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Sombir Dagar & Ors vs The State ( Govt Of Nct Of Delhi) & … on 5 April, 2021

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 05th April, 2021
IN THE MATTER OF:
+ CRL.M.C. 314/2015
SOMBIR DAGAR ORS ….. Petitioners
Through None
versus
THE STATE (GOVT OF NCT OF DELHI) ANR….. Respondents
Through Ms. Meenakshi Chauhan, APP for the
State.
Mr. Vipul Goel, Advocate for
respondent No.2/Applicant.
AND
+ CRL.M.C. 315/2015
SOMBIR DAGAR ….. Petitioner
Through None
versus
THE STATE (GOVT OF NCT OF DELHI) ANR….. Respondents
Through Ms. Meenakshi Chauhan, APP for the
State.
Mr. Vipul Goel, Advocate for
respondent No.2/Applicant.
CORAM:
HON’BLE MR. JUSTICE SUBRAMONIUM PRASAD

SUBRAMONIUM PRASAD, J.

CRL.M.A.705/2021 (by respondent No.2) in CRL.M.C. 314/2015
CRL.M.A.678/2021 (by respondent No.2) in CRL.M.C. 315/2015

1. These applications have been filed for recalling of order dated

CRL.M.C. 314/2015 and others Page 1 of 16
28.01.2015 passed in CRL.M.C. 314/2015 and CRL.M.C 315/2015.

2. CRL.M.C. 314/2015 is directed against F.I.R. No. 412/14 registered
at Police Station Vasant Vihar, New Delhi for offences under
Sections
498A/
406/34 IPC.

3. CRL.M.C. 315 is directed against F.I.R. No. 601/14 registered at
Police Station Saket, New Delhi for offences under
Sections 323/328/506
IPC.

4. These petitions arise out of the matrimonial disputes between the
petitioner No.1 and the respondent No.2. The marriage of the petitioner
No.1 and the respondent No. 2 was solemnized according to Hindu Rites
Customs and ceremonies at Katwaria Sarai, New Delhi on 30.04.2012 and a
child was born on 23.09.2013. Disputes arose between the parties and F.I.R.
No. 412/14 was registered at Police Station Vasant Vihar, New Delhi for
offences under
Sections 498A, 406, 34 IPC. Matter was referred to
mediation and a settlement was arrived at between the parties. Both the
parties amicably resolved their mis-understandings and decided to live
together again as husband and wife. Noticing that the petitioner and the
respondent are happily residing together since 27.08.2014, this Court by an
order dated 28.01.2015, on the basis of the mediation settlement and after
noticing the fact that the petitioners are living together, quashed the two
FIRs i.e. FIR No.412/2014, under
Sections 498-A/406/34 of IPC registered
at Police station Vasant Vihar, Delhi [in CRL.M.C.314/2015] and FIR
No.601/2014 under
Sections 323/328/506 of IPC registered at P.S. Saket,
New Delhi [in CRL.M.C.315/2015]. It was noted in the said order that if the
marriage of respondent No.2 with petitioner-husband again runs into rough
weather, then this order will not stand in her way to have recourse to law.

CRL.M.C. 314/2015 and others Page 2 of 16

5. The instant applications have been filed for recalling the order dated
28.01.2015 in CRL.M.C.314/2015 and in CRL.M.C.315/2015 on the
ground that after the compromise the applicant has been treated with utmost
cruelty and the order dated 28.01.2015 has been obtained by the petitioners
by giving false assurances to the Court.

