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Surajbhan And Others vs State Of U.P. And Another on 28 February, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 28

Case :- APPLICATION U/S 482 No. – 3388 of 2013

Applicant :- Surajbhan And Others

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

Counsel for Applicant :- Awadhesh Prasad Pandey,Ali Hasan

Counsel for Opposite Party :- Govt. Advocate

Hon’ble Rajeev Misra,J.

Heard Mr. Om Prakash, learned counsel for applicants, learned A.G.A. representing opposite party No. 1 and Mr. Amit Gupta, Advocate, holding brief of Mr. Ravi Sahu, learned counsel for opposite party No. 2.

This application under section 482 Cr. P. C. has been filed challenging summoning order dated 18.12.2012 passed by Judicial Magistrate, Court No. 9, Jhansi, in Criminal Complaint Case No. 833 of 2011 (Smt. Poonam Vs. Surajbhan and others), under sections 498A, 406, 323, 504, 506 IPC and Sections 3/4 Dowry Prohibition Act, P.S. Chirgaon, District Jhansi as well as entire proceedings of above mentioned complaint case.

Present application came up for admission on 28.1.2013 and this Court passed the following interim order :-

“Heard learned counsel for the applicants and learned A.G.A. for the State.

Learned counsel for the applicants submitted that the present matter arises out of a matrimonial dispute between the applicant no.1 and opposite party no. 2 which can be settled through process of mediation.

Issue notice to opposite party no.2 fixing 14.3.2013 for her appearance before this Court. On that date, the opposite party no. 2 shall inform the Court whether she is willing to get the dispute between her and her husband settled through process of mediation.

List on 14.3.2013.

In the meantime, the applicants shall deposit a sum of Rs. 5000/- before this Court by demand draft drawn in favour of the opposite party no. 2 which shall be paid to her on her appearance before this Court. In case the applicants fail to deposit the aforesaid amount within time indicated herein above, this application shall stand dismissed without any further reference to the Court.”

Applicants complied with the condition contained in the order dated 28.1.2013. Thereafter, present application came up for admission on 29.4.2013. Present application in so far as it relates to applicant no. 1 was rejected and further proceedings of aforesaid complaint case in respect of applicant nos. 2 and 3 were stayed till the next date of listing. For ready ready reference order dated 29.4.2013 is reproduced herein below:-

“Heard Sri Awadhesh Prasad Pandey, learned counsel for the applicants and learned A.G.A.

This application under Section 482 Cr.P.C. has been filed for quashing the proceedings of Complaint Case No.833 of 2011 (Smt. Poonam Vs. Surajbhan), under Sections 498-A, 406, 323, 504, 506 I.P.C. and 3/4 D.P. Act, police station Chirgaon, District Jhansi, pending in the Court of Judicial Magistrate, Court No.9, Jhansi and the summoning order dated 18.12.2012 passed by the learned Judicial Magistrate, Court No.9, Jhansi in Criminal Complaint Case No. 833 of 2011, Smt. Ponam Vs. Surajbhan and others, under Sections 498-A, 406, 323, 504, 506 I.P.C. and 3/4 D.P. Act, police station Chirgaon, District Jhansi.

The marriage between applicant no.1 and opposite party no.2 was solemnized in the year 2009.

Learned counsel for the applicants is ready with the draft of Rs.5,000/- to be handed over to opp. party No.2 in compliance of this Court’s order dated 28.1.2013. Twice the matter was listed before this Court but opp. party No.2 did not appear before this Court on 14.3.2013 and 10.4.2013.

After having very carefully examined, the submissions made by the learned counsel for the applicants and perused the material brought on record, I find that so far as applicant no.1, namely, Surajbhan (husband) is concerned, there is no justification for quashing the prosecution of the aforementioned case.

The prayer to that extent on behalf of applicant no.1 is hereby refused.

However, it is directed that in case the applicant no.1 appears and surrenders before the court below within 30 days from today and applies for bail, his prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon’ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.

It is made clear that the applicant no.1 will not be granted any further time by this Court for surrendering before the Court below as directed above.

So far as applicant nos.2 3, namely, Chandrabhan and Smt. Radha Devi are concerned, it has been contended by learned counsel for the applicants that they are the family members of applicant no.1 and the allegation levelled against them are wholly vague and no specific allegation has been levelled against them. Learned counsel for the applicants has placed reliance on the judgment of the Apex Court in the case of Geeta Mehrotra Vs. State of U.P. and others reported in 2012 (10) ADJ 464.

Notice on behalf of opposite party no. 1 has been accepted by learned A.G.A.

Issue notice to opposite party no.2 returnable within four weeks at the address given in the application. If the requisites for issuing the notice under Registered Postal Cover with Acknowledgment Due are not filed within ten days, this application shall stand dismissed without further reference to any Bench of this Court. Opposite party no.2 may file counter affidavit within four weeks. Learned A.G.A. may also file counter affidavit within the same period. Rejoinder affidavit may thereafter be filed within two weeks.

