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Sameer Khurana And Ors vs State Of Haryana on 7 February, 2019

CRA No.2668-SB of 2015 -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

*****

CRA No.2668-SB of 2015 (OM)
Date of Decision:07.02.2019

*****
Sameer Khurana and others
. . . . . Appellants

Vs.

State of Haryana
. . . . . Respondent

*****

CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN
HON’BLE MR.JUSTICE HARNARESH SINGH GILL

*****

Present: – Mr.Harkesh Manuja, Advocate,
for the appellants.

Mr.Surinder Singh Pannu, DAG, Haryana.

Mr.Shiv Kumar, Advocate,
for the complainant.

*****

RAKESH KUMAR JAIN, J. (ORAL)

This appeal has arisen from the order dated 29.5.2015 passed

by the Additional Sessions Judge, Faridabad by which appellants No.1 2

were held guilty under Sections 498A, 406 506 of the Indian Penal Code,

1860 [for short ‘the IPC’] and appellants No.3 4 were held guilty under

Sections 498A, 406, 506 354A of the IPC and the order dated 30.5.2015

by which all the appellants were sentenced separately, which is tabulated as

under: –

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Name of Offence Period of Fine Imprisonment
convict under which imprisonment imposed in default of
convict has fine
been
sentenced
Sameer 498A IPC Rigorous 5000/- Rigorous
Khuranna imprisonment imprisonment
for three years for one month
406 IPC Rigorous 5000/- Rigorous
imprisonment imprisonment
for two years for one month
506 IPC Rigorous 10000/- Rigorous
imprisonment imprisonment
for two years for one month

Name of Offence Period of Fine Imprisonment
convict under which imprisonment imposed in default of
convict has fine
been
sentenced
Vijay 498A IPC Rigorous 5000/- Rigorous
Kumari imprisonment imprisonment
for three years for one month
406 IPC Rigorous 5000/- Rigorous
imprisonment imprisonment
for two years for one month
506 IPC Rigorous 10000/- Rigorous
imprisonment imprisonment
for two years for one month

Name of Offence Period of Fine Imprisonment
convict under which imprisonment imposed in default of
convict has fine
been
sentenced
Rohit 498A IPC Rigorous 5000/- Rigorous
Khuranna imprisonment imprisonment
for three years for one month
406 IPC Rigorous 5000/- Rigorous
imprisonment imprisonment
for two years for one month
506 IPC Rigorous 10000/- Rigorous
imprisonment imprisonment
for two years for one month

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354-A IPC Rigorous 5000/- Rigorous
imprisonment imprisonment
for three years for one month

Name of Offence Period of Fine Imprisonment
convict under which imprisonment imposed in default of
convict has fine
been
sentenced
Suraj 498A IPC Rigorous 5000/- Rigorous
Khuranna imprisonment imprisonment
for three years for one month
406 IPC Rigorous 5000/- Rigorous
imprisonment imprisonment
for two years for one month
506 IPC Rigorous 10000/- Rigorous
imprisonment imprisonment
for two years for one month
354-A IPC Rigorous 5000/- Rigorous
imprisonment imprisonment
for three years for one month

The sentence awarded to all the appellants was ordered to run

concurrently.

After the conviction and sentence, the appellants were granted

bail by the trial Court and on 04.06.2015, while admitting the main appeal,

the interim bail granted by the trial Court was ordered to be extended by this

Court and vide order dated 10.7.2015 of this Court, the interim bail was

ordered to be further extended during the pendency of the appeal. The

appellants were tried in a case registered vide FIR No.689 dated 17.12.2013

under Sections 498A, 406, 354A, 506, 376 and 511 of the IPC at Police

Station Central, Faridabad. The Additional Sessions Judge, Faridabad while

convicting the appellants under various provisions of the IPC, acquitted

Rohit Khurana (appellant no.3) from the charges of Section 376 and 511 of

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the IPC. Consequently, Neha-wife of appellant No.1 also preferred an appeal

against the acquittal of appellant No.3 by way of CRA-D-1190-DB-2015

which was also ordered to be heard along with this appeal.