6. It is stated in the present application that after the FIRs were quashed
second child was born and soon after the delivery of second child, the
applicant/respondent No. 2 was humiliated and was severely beaten up by
the petitioners. Respondent No. 2 was given a severe beating on 01.10.2015
and was thrown out from her matrimonial house, MLC was conducted, FIR
No. 0017/ 2016 dated 01.03.2016 under
Sections 506 IPC at P.S. South
Campus was registered on the complaint of the respondent No.2. The
applicant/respondent No. 2 stayed for two years in her parental house as she
had been thrown out of her matrimonial house by the petitioners. It is stated
that with the intervention of Mediation Cell, Patiala House Courts the
applicant/respondent No. 2 went back to her matrimonial house in the year
2017. The applicant/respondent No. 2 has filed a case under Protection of
Women from
Domestic Violence Act, 2005. A petition for maintenance was
also filed by respondent No.2 against the petitioner. With the intervention of
the family members, the applicant/respondent No. 2 was once again forced
to compromise with the petitioner and the applicant/respondent No. 2 had to
withdraw her complaints. It is stated that on 30.08.2019, the petitioner gave
a severe beating to the respondent No.2. On 19.11.2019, petitioner No.1,
petitioner No. 2 (father- in-law of the respondent No. 2), and petitioner No.3
Smt. Shakuntala started beating the applicant/respondent No. 2 mercilessly.
MLC was conducted and FIR No.0671/2019 dated 19.11.2019 under

CRL.M.C. 314/2015 and others Page 3 of 16
Sections 323/ 506 IPC was lodged at P.S. Sonipat City. The petitioner No. 1
was arrested on 19.11.2019. Thereafter, petitioner No.3 and petitioner No.2
along with the petitioner’s brother-in-laws namely Sh Jagbir and Sh. Tarun
Thakran forced the parents of the applicant/respondent No.2 to compromise
once again in order to get bail for the petitioner. It is stated that on
29.02.2020, the applicant/respondent No. 2 was once again beaten up by
petitioner Nos.1 to 3. The applicant/respondent No.2 filed a police complaint
at Police Chowki Court Complex, Sonipat. On 29.02.2020, petitioner No.1
was enlarged on bail, petitioner Nos.2 3 forced the applicant/respondent
No.2 once again to compromise and live with the petitioner. As per the
compromise, it was agreed that the applicant/respondent No.2 alongwith the
petitioner No.1 and children would stay on the first Floor. It is stated that on
01.03.2020, the petitioners and other in-laws alongwith some other persons
abused and molested the applicant/respondent No.2 , tore her clothes in
front of her children. It is stated that on 04.03,2020, the applicant/respondent
No.2 along with her children had come to her maternal house in Delhi for
vacation. The petitioner No.3 filed a false police complaint bearing
No.1046P1 dated 06.03.2020, against the applicant/respondent No.2 and her
parents at Crime Against Women Cell as petitioner No.2 is a Sub-Inspector
posted at Sonipat, Haryana. The complaint was closed as all the allegations
were found to be false. It is stated that on 11.03.2020, when the
applicant/respondent No.2 went back home at Sonipat, she found that the
petitioner No.3 had changed the locks and the applicant/respondent No.2
had to return back to Delhi as she was not permitted to enter her residence. It
is stated that on 16.03.2020, in the bail proceedings, the
applicant/respondent No.2 was informed by the learned Chief Judicial

CRL.M.C. 314/2015 and others Page 4 of 16
Magistrate, Sonipat that in CRM-M-54815/2019, which is pending before
the High Court of Punjab Haryana, the High Court had directed the Trial
Court to state whether the petitioner had filed a compromise deed for
quashing of FIR No.0671/2019 dated 19.11.2019, under
Sections 323/506
IPC registered at Police Station Sonipat City and whether the
applicant/respondent No.2 has voluntarily signed on the quashing as well as
compromise Deed. The applicant found that the petitioner had without the
consent of the applicant filed an application for quashing of FIR
No.0671/2019 dated 19.11.2019, under
Sections 323/ 506 IPC registered at
Police Station Sonipat City before High Court of Punjab and Haryana. The
applicant/respondent No.2 informed the Chief Judicial Magistrate, Sonipat
that the petitioner had forcefully made her to write certain lines on a paper,
and made her sign on 4-5 blank papers, which is now being misused before
the High Court of Punjab Haryana. It is stated that the
applicant/respondent No.2 came to know that one Ms. Surabhi Kaushik,
Advocate had appeared and accepted notices on behalf of the
applicant/respondent No.2 in the High Court of Punjab Haryana. It is
stated that the applicant/respondent No.2 has never authorized anyone to
appear on behalf of her before the High Court of Punjab Haryana. She
was not even aware of the quashing petition filed by the petitioner No.1. It is
stated that the petitioner and his father are constantly threatening the
applicant. It is stated that on 02.06.2020, at around 06.30 P:M. six police
officials from Women Cell, Sonipat City came to the applicant/respondent
No.2’s house and forcefully took the applicant/respondent No.2 into custody
and gave the custody of two minor children, who are aged 6.5 years and 5
years respectively, to the petitioner No.1. It is stated that at around 10:00

