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Sri Munish Jain vs State Of U.P. And Another on 6 March, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Court No. – 74

Case :- APPLICATION U/S 482 No. – 5330 of 2012

Applicant :- Sri Munish Jain

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

Counsel for Applicant :- Ranjit Saxena,Ajay Kumar Pathak,V.S.Kushwaha

Counsel for Opposite Party :- Govt. Advocate,Arun Kumar Singh,Dhruv Narayan Misra,Digvijay Singh,R.P.Mishra,Rajul Bhargava

Hon’ble Ram Krishna Gautam,J.

1. This Application, under Section 482 / 483 Cr.P.C., has been filed by applicant with a prayer for setting aside the order dated 01.08.2009, passed in Criminal Case No. 987 of 2009, State Vs. Manish Jain, under Sections 498-A, 323, 504, 506, 408 I.P.C. and Section 3/4 Dowry Prohibition Act, P.S. Hathras Gata, District Mahamayanagar.

2. Learned counsel for applicant argued that there had been a mediation in between, wherein Delhi High Court passed following order:-

“…The respondent, who is present in Court, submits that she is ready and willing to withdraw all pending cases. In respect of the F.I.R. lodged against the petitioner under Section 498-A I.P.C. etc., she submits that the petition had been drafted and had been provided to the petitioner. The petitioner submits that he has filed his own petition before the Allahabad High Court under Section 482 of the Cr.P.C. being Crl. M.A. No.5330 of 2012. A copy of the order dated 10.2.2012 passed in those proceedings has been shown to the Court. It appears that the Court has directed the listing of the case after the expiry of four weeks time which was granted for filing of the counter affidavits. Since the period has expired, it appears that it is open to the parties to now again approach the Allahabad High Court to have the F.I.R. quashed. The parties agree that they would jointly move an application before the Allahabad for that purpose without any delay. The respondent states that she is willing to accompany the petitioner in the next week itself for moving the said application….”

It appears that this matrimonial dispute has been taken to mediation centre, Tis Hazari Court, Delhi wherein following compromise was filed:-

“The present suit for performance injunction has been referred by referral judge Shri Rakesh Kumar-I, CJ, Delhi and assigned to me for mediation. Process of Mediation explained. Matter discussed in joint session. After mutual discussions both the parties have reached at an amicable settlement on the following terms and condition:

(1) That the respondent is owner of flat in question i.e. B-403, Plot No.4 and 6, Sector 17, Sampada, Sea Wood Garden, Navi Mumbai. It is agreed between both the parties that one key of the flat would be remained with plaintiff and one key with defendant.

(2) That the Plaintiff can live in the above mentioned flat with her children and respondent can visit and see her children any time as and when he wishes and also he can live with their children and wife but for the first yer only wife will live with her children.

(3) Approximately Rs.20 lacs mutual fund, NSC, KVP and FDR’s in the name of petitioner which defendant has deposited and will give to petitioner upto 25 th January, 2010.

(4) Respondent will deposit Rs.1 lac in the bank account of petitioner on 01.01.2010.

(5) After getting job the respondent will give Rs.25,000/-to 30,000/- to the petitioner towards maintenance of wife and children.

(6) That the parties will withdraw the following cases:

(a) Complaint under sections 498-A, 406, 34 I.P.c. on the date fixed i.e. 16.2.2010.

(b) Complaint under Section 125 Cr.P.C. on the date fixed i.e. 17.2.2010.

(c) Complaint under Section 12 of D.V. Act on the date fixed i.e. 15.01.2010.

(d) Above mentioned suit on date fixed i.e.23.01.2010

(e) The respondent will withdraw complain case under Section 323 I.P.C. on the date fixed i.e. 06.01.2010.

(7) That both the parties will live happily from today and will not file any case/complaint against each other. This is the full and final settlement between the parties and all the above mentioned cases will be withdrawn on the date fixed in the concerned court.”

