Tushar Singh And 2 Others vs State Of U.P. And Another
2023 Latest Caselaw 18432 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:146356
 
Court No. - 90
 

 
Case :- APPLICATION U/S 482 No. - 12012 of 2021
 
Applicant :- Tushar Singh And 2 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Rajendra Singh,Sarvagya Singh
 
Counsel for Opposite Party :- G.A.,Dhirendra Kumar Srivastava
 

 
Hon'ble Dinesh Pathak,J.

1. Heard learned counsel for the applicants and learned AGA for the State as well as learned counsel for opposite party No.2 and perused the record.

2. The applicants have invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. for quashing the charge sheet dated 28.12.2019 as well as entire proceeding of Crl. Case No. 136 of 2020 (State Vs. Tushar Singh and others) arising out of Case Crime No. 550 of 2019, under Sections 498A, 323, 504, 506 I.P.C. and Section 3/4 Dowry Prohibition Act, 1961, Police Station Mougal Sarai, District Chandauli and also to quash the summoning/cognizance order dated 7.1.2020, pending in the court of Chief Judicial Magistrate, Chandauli.

3. On last occasion while entertaining the instant matter following order dated 12.7.2023 was passed which is quoted herein below :

"1. Heard learned counsel for the applicants, learned counsel for opposite party No.2 and learned AGA for the State.

2. The applicants have invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. to quash the charge sheet dated 28.12.2019 as well as entire proceedings in Criminal Case No.136 of 2020 (State vs. Tushar Singh and others), arising out of Case Crime No.550 of 2019, under Sections 498A, 323, 504 and 506 I.P.C. and Section 3/4 D.P. Act, Police Station Mougal Sarai, District Chandauli and also to quash the summoning/cognizance order dated 7.1.2020, pending before the court of Chief Judicial Magistrate, Chandauli.

3. Instant matter is arising out of matrimonial dispute. Considering the possibility of settlement between the parties, co-ordinate Bench of this Court has referred the matter before the Mediation Centre vide order dated 27.9.2021. However, mediation could not be succeeded, accordingly, Mediation Centre has submitted its report dated 01.07.2023 to the effect that parties are not willing for the mediation.

4. At later stage, both the parties have agreed for separation, as such, they have moved an application under Section 13B of Hindu Marriage Act, 1985 in the Court of Principal Judge, Family Court, Chandauli. As per paragraph No.7 of the application under Section 13B of Hindu Marriage Act, husband has agreed to pay Rs.50 lakh as a final alimony to his wife (opposite party No.2). Out of 50 lakh rupees, one lakh has been deposited in the account of opposite party no.2 which has been received by her. However, 25 lakh rupees has been deposited in the account of Family Court concerned. Remaining 24 lakh rupees through bank draft has been presented before this Court intending to handover it to the wife who is personally present in the Court along with applicant No.1 (husband). Certified copy of the application under Section 13B of Hindu Marriage Act and the order sheet dated 23.5.2023 of the aforesaid case being Case No. 203 of 2023 has been filed along with the supplementary affidavit dated 15.6.2023.

5. Demand draft No.000289 dated 10.07.2023, in the name of opposite party No.2, amounting 24 lakh rupees issued by HDFC, Bank has been produced before the Court and same has been handed over to the opposite party No.2 in presence of both the counsel for both parties. Photo copy of the said bank draft is taken on record with the endorsement of receiving made by opposite party No.2 namely Shilpi Singh who is also directed to make this endorsement on the margin of the order sheet of the date with respect to the same effect.

6. It is informed by learned counsel for the parties that 17.07.2023 is the date fixed for first motion in application under Section 13B of Hindu Marriage Act.

7. Learned counsel for opposite party No.2 has assured that compromise application in the instant matter will be filed soon after final disposal of the case under Section 13B of Hindu Marriage Act.

8. Learned Principal Judge, Family Court before whom Case No.203 of 2023 between the parties under Section 13B of the Hindu Marriage Act is pending consideration is hereby directed to decide the same in accordance with law expeditiously as early as possible.

9. List this matter on 21.7.2023.

10. Till the next date of listing interim order dated 27.9.2021 shall continue."

4. Applicants have filed the certified copy of the order dated 20.7.2023 passed by Principal Judge, Family Court, Chandauli and divorce petition under Section 13B of Hindu Marriage Act, 1955 which has been allowed on the basis of compromise took place between the parties. Consequently, final alimony of Rs.50 lakhs has been given to the wife (opposite party No.2) by her husband (applicant No.1). Personal affidavit of opposite party No.2 filed before the Family Court is also appended as Annexure No.-2 to this affidavit to the fact that she has received remaining amount of Rs.24 lakhs before Hon'ble High Court, which has been mentioned in the order dated 12.7.2023 passed by this Court and now she is not willing to pursue any case against the present applicants.