CRL.M.C. 314/2015 and others Page 5 of 16
PM, the applicant/respondent No. 2 was asked to leave the Women Cell on
her own. It is stated that when the applicant/respondent No.2 refused to
leave, the police officials arrested her and an FIR being FIR No.310/2020
was lodged against her at Police Station Sonipat City. On 03.06.2020, the
applicant/respondent No.2 was enlarged on bail and all her jewellery and
cash has been taken over by the petitioner. The applicant/respondent No.2’s
father emailed a complaint to the Hon’ble the Chief Justice of High Court of
Punjab Haryana on which a suo motu cognizance has been taken by the
High Court of Punjab Haryana and a writ of Habeas Corpus was
registered vide CRWP-3813/2020.

7. In these circumstances, the applicant has filed the present applications
on the ground that the order dated 28.01.2015 was obtained on false
statements.

8. Mr. Vipul Goel, learned counsel for the applicant states that the
applicant/respondent No.2 has been taken for ride. He would state that since
the FIRs were quashed, the respondent No.2 has been beaten, humiliated and
thrown out of her house. He would state that the petitioners have committed
a fraud on the respondent No.2 and this Court by stating that all the disputes
have been resolved. It is argued that the sole purpose of compromise was to
get the FIRs quashed. The short question which arises for consideration is
whether the application is maintainable in view of the bar under
Section 362
Cr.P.C. Section 362
Cr.P.C reads as under:

“362. Court not to alter judgement. Save as otherwise
provided by this Code or by any other law for the time
being in force, no Court, when it has signed its
judgment or final order disposing of a case, shall alter
or review the same except to correct a clerical or

CRL.M.C. 314/2015 and others Page 6 of 16
arithmetical error.”

9. Learned counsel for the applicant places reliance on Sanjeev Kapoor
v. Chandana Kapoor, (2020) 13 SCC 172, wherein the Supreme Court while
dealing with cases arising out of complaints made under
Section 125 Cr.P.C
observed as under:

“19. The legislative scheme as delineated by Section
369 of the Code of Criminal Procedure, 1898, as well
as legislative scheme as delineated by
Section 362 of
the Code of Criminal Procedure, 1973 is one and the
same. The embargo put on the criminal court to alter
or review its judgment is with a purpose and object.
The judgments of this Court as noted above,
summarised the law to the effect that criminal justice
delivery system does not clothe criminal court with
power to alter or review the judgment or final order
disposing of the case except to correct the clerical or
arithmetical error. After the judgment delivered by a
criminal court or passing of the final order disposing
of the case the court becomes functus officio and any
mistake or glaring omission is left to be corrected only
by appropriate forum in accordance with law.

22. We need to first examine as to whether the orders
passed in the present case are covered by the exception
i.e. “save as otherwise provided by
the Code”. Section
362 CrPC, thus, although put an embargo on the
criminal court to alter or review its judgment or final
order disposing of the case but engrafted the
exceptions as indicated therein. The legislature was
aware that there are and may be the situations where
altering or reviewing of criminal court judgment is
contemplated in
the Code itself or any other law for the
time being in force. We since in the present case are
concerned only with
Section 125 CrPC, we need to
examine as to whether
Section 125 CrPC in any

CRL.M.C. 314/2015 and others Page 7 of 16
manner relaxed the rigour of
Section 362 CrPC.

23. Before we proceed to look into the legislative
scheme of
Section 125 CrPC, we need to notice few
rules of interpretation of statutes when the court is
concerned with the interpretation of a social justice
legislation.
Section 125 CrPC is a social justice
legislation which orders for maintenance for wives,
children and parents. Maintenance of wives, children
and parents is a continuous obligation enforced……..”