3. Despite this order, opposite party no. 2 has not filed joint affidavit before trial court. Applicant has given an accommodation for residence, in view of above mediation agreement, wherein she is residing. Huge amount of money has also been given to opposite party no. 2. But, in disregard of above settlement, entered in between, opposite party no. 2 is making hindrance in disposal of this case, whereas in a proceeding, in between, High Court of Delhi, has passed order on 06.09.2012 that respondent was present in Court and submitted that she is ready and willing to withdraw all pending cases in respect of F.I.R. lodged against petitioner under Section 498-A I.P.C. etc. She had submitted that mediation had been drafted and had been provided to the petitioner. The petitioner submitted that he had filed his own application before Allahabad High Court under Section 482 Cr.P.C. being Criminal Misc. Application No. 5330 of 2012. Meaning thereby, there had been mediation. Terms were agreed. It was there that this criminal proceeding shall be withdrawn. Opposite party no. 2 had made settlement before Delhi High Court in CONT. CAS(C) 789/2011 CM APPL. 19484 of 2011 CM APPL. 19793/12; Shikha Jain through Mr. A.K. Tripathi, Advocate Versus Munish Jain through Mr. Sunil Satyarthi, Advocate, but the recital entered in between is being retracted by opposite party no. 2, which she can never retract. This Court had ordered for disposal of this case, after disposal of Transfer Application, moved before apex court. The apex court vide order dated 21st February, 2017, passed in Transfer Petition (Criminal) No. 45 of 2016; Shikha Jain Vs. Munish Jain and another, has dismissed the transfer application with an option to the petitioner to approach this High Court for expeditious hearing of matter. Hence, now nothing remained for adjudication, but to quash the proceeding in view of agreement entered in mediation, in this matrimonial dispute, in view of law laid down in Gian Singh v. State of Punjab, (2012) 10 SCC 303.

4. Smt. Shikha Jain, in person, argued that mediation proceeding was taken at Delhi High Court. Therein agreement was there. Terms argued were very well there. The same were accepted before Delhi High Court, in above alleged proceeding. But this agreement was to reunite the family. It was very well written in mediation proceeding that husband will unite with his family and he will live together and on this assurance, above mediation agreement was occurred. But this was not complied with by husband. Money given was nothing new to be given, rather the fixed deposits and other securities, which were already in her name and were under custody of husband, were agreed and delivered to opposite party no. 2. A divorce petition by husband has been filed before Delhi High Court. Hence, mediation was denied by husband himself and in this criminal proceeding, no compromise was entered, in view of above defiance. Hence, this petition be dismissed.

5. Apex court in Gian Singh v. State of Punjab, (2012) 10 SCC 303 as well as many other cases has propounded that in matrimonial disputes, if the parties are amenable to compromise, then, even if offence, punishable under Section 498-A I.P.C. i.e. cruelty with regard to dowry, is not compoundable by Legislature, High Court of Judicature in exercise of inherent jurisdiction under Section 482 Cr.P.C. may quash proceeding for peaceful living of family. This power is there in High Court, under Section 482 Cr.P.C.

6. Section 320 of the Code articulates public policy with regard to the compounding of offences. It catalogues the offences punishable under IPC which may be compounded by the parties without permission of the Court and the composition of certain offences with the permission of the court. The offences punishable under the special statutes are not covered by Section 320. When an offence is compoundable under Section 320, abatement of such offence or an attempt to commit such offence or where the accused is liable under Section 34 or 149 of the IPC can also be compounded in the same manner. A person who is under 18 years of age or is an idiot or a lunatic is not competent to contract compounding of offence but the same can be done on his behalf with the permission of the court. If a person is otherwise competent to compound an offence is dead, his legal representatives may also compound the offence with the permission of the court. Where the accused has been committed for trial or he has been convicted and the appeal is pending, composition can only be done with the leave of the court to which he has been committed or with the leave of the appeal court, as the case may be. The revisional court is also competent to allow any person to compound any offence who is competent to compound. The consequence of the composition of an offence is acquittal of the accused. Sub-section (9) of Section 320 mandates that no offence shall be compounded except as provided by this Section. Obviously, in view thereof the composition of an offence has to be in accord with Section 320 and in no other manner.

7. Compounding of offence, as has been given by Legislature in Section 320 Cr.P.C., has given first table, wherein few of offences are to be compounded, upon the consent and option of victims. In the second table, offences are compoundable on the option of victim with permission of Court concerned. Those offences are of grave nature, but with permission of Court, offence given in second table, may be compounded. Regarding those offences, which have not been compoundable, under provision of Legislature, this law has been developed by apex court that where union of family seems to be probable and the dispute is of matrimonial nature and they are not of heinous offence, then in the interest of justice, with a view to avoid children from any ruin, out of dispute in between parents, the offence punishable under Section 498-A I.P.C or likewise, which are not of grave consequences and effect into society, may be quashed, in exercise of inherent jurisdiction of High Court acknowledged under Section 482 Cr.P.C. Under this provision of law, developed by Hon’ble Apex Court, quashing of proceeding for offence of dowry demand and cruelty etc., where compromise has been entered in between, are being made by High Court, though it is not within domain of trial court Magistrate or Sessions Judge.