While this appeal was pending for adjudication, the appellants

moved an application bearing CRM-34317-2018 under Section 482 of the

Code of Criminal Procedure, 1973 [for short ‘the Cr.P.C.’] for setting aside

the order of conviction and sentence dated 29.5.2015 and 30.5.2015 as well

the FIR No.689 dated 17.12.2013 on the basis of which the prosecution was

initiated, on the ground that it was resulted on account of matrimonial

discord between the parties but since the complainant-Neha (wife of

appellant No.1) has settled all the disputes after taking a lumpsum amount of

`29,50,000/- and got the custody of the minor child (female) by way of a

compromise, reduced into writing on 19.5.2018, on the basis of which a

decree under Section 13-B of the Hindu Marriage Act, 1955 [for short ‘the

Act’] in regard to dissolution of her marriage with appellant No.1 was

granted by mutual consent.

On 14.1.2019, notice in the application was issued to the State

of Haryana for today.

Learned counsel for the State has not filed any reply to the

application rather there is no contest to the application and therefore, the

application is allowed at this juncture only to the extent of taking the

documents Annexures A1 to A6 on record.

CRM-31317-2018 is thus disposed of in this manner at this

juncture.

Since the matter has been settled between the parties, therefore,

the other appeal filed by Neha-wife of appellant No.1 bearing CRA-D-1190-

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DB-2015 which was also ordered to be listed along with this case is

withdrawn by her today.

Learned counsel for the appellants has submitted that insofar as

the present case is concerned, the appellants have been convicted maximum

for three years for the offences committed under Sections 498A and 354A of

the IPC and this Court has the inherent jurisdiction to quash the order of

conviction by invoking Section 482 of the Cr.P.C. It is further submitted that

out of 4 provisions of the IPC, 2 provisions of the IPC, namely, Sections 406

506 of the IPC are compoundable in terms of Section 320 of the Cr.P.C.

Sections 498A and 354A of the IPC are non-compoundable as these

provisions are not part of Section 320 of the Cr.P.C.

Learned counsel for the appellants has submitted that the

conviction and sentence of the appellants under Sections 498A and 354A of

the IPC can still be set aside/quashed by invoking the inherent powers of the

Court provided under Section 482 of the Cr.P.C. in view of the facts and

circumstances of this case because the FIR was registered by the wife of

appellant No.1 on account of cruelty meted out to her for demand of dowry

and Section 354A of the IPC was invoked on the allegation of abusing her

by Rohit Khurana (appellant No.1) and Suraj Khurana (appellant No.4). It is

submitted that although the appellants have been convicted and sentenced

and are in appeal but the parties have entered into a compromise which was

reduced into writing on 19.5.2018 in which it is provided that appellant No.1

would pay a lumpsum amount of `29,50,000/- to his wife towards full and

final settlement against her permanent alimony, maintenance allowance for

past, present and future and Istridhan etc. and would allow his wife to retain

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the custody of a child namely Prananya and appellant No.1 would not claim

the custody of the said child in future.

Apropos, they also decided to file a joint petition under Section

13B of the Act for dissolution of their marriage which was solemnized on

22.8.2010 as per Hindu rites at Karnal. They both suffered the statements on

oath at the first and second motion stage and maintained their stand of

parting ways in order to burry the hatchet forever but on the condition that

appellant No.1 would pay a lumpsum amount of `29,50,000/- to his wife,

who would also retain the custody of the only child (female). The petition

filed under Section 13B of the Act was allowed on 19.5.2018 and a decree of

divorce was also drawn. Thus the relationship of the parties as husband and

wife came to an end on 19.5.2018 by passing a decree of divorce. However,

still the sword of the order of conviction and sentence is hanging on the

heads of the members of the family of the husband/appellant No.1, who have

been convicted and sentenced by the learned trial Court under the aforesaid

provisions of the IPC. Since there are two offences which are

compoundable, namely, Sections 406 506 of the IPC, the Court do not

find any difficulty in entertaining the prayer made by the appellants under

Section 482 of the Cr.P.C. by moving the application bearing CRM-34317-

2018 which has been partly allowed in the earlier part of this order but the

difficulty is in regard to the setting aside of the order of conviction and

sentence awarded under Sections 354A and 498A of the IPC as these

provisions are non-compoundable.