10. Learned counsel for the applicant also places reliance on a decision of
single Judge of Madras High Court in CRL.O.P. No.6231/2018, CRL.O.P.
No.6232/2018 CRL.O.P. No.6322/2018 titled as G. Sakthi Saravanan v.
S. Arun wherein the Madras High Court while dealing with the powers of
Section 362 Cr.P.C observed as under:

“28. Crime against the State and general public should
be viewed differently from the crime against the
individual. In this case, due to suppression of facts by
the parties concerned, this Court has been mislead to
quash the criminal proceedings vide its order dated
01.03.2018. Therefore, this Court recalls the order
passed in Crl.O.P. Nos. 6231, 6232 and 6322 of 2015
as void and non est in the eye of law.”

11. Learned counsel for the applicant also places reliance on the
judgment of Kerala High Court in
Sudheer Kumar @ Sudheer v.
Manakkandi M.K. Kunhiraman Anr., 2007 SCC OnLine Ker 147.

12. The learned counsel for the applicant also relies on the judgment of
Supreme Court in S. Ramesh Ors. v. State Rep. by Inspector of Police
Ors., CRIMINAL APPEAL No.585/2019, wherein the Supreme Court
upheld the order of the High Court exercising its power under Section 482

CRL.M.C. 314/2015 and others Page 8 of 16
Cr.P.C in reopening the final judgments.

13. The present application has been filed on the basis of events which
have transpired subsequent to the orders dated 28.01.2015. The judgment of
the Supreme Court in
Sanjeev Kapoor v. Chandana Kapoor (supra) does not
apply to the facts of this case. That case arose in matrimonial proceedings
arising under
Section 125 Cr.P.C. An order under Section 125 Cr.P.C is not
hit by
Section 362 Cr.P.C for the reason that an order under Section 125
Cr.P.C fixing maintenance can be varied. The Supreme Court entertained the
application on the ground that an order under
Section 125 Cr.P.C is not a
final order and that the Court after passing of the judgment or the final order
in a proceeding under
Section 125 Cr.P.C does not become functus officio.
There is no discussion on
Section 362 CrPC in S. Ramesh Ors. v.
State(supra) and cannot be relied on by the applicant.

14. A reading of Section 362 CrPC shows that it bars a Court from
altering a judgment or final order except to correct a clerical or arithmetical
error.
Section 362 Cr.P.C itself provides the circumstances where petitions
for review of orders which have attained finality can be entertained.
Section
362 Cr.P.C begins with the words “Save as otherwise provided by this Code
or by any other law for the time being in force”. The above expression
shows that the rigor contained in
Section 362 Cr.P.C can be relaxed only
i. when it is provided by
the Code itself;

or
ii. permitted by any other law for the time in force
or
iii. There is a clerical or arithmetical error

CRL.M.C. 314/2015 and others Page 9 of 16

15. While dealing with the practice of entertaining miscellaneous
petitions in criminal cases after disposal of main petition by the High Court
while exercising jurisdiction under
Section 226/227 or Section 482 Cr.P.C
the Supreme Court in
Nazma v. Javed, (2013) 1 SCC 376, observed as
under:

“11. The practice of entertaining miscellaneous
applications in disposed of writ petitions was
deprecated by this Court in Hari Singh Mann [(2001) 1
SCC 169 : 2001 SCC (Cri) 113] . Reference to the
following paragraph of that judgment is apposite:
(SCC p. 173, para 8)

“8. We have noted with disgust that the
impugned orders were passed completely
ignoring the basic principles of criminal law. No
review of an order is contemplated under
the
Code of Criminal Procedure. After the disposal
of the main petition on 7-1-1999, there was no lis
pending in the High Court wherein the
respondent could have filed any miscellaneous
petition. The filing of a miscellaneous petition
not referable to any provision
of the Code of
Criminal Procedure or the rules of the court,
cannot be resorted to as a substitute of fresh
litigation. The record of the proceedings
produced before us shows that directions in the
case filed by the respondents were issued
apparently without notice to any of the
respondents in the petition. Merely because
Respondent 1 was an advocate, did not justify the
issuance of directions at his request without
notice of the other side. The impugned orders
dated 30-4-1999 and 21-7-1999 could not have
been passed by the High Court under its inherent
power under
Section 482 of the Code of Criminal
Procedure. The practice of filing miscellaneous

CRL.M.C. 314/2015 and others Page 10 of 16
petitions after the disposal of the main case and
issuance of fresh directions in such
miscellaneous petitions by the High Court are
unwarranted, not referable to any statutory
provision and in substance the abuse of the
process of the court.”

