ors., (1980) 1 SCC 63.

9. Learned Additional Solicitor General appearing for the CBI has
drawn our attention to the decision of this Court in Manoj Sharma Vs.
State Ors., (2008) 16 SCC 1, wherein it was observed by this Court:

“22. Since Section 320 CrPC has clearly stated which
offences are compoundable and which are not, the High
Court or even this Court would not ordinarily be justified in
doing something indirectly which could not be done directly.
Even otherwise, it ordinarily would not be a legitimate
exercise of judicial power under Article 226 of the
Constitution or under Section 482 CrPC to direct doing
something which CrPC has expressly prohibited. Section
320(9) CrPC expressly states that no offence shall be
compounded except as provided by that Section. Hence, in
my opinion, it would ordinarily not be a legitimate exercise
of judicial power to direct compounding of a non-
compoundable offence.”

10. We further wish to supply emphasis on the judgment delivered by
this Court in the case of State of Tamil Nadu Vs. R. Vasanthi Stanley
Anr., (2016) 1 SCC 376, wherein it was observed:

CRMC No.669/2018 Page 5 of 8

“15. As far as the load on the criminal justice dispensation
system is concerned it has an insegregable nexus with speedy
trial. A grave criminal offence or serious economic offence
or for that matter the offence that has the potentiality to
create a dent in the financial health of the institutions, is not
to be quashed on the ground that there is delay in trial or
the principle that when the matter has been settled it should
be quashed to avoid the load on the system. That can never
be an acceptable principle or parameter, for that would
amount to destroying the stem cells of law and order in
many a realm and further strengthen the marrows of the
unscrupulous litigations. Such a situation should never be
conceived of.”

11. Further reliance was placed on the decision of this Court in the
case of Central Bureau of Investigation Vs. A. Ravishankar Prasad
Ors., (2009) 6 SCC 351, wherein it was held:

“39. Careful analysis of all these judgments clearly reveals
that the exercise of inherent powers would entirely depend
on the facts and circumstances of each case. The object of
incorporating inherent powers in the Code is to prevent
abuse of the process of the court or to secure ends of
justice.”

12. Lastly, reliance was placed upon another judgment of this Court in
Central Bureau of Investigation Vs. Maninder Singh, (2016) 1 SCC 389,
wherein it was held by this Court:

“19. In this case, the High Court while exercising its
inherent power ignored all the facts viz. the impact of the
offence, the use of the State machinery to keep the matter
pending for so many years coupled with the fraudulent
conduct of the respondent. Considering the facts and
circumstances of the case at hand in the light of the decision
in Vikram Anantrai Doshi case, (2014) 15 SCC 29, the order
of the High Court cannot be sustained.”

13. Resisting the aforesaid submissions it was canvassed by Mr.
Bishwajit Bhattacharya, learned senior counsel appearing for the
respondents that High Court has judiciously and rightly considered the
facts and circumstances of the present case. Relying upon the judgment of
this Court in Gian Singh Vs. State of Punjab Anr., (2012) 10 SCC 303,
learned senior counsel appearing for the respondents strenuously urged
that the offences in the present case are not heinous offences. He further

CRMC No.669/2018 Page 6 of 8
drew our attention towards the relevant part of Full Bench judgment of
the High Court in Kulwinder Singh Ors. Vs. State of Punjab Anr.
(supra), which was reproduced in the impugned judgment and the same is
reproduced hereunder:

“26. In Mrs. Shakuntala Sawhney v. Mrs. Kaushalya
Sawhney Ors.,(1980) 1 SCC 63, Hon’ble Krishna Iyer, J.
aptly summed up the essence of compromise in the following
words :-

The finest hour of justice arrives propitiously when parties,
despite falling apart, bury the hatchet and weave a sense of
fellowship or reunion.

27. The power to do complete justice is the very essence of
every judicial justice dispensation system. It cannot be
diluted by distorted perceptions and is not a slave to
anything; except to the caution and circumspection, the
standards of which the Court sets before it, in exercise of
such plenary and unfettered power inherently vested in it
while donning the cloak of compassion to achieve the ends of
justice. No embargo, be in the shape of Section 320(9) of the
Cr.P.C. or any other such curtailment, can whittle down the
power under Section 482 of the Cr.P.C.”

14. Since the present case pertains to the crucial doctrine of judicial
restraint, we are of the considered opinion that encroaching into the right
of the other organ of the government would tantamount clear violation of
the rule of law which is one of the basic structure of the Constitution of
India. We wish to supply emphasis on para 21 of the Manoj Sharma’s case
(supra) which is as follows:

“21. Ordinarily, we would have agreed with Mr. B.B. Singh.
The doctrine of judicial restraint which has been
emphasised repeatedly by this Court e.g. in Aravali Golf
Club v. Chander Hass (2008) 1 SCC 683 and Govt. of A.P. v.
P. Laxmi Devi (2008) 4 SCC 720, restricts the power of the
Court and does not permit the Court to ordinarily encroach
into the legislative or executive domain. As observed by this
Court in the above decisions, there is a broad separation of
powers in the Constitution and it would not be proper for
one organ of the State to encroach into the domain of
another organ.”

CRMC No.669/2018 Page 7 of 8

15. Having carefully considered the singular facts and circumstances of
the present case, and also the law relating to the continuance of criminal
cases where the complainant and the accused had settled their differences
and had arrived at an amicable arrangement, we see no reason to differ
with the view taken in Manoj Sharma’s case (supra) and several decisions
of this Court delivered thereafter with respect to the doctrine of judicial
restraint. In concluding hereinabove, we are not unmindful of the view
recorded in the decisions cited at the Bar that depending on the attendant
facts, continuance of the criminal proceedings, after a compromise has
been arrived at between the complainant and the accused, would amount
to abuse of process of Court and an exercise in futility since the trial would
be prolonged and ultimately, it may end in a decision which may be of no
consequence to any of the parties.”

10. In view of the above law, this petition is allowed. Challan bearing
No.08/Challan dated 14.05.2011 produced by the Police Station Women
Cell, Jammu in FIR No.54/2010 dated 03.12.2010 pending before the
Court of Special Municipal Mobile Magistrate, Jammu, is quashed.

11. Disposed of.

(Sanjay Kumar Gupta)
Judge
Jammu
19.11.2018
Narinder

CRMC No.669/2018 Page 8 of 8

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