Javed Ali & Ors vs State & Anr

$~18
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+       CRL.M.C. 4081/2014
        JAVED ALI & ORS                                    ..... Petitioner
                 Through   Mr. Syed Ajmal Hasan & Ravinder Kumar,
                           Advocates.

                           versus

        STATE & ANR                                        ..... Respondent

Through Ms. Nishi Jain, Additional Public Prosecutor.

Sub Inspector Yadram Yadav.

Mr. C. B. Garg, Advocate CORAM:

HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA % SUDERSHAN KUMAR MISRA, J.(Oral) Crl.M.A. No.14041/2014 Exemption, as prayed for, is allowed, subject to all just exceptions. This application is disposed off.

Crl.M.C. No.4081/2014

1. This petition under Section 482 Cr.P.C. seeks quashing of FIR No.198/2012 registered at police station Khyala under Sections 406, 498-A, IPC, and all proceedings emanating therefrom, on the ground that the parties concerned have settled the matter.

2. Issue notice.

Ms.Nishi Jain, APP for the State, and Mr. C.B. Garg, Advocate for the complainant / second respondent, enter appearance and accept notice. The Investigating Officer Sub Inspector Yadram Yadav identifies the petitioners as well the second respondent / complainant in Court today.

3. It is stated that the aforesaid FIR came to be registered at the instance of second respondent, who was married on 03.09.2006 to the first petitioner Javed Ali. A male child, namely, Uzaif Ali, was born to them on 03.09.2007. However, due to certain matrimonial differences between the parties, the aforesaid FIR came to be lodged by the complainant. In addition, proceedings were also initiated under Section 125 Cr.P.C., and also under the provisions of the Domestic Violence Act. Ultimately, the matter was referred to mediation by the court of Sh. Brijesh Sethi, Principal Judge, Family Courts (West) Tis Hazari Courts, Delhi, and the aforesaid settlement was recorded before the Principal Counsellor on 05.06.2014. A copy of the Settlement has been annexed to this petition. It is stated that in terms of the said settlement, a total sum of Rs.50,000/- has been handed over to the complainant by the first petitioner Javed Ali in Court today.

4. Another significant aspect of the settlement as set down in paragraph 7 thereof states as follows;

"7. There is one child namely Uzaif, 7 yearsr, from this wedlock, who is living with the petitioner. It is agreed among the parties that teh custody will be with petitioner. The respondent will not have visitation right."

The first petitioner Javed Ali specifically approbates this settlement and accepts the aforesaid terms after being explained the implications and purport of the same by this Court in the vernacular to the effect that the custody of the male child, Uzaif, aged about 7 years, shall remain with the complainant / respondent No.2 alone; and that the first petitioner shall not even have any visitation rights in this regard. The complainant and the petitioners are stated to have divorced each other on 05.06.2014 and a, "STATEMENT OF DIVORCE BY MUSLIM HUSBAND", under the Crl.M.C. No.4081/2014 Page 2 of 8 signatures of the Counsellor Himali, dated 05.06.2014 has also been annexed to this petition.

5. The complainant also states that she does not now wish to proceed any further in the matter, and that all outstanding disputes between her and the petitioners stand amicably settled.

6. Counsel for the State submits that looking to the overall circumstances; and since the parties have resolved their disputes amicably, and divorce has also been obtained; no useful purpose will be served in continuing with these proceedings where the complainant is not interested in supporting the prosecution.

7. Consequently, and looking to the decisions of the Supreme Court in Gian Singh v. State of Punjab, (2012) 10 SCC 303, which has referred to a number of matters for the proposition that even a non-compoundable offence can also be quashed on the ground of a settlement agreement between the offender and the victim, if the circumstances so warrant; by observing as under:

"58. ....However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to the victim and the offender and the victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or FIR if it is satisfied that on the face of such settlement, there is hardly any likelihood of the offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated."

And also in Narinder Singh and Ors. v. State of Punjab and Anr.

2014(2) Crimes 67 (SC) where the Supreme Court held as follows:-

"29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:

29.1 Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.

29.2 When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:

(i) ends of justice, or

(ii) to prevent abuse of the process of any Court.

While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.

29.3 Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences Crl.M.C. No.4081/2014 Page 4 of 8 committed by Public Servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.

29.4 On the other hand, those criminal cases having overwhelmingly and pre-dominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.

29.5 While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.

29.6 Offences under Section 307 Indian Penal Code would fall in the category of heinous and serious offences and therefore is to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 Indian Penal Code in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307Indian Penal Code is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 Indian Penal Code. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the later case it would be Crl.M.C. No.4081/2014 Page 5 of 8 permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship.

29.7 While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come a conclusion as to whether the offence under Section 307 Indian Penal Code is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 Indian Penal Code and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime."

And specifically in respect of matrimonial disputes in Jitendra Raghuvanshi & Ors. v. Babita Raghuvanshi & Anr. (2013) 4 SCC 58, where the Supreme Court held as follows:-

"15. In our view, it is the duty of the courts to encourage genuine settlements of matrimonial disputes, particularly, when the same are on considerable increase. Even if the offences are non-compoundable, if they relate to matrimonial disputes and the Court is satisfied that the parties have settled the same amicably and without any pressure, we hold that for the purpose of securing ends of justice, Section 320 of the Code would not be a bar to the exercise of power of quashing of FIR, complaint or the subsequent criminal proceedings.

16. There has been an outburst of matrimonial disputes in recent times. They institution of marriage occupies an important place and it has an important role to play in the society. Therefore, every effort should be made in the interest of the individuals in order to enable them to settle down in life and live peacefully. If the parties ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law, in order to do complete justice in the matrimonial matters, the courts should be less hesitant in exercising their extraordinary jurisdiction. It is trite to state that the power under Section 482 should be exercised sparingly and with circumspection only when the Court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of process of court or that the ends of justice require that the proceedings ought to be quashed...."

I am of the opinion that this matter deserves to be given a quietus where all outstanding disputes have been amicably resolved and the complainant is no longer interested in supporting the prosecution, thereby reducing the chances of success.

8. Consequently, the petition is allowed, and FIR No.198/2012 registered at police station Khyala under Sections 406, 498-A, 34 IPC, and all proceedings emanating therefrom, are hereby quashed.

9. The petition is disposed off.

SUDERSHAN KUMAR MISRA, J SEPTEMBER 09, 2014 dr Crl.M.C. No.4081/2014 Page 8 of 8