We are sorry to note that in spite of the clear
pronouncement of law by this Court, still, the High
Courts are passing similar orders, which practice has
to be deprecated in the strongest terms. Of late, we
notice that the High Courts are entertaining writ
petitions under Articles 226 and 227 of the
Constitution, so also under
Section 482 CrPC and
passing and interfering with various orders granting or
rejecting request for bail, which is the function of
ordinary criminal court. The jurisdiction vested on the
High Court under Articles 226 and 227 of the
Constitution as well as
Section 482 CrPC are all
exceptional in nature and to be used in most
exceptional cases. The jurisdiction under
Section 439
CrPC is also discretionary and it is required to be
exercised with great care and caution.”

(emphasis supplied)

Even though the said judgment was pronounced while dealing with bail
applications but the principle that was applied was regarding the power of
the High Court to review its decisions and pass orders on matters which had
attained finality.

16. In Sooraj Devi v. Pyare Lal, (1981) 1 SCC 500, the Supreme Court
observed as under:

“5. The appellant points out that he invoked the
inherent power of the High Court saved by
Section
482 of the Code and that notwithstanding the
prohibition imposed by Section 362 the High Court

CRL.M.C. 314/2015 and others Page 11 of 16
had power to grant relief. Now it is well settled that
the inherent power of the court cannot be exercised
for doing that which is specifically prohibited by
the
Code (
Sankatha Singh v. State of U.P. [AIR 1962 SC
1208 : 1962 Supp 2 SCR 817 : (1962) 2 Cri LJ 288] ).
It is true that the prohibition in
Section 362 against
the court altering or reviewing its judgment is subject
to what is “otherwise provided by this Court or by any
other law for the time being in force”. Those words,
however, refer to those provisions only where the
court has been expressly authorised by
the Code or
other law to alter or review its judgment. The
inherent power of the court is not contemplated by the
saving provision contained in
Section 362 and,
therefore, the attempt to invoke that power can be of
no avail.” (emphasis supplied)

17. The Supreme Court in Simrikhia v. Dolley Mukherjee, (1990) 2 SCC
437, has observed as under:

“3. The learned counsel for the appellant contended
before us that the second application under
Section
482 CrPC was not entertainable, the exercise of power
under
Section 482, on a second application by the
same party on the same ground virtually amounts to
the review of the earlier order and is contrary to the
spirit of
Section 362 of the CrPC and the High Court
was, therefore, clearly in error in having quashed the
proceedings by adopting that course. We find
considerable force in the contention of the learned
counsel. The inherent power under
Section 482 is
intended to prevent the abuse of the process of the
court and to secure ends of justice. Such power cannot
be exercised to do something which is expressly barred
under
the Code. If any consideration of the facts by
way of review is not permissible under
the Code and is
expressly barred, it is not for the court to exercise its
inherent power to reconsider the matter and record a

CRL.M.C. 314/2015 and others Page 12 of 16
conflicting decision. If there had been change in the
circumstances of the case, it would be in order for the
High Court to exercise its inherent powers in the
prevailing circumstances and pass appropriate orders
to secure the ends of justice or to prevent the abuse of
the process of the court. Where there is no such
changed circumstances and the decision has to be
arrived at on the facts that existed as on the date of the
earlier order, the exercise of the power to reconsider
the same materials to arrive at different conclusion is
in effect a review, which is expressly barred under
Section 362.

xxxxx

5. Section 362 of the Code expressly provides that no
court when it has signed its judgment or final order
disposing of a case, shall alter or review the same
except to correct a clerical or arithmetical error save
as otherwise provided by
the Code. Section 482
enables the High Court to make such order as may be
necessary to give effect to any order under
the Code or
to prevent abuse of the process of any court or
otherwise to secure the ends of justice. The inherent
powers, however, as much are controlled by principle
and precedent as are its express powers by statute. If
a matter is covered by an express letter of law, the
court cannot give a go-by to the statutory provisions
and instead evolve a new provision in the garb of
inherent jurisdiction.