In order to overcome this difficulty, learned counsel for the

appellants has referred to a Division Bench judgment of this Court rendered

in the case of “Sube Singh and another Vs. State of Haryana and another”

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CRA No.2668-SB of 2015 -7-

2013 (4) RCR (Criminal) 102 to contend that this Court has exercised its

power under Section 482 of the Cr.P.C. for the purpose of setting aside the

order of conviction and sentence passed by the trial Court while the appeal

was pending in the first Appellate Court.

Learned counsel for the respondent/State has not referred to any

decision to the contrary except for arguing that the provisions of Sections

498A 354A of the IPC are non-compoundable and the order of conviction

and sentence cannot be set aside.

We have heard learned counsel for the parties and perused the

record with their able assistance.

It would be relevant to refer to the fact that the order of

conviction passed by the learned Appellant Court is under 4 provisions of

the IPC i.e. under Sections 406, 498A, 506 354A of the IPC in which the

maximum period of punishment under Sections 406, 498A 354A of the

IPC is of 3 years and under Section 506 of the IPC is of 2 years whereas, the

punishment awarded to the appellants under Sections 498A 354A of the

IPC for 3 years and under Sections 406 506 of the IPC for 2 years. It is

further submitted that since the genesis of the registration of the FIR is the

matrimonial discord which has now been amicably settled between the

parties as the wife of appellant No.1 has entered into a written compromise

on 19.5.2018 and decided to withdraw all the cases filed against each other

and the said agreement has been acted upon because appellant No.1 has

handed over a draft of `29,50,000/- as a whole to his wife towards full and

final settlement of all her claims and also the claims of his daughter as a

right to live freely thereafter when the petition under Section 13B of the Act

was filed and allowed by the competent Court.

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CRA No.2668-SB of 2015 -8-

The question still would be as to whether criminal proceedings

can be quashed by the High Court in exercise of its power under Section 482

Cr.P.C. even after the accused was found guilty and convicted by the trial

Court though the matter is sub judice before the appellate Court?

The same question has been addressed by the Division Bench

of this Court rendered in the case of Sube Singh and another (Supra) and is

thus no more res integra. In the said case, the dispute was in regard to the

sale of the land by practicing fraud. There was conviction under the

provisions of Sections 420, 467 468 read with Section 120 of the IPC

and the appellants therein were sentenced for a period of maximum 2 years

and when their appeal was pending before the appellate Court, a petition

under Section 482 was filed before this court for quashing the order of

conviction and sentence on the basis of a settlement arrived at between the

parties.

The matter was placed before the learned Single Bench of this

Court, who had referred the matter to the Larger Bench by framing the

question referred to, which has been answered by the Division Bench after

referring to the facts and circumstances of the case much less taken into

consideration the fact that the sale deed in question was cancelled and

ownership of land was restored to the complainant therein and then it was

answered that though Section 420 of the IPC is compoundable and Sections

467, 468 120B of the IPC are non-compoundable but there is no statutory

embargo in invoking Section 482 of the Cr.P.C. even after conviction of

accused by the trial Court and during the pendency of the appeal, in the

interest of justice to burry the differences between the parties once for all.

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Thus taking into consideration the entire facts and

circumstances narrated hereinabove and the decision of this Court rendered

in the case of Sube Singh and another (Supra), we are of the considered

opinion that it is one such case in which the interference of this Court is

required in order to bring peace and harmony in the family of the appellants

as well as the complainant who have now settled all their disputes which

unfortunately had occurred because of the incompatibility between the

husband and wife which resulted into the conviction of parents-in-law as

well as the brother-in-law of the husband on account of the registration of

the FIR. The prayer thus made in CRM-34317-2018 for accepting the

appeal and quashing the orders of conviction and sentence dated 29.5.2015

and 30.5.2015 and also the proceedings which were initiated on account of

registration of FIR No.689 dated 17.12.2013 is hereby allowed and

conviction and sentence of the appellants and the proceedings initiated in

terms of the FIR referred hereinabove are hereby set aside.

(RAKESH KUMAR JAIN)
JUDGE

(HARNARESH SINGH GILL)
07.02.2019 JUDGE
Vivek

Whether speaking /reasoned : Yes/No
Whether Reportable : Yes/No

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