8. Section 482 of the Code, as its very language suggests, saves the inherent power of the High Court which it has by virtue of it being a superior court to prevent abuse of the process of any court or otherwise to secure the ends of justice. It begins with the words, ”nothing in this Code’ which means that the provision is an overriding provision. These words leave no manner of doubt that none of the provisions of the Code limits or restricts the inherent power. The guideline for exercise of such power is provided in Section 482 itself i.e., to prevent abuse of the process of any court or otherwise to secure the ends of justice. As has been repeatedly stated that Section 482 confers no new powers on High Court; it merely safeguards existing inherent powers possessed by High Court necessary to prevent abuse of the process of any Court or to secure the ends of justice. It is equally well settled that the power is not to be resorted to if there is specific provision in the Code for the redress of the grievance of an aggrieved party. It should be exercised very sparingly and it should not be exercised as against the express bar of law engrafted in any other provision of the Code.

9. In different situations, the inherent power may be exercised in different ways to achieve its ultimate objective. Formation of opinion by the High Court before it exercises inherent power under Section 482 on either of the twin objectives, (i) to prevent abuse of the process of any court or (ii) to secure the ends of justice, is a sine qua non.

10. In the very nature of its constitution, it is the judicial obligation of the High Court to undo a wrong in course of administration of justice or to prevent continuation of unnecessary judicial process. This is founded on the legal maxim quando lex aliquid alicui concedit, conceditur et id sine qua res ipsa esse non potest. The full import of which is whenever anything is authorised, and especially if, as a matter of duty, required to be done by law, it is found impossible to do that thing unless something else not authorised in express terms be also done, may also be done, then that something else will be supplied by necessary intendment. Ex debito justitiae is inbuilt in such exercise; the whole idea is to do real, complete and substantial justice for which it exists. The power possessed by the High Court under Section 482 of the Code is of wide amplitude but requires exercise with great caution and circumspection.

11. It needs no emphasis that exercise of inherent power by the High Court would entirely depend on the facts and circumstances of each case. It is neither permissible nor proper for the court to provide a straitjacket formula regulating the exercise of inherent powers under Section 482. No precise and inflexible guidelines can also be provided.

12. In present case, the compromise agreed at Mediation Centre of Delhi High Court, is with specific recital that family will unite. Husband and wife along with children will reunite and all cases filed by wife including that civil case, wherein mediation was referred, will be withdrawn. There were all prospective acts to be taken, but this all was with prime condition of union of family, but admittedly union of family did not occur, rather a proceeding for divorce has been filed and is pending. Hence, the terms, for which, there was mediation and agreement, could not be fulfilled. The mediation proceeding took place on the reference made in a civil case by Civil Judge before Mediation Centre of Delhi High Court, wherein other cases were also taken in reference including present case. Parties entered in agreement that the family will unite. Husband and wife along with children will live together and wife will withdraw her all cases. Money etc., as per above agreement written, as above, was to be exchanged. But, admittedly the union of family could not be happened, rather divorce petition has been filed by husband. Hence, above mediation agreement could not be complied by both sides. But, in this criminal case, for compounding, as per Section 320 Cr.P.C., the fact of compromise, entered voluntarily and duly verified by Magistrate, in presence of both sides, is required and the same is not there. Admittedly, neither parties have filed a compromise duly and freely entered in between before court of Magistrate, before whom this trial is pending nor it has been verified by trial court concerned. Hence, this Court, in exercise of inherent jurisdiction, under Section 482 Cr.P.C., is not to embark upon question of fact, because it may prejudice fair trial and it remain within domain of trial court, which is to be decided on the basis of evidence led by parties before trial court, but apparently there was an F.I.R. of demand of dowry coupled with cruelty and it was registered as case crime number, wherein investigation was made. There was statement of informant victim with other witnesses, examined under Section 161 Cr.P.C., and on the basis of these evidence, collected by Investigating Officer, charge sheet was submitted, whereupon cognizance has been taken by Magistrate concerned. Hence, prima facie there was evidence for taking of cognizance and it was taken. Now compromise is not there. Hence, nothing appears to be abuse of process of law. Accordingly, this application merits its dismissal. The application is dismissed as such.

Order Date :- 6.3.2020

NS

 

 

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