xxxxx

7. The inherent jurisdiction of the High Court cannot
be invoked to override bar of review under Section

362. It is clearly stated in Sooraj Devi v. Pyare Lal
[(1981) 1 SCC 500 : 1981 SCC (Cri) 188] , that the
inherent power of the court cannot be exercised for
doing that which is specifically prohibited by
the
Code. The law is therefore clear that the inherent
power cannot be exercised for doing that which
cannot be done on account of the bar under other

CRL.M.C. 314/2015 and others Page 13 of 16
provisions
of the Code. The court is not empowered to
review its own decision under the purported exercise
of inherent power. We find that the impugned order
in this case is in effect one reviewing the earlier order
on a reconsideration of the same materials. The High
Court has grievously erred in doing so. Even on
merits, we do not find any compelling reasons to
quash the proceedings at that stage.”

(emphasis supplied)

18. The purpose of Section 362 Cr.P.C is that once a Court delivers the
judgment that Court becomes functus officio and thereafter it cannot
reconsider or modify the judgment (refer
Sunil Kumar v. State of Haryana,
(2012) 5 SCC 398).

19. By an order dated 28.01.2015, this Court had quashed the FIRs on the
basis of a compromise. This Court had noted in the order that if the marriage
of respondent No.2 with petitioner/husband again runs into rough weather,
then the respondent No.2 herein can take appropriate recourse against him.
A perusal of the facts narrated above would show that the applicant has
taken appropriate steps and there are proceedings between the parties. The
contention of the applicant that the compromise was only a ruse to get the
proceedings quashed cannot be examined by this Court at this juncture. The
instant proceedings arises out of matrimonial disputes. It is the word of the
applicant against the word of the petitioner. No doubt the bar under
Section
362 Cr.P.C cannot be used by a party if it has played fraud on the Court by
producing false documents or when it has suppressed material facts which if
had been disclosed, the Court would never have used its power under
Section 482 Cr.P.C to quash the proceedings on the basis of a compromise.
The present case does not fall in any of the exceptions given in Section 362

CRL.M.C. 314/2015 and others Page 14 of 16
Cr.P.C. The fact that the applicant is alleging that she has been subjected to
cruelty post compromise has to be proved in the proceedings initiated by
her.

20. The judgment of the Madras High Court in G.Sakthi Saravanan
(supra) will also not apply to the facts of this case because the High Court in
that case found that there was suppression of facts because of which the
High Court was misled in quashing the criminal proceedings. In the present
case, the allegations are that pursuant to the order dated 28.01.2015 the
applicant has been treated with cruelty. The judgment of the Kerala High
Court in Sudheer Kumar (supra) would also not apply to the present case. In
that case the question which arose was whether an offence under
Section
138 of the Negotiable Instruments Act can be compounded after the
confirmation of the conviction passed by the Magistrate Court, by the
appellate court and High Court in revision? Whether an order passed by the
High Court in the criminal revision petition confirming the conviction can
be nullified by the High Court in a petition filed under
Section 482 of
Cr.P.C. noticing subsequent compromise of the case by the contesting
parties?

21. A perusal of the application would show that it is yet to be established
as to whether cruelty has been committed by the petitioners against the
respondent No.2. It cannot be said that the petitioner has misled the Court or
suppressed facts when both the parties came before the High Court and
pleaded that they have settled all their disputes and the proceedings against
the petitioner be quashed. As stated above the present proceedings are
pending between both the sides. This application cannot be used to short-
circuit other proceedings which are subsisting between the parties. In view

CRL.M.C. 314/2015 and others Page 15 of 16
of the bar under
Section 362 Cr.P.C the applications are not maintainable
and are accordingly dismissed.

SUBRAMONIUM PRASAD, J.

APRIL 05, 2021
Rahul

CRL.M.C. 314/2015 and others Page 16 of 16

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