5. Learned counsel for the applicants has pressed the personal affidavit dated 17.7.2023 filed on behalf of the opposite party No.2 before the Principal Judge, Family Court, Chandauli appended as Annexure No. S.A.-2 to the supplementary affidavit and order dated 20.7.2023 passed by Principal Judge, Family Court, Chandauli which is annexed as Annexure No. S.A.-1 to the supplementary affidavit and urged that present application under Section 482 Cr.P.C. may be allowed and the criminal proceedings going on before the court competent arising out of Case Crime No. 550 of 2019 may be quashed.

6. To quash the cognizance/summoning order as well as criminal proceeding, learned counsel for the applicant has relied upon the following judgments of the Hon'ble Apex Court :-

(i) B.S.Joshi & Others Vs. State of Haryana & Others; (2003) 4 SCC 675.

(ii) Nikhil Merchant Vs. Central Bureau of Investigation; (2008) 9 SCC 667.

(iii) Manoj Sharma Vs. State & Others; (2008) 16 SCC 1.

(iv) Gyan Singh Vs. State of Punjab (2012) 10 SCC 303.

(v) Narindra Singh & Others Vs. State of Punjab (2014) 6 SCC 466.

7. In a recent judgment passed by a Three Judges' Bench of the Apex Court in the Case of Parbatbhai Aahir alias Parbatbhai Bhimsinhbhai Karmur and others Vs. State of Gujarat and another, reported in AIR 2017 SC 4843, Hon'ble Supreme Court has summarized the ratio of all the cases decided earlier with respect to quashing of F.I.R./charge-sheet/criminal proceeding on the ground of settlement between the parties and expounded the ten categories in which application under Section 482 could be entertained for quashing the F.I.R./charge-sheet/criminal proceeding on the basis of compromise. Para no. 15 of the said judgement summarizing the proposition in this respect is reproduced below:-

"15. (i) Section 482 preserves the inherent power of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;

(ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.

(iii) In forming an opinion whether a criminal proceeding or compliant should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;

(iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised;(i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;

(v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;

(vi) In exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence.Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot approximately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;

(vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing insofar as the exercise of the inherent power to quash is concerned;

(viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;

(ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and

(x) There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance."

8. Learned counsel for opposite party No.2 has nodded the submission as raised by learned counsel for the applicants and contended that her client (opposite party No.2) has already filed an affidavit dated 17.7.2023 before the Principal Judge, Family Court, Chandauli showing her willingness not to contest the case against her in-laws inasmuch as she has received final alimony amount 50 lakhs rupees as per the terms and conditions of the compromise, therefore, he urged that present application may be allowed and the criminal proceeding may be quashed inasmuch as the family discord between the parties has already been settled and they have buried the hatchet and now separated and living peaceful.

9. With the assistance of the aforesaid guidelines, keeping in view the nature of gravity and severity of the offence, which are more particular in private dispute, it is deemed proper that in order to meet the ends of justice, the present proceeding should be quashed. In result, dispute between the parties will put to an end, peace will be resorted and relationship between them will be smooth. No useful purpose would be served to keep the present matter pending inasmuch as both the parties have buried the hatchet and as the time passes, it will be difficult to prove the guilt of the accused. The continuation of criminal proceeding would cause oppression harm to the mental and physical life of the parties. Therefore, there is no justification to protract the instant litigation.

10. In view of the aforesaid pronouncements of the Hon'ble Apex Court and in the light of the compromise arrived at between the parties, which has been acknowledge by learned Principal Judge, Family Court, Chandauli in its order dated 20.07.2023 coupled with the personal affidavit dated 17.07.2023 filed by respondent no.2, the present application under Section 482 Cr.P.C. is hereby allowed. The charge sheet dated 28.12.2019 as well as entire proceeding of Crl. Case No. 136 of 2020 (State Vs. Tushar Singh and others) arising out of Case Crime No. 550 of 2019, under Sections 498A, 323, 504, 506 I.P.C. and Section 3/4 Dowry Prohibition Act, 1961, Police Station Mougal Sarai, District Chandauli and summoning/cognizance order dated 7.1.2020, pending in the court of Chief Judicial Magistrate, Chandauli are hereby quashed.

11. Let a copy of the order be transmitted to the concerned lower Court for necessary action.

Order Date :- 21.7.2023

Md Faisal