List immediately after expiry of the aforesaid period before appropriate Bench.

Till the next date of listing, further proceedings of the aforesaid case shall remain stayed against applicantnos.2 3, namely, Chandrabhan and Smt. Radha Devi.”

It transpires from record that marriage of applicant No. 1 was solemnized with opposite party No. 2 on 10.5.2009 in accordance with Hindu Rites and Customs. Subsequently, relationship between applicant No. 1 and opposite party No. 2 became strained on account of marital discord. Faced with despair and destitution, opposite party No. 2 filed a complaint dated 19.5.2012 in the Court of Judicial Magistrate, Court No. 9, Jhansi. On filing of aforesaid complaint, Magistrate proceeded with the same and recorded the statement of complainant and his witnesses in terms of Sections 200/202 Cr. P. C.

On the aforesaid material, the Magistrate recorded his prima facie satisfaction and consequently summoned the present applicants, vide summoning order dated 18.12.2012. Feeling aggrieved by aforesaid summoning order as well as entire proceedings of above mentioned complaint case, applicants have now approached this Court by means of present application under Section 482 Cr. P. C. Present application in so far as it relates to applicant No. 1 has already been dismissed, vide order dated 29.4.2013.

Learned counsel for applicants submits that in a matrimonial dispute, the entire family of applicant No. 1 has been implicated. Applicant No. 2 Chandrabhan is devar and applicant No. 3 Smt. Radha Devi is mother-in-law of opposite party No. 2. As such, entire family members have been implicated. It is next contended that during the pendency of present application under Section 482 Cr. P. C., applicant No. 1 and opposite party No 2 have settled their dispute outside the Court. Accordingly, applicant No. 1 filed a suit for divorce in terms of Section 13 (B) of Hindu Marriage Act i.e. suit for divorce by mutual consent. The suit has been decreed, vide judgement and decree dated 10.2.2017. Thus on date, there is no relationship in between the present applicants and opposite party No. 2. Even otherwise, it is then contended that since parties have amicably settled their dispute and filed a suit for divorce by mutual consent, such a situation should be construed as a compromise between the parties to settle their dispute. Learned counsel for applicants placed reliance in the case of Shlok Bhardwaj Vs. Runika Bhardwaj, 2015 (2) SCC 721, wherein it has been held that compromise entered between the parties in a matrimonial dispute should be treated as settlement to bring all disputes to an end.

On the aforesaid factual premise, it is thus urged that present criminal proceedings are not legally sustainable and therefore liable to be quashed by this Court.

Per contra, learned A.G.A. and Mr. Ravi Sahu, Advocate, appearing for opposite party No. 2 have not opposed the present application. Mr. Ravi Sahu has invited the attention of the Court to the compromise affidavit jointly filed by applicant No. 1 and opposite party No. 2, wherein it has been stated in paragraph 4 that parties have settled the dispute and accordingly a compromise agreement dated 21.4.2016 has been drawn. As per the terms of compromise, parties have agreed to withdraw all the civil and criminal cases filed against each other. Pursuant to aforesaid compromise, applicant No. 1 has filed Case No. 274 of 2016 in terms of Section 13 (B) of Hindu Marriage Act, i.e. divorce by mutual consent. He, therefore, submits that in view of aforesaid facts, opposite party No. 2 now cannot have any objection in case present application is decided in the light of the compromise affidavit jointly filed by applicant No. 1 and opposite party No. 2.

Having heard learned counsel for applicants, learned A.G.A for State and learned counsel representing opposite party No. 2, this Court comes to the conclusion that the dispute between the parties is a purely private and matrimonial dispute. Applicant No. 1 and opposite party No. 2 have amicably settled their dispute and on the basis of settlement so arrived, they have filed a suit for divorce by mutual consent, which has been decreed, vide judgement and decree dated 10.2.2017. Applicant No. 1 and opposite party No. 2 have further agreed to withdraw the civil and criminal proceedings initiated against each other. In furtherance of aforesaid, applicant No. 1 and opposite party No. 2have jointly filed a compromise affidavit.

In view of above, no useful purpose shall be served in prolonging the proceedings of above mentioned complaint case or relegating the parties to Court below.Furthermore, once the parties have agreed to resolve the dispute amicably on the basis of compromise, the bar of Section 320 Cr. P. C. also does not get attracted.

Consequently, present application succeeds and is allowed.

Accordingly, impugned summoning order dated 18.12.2012 passed by Judicial Magistrate, Court No. 9, Jhansi, in Criminal Complaint Case No. 833 of 2011 (Smt. Poonam Vs. Surajbhan and others), under sections 498A, 406, 323, 504, 506 IPC and Sections 3/4 Dowry Prohibition Act, P.S. Chirgaon, District Jhansi and entire proceedings of above mentioned complaint case are, hereby, quashed.

Order Date :- 28.2.2020

HSM

 

 

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