Smt. Dr. Neha W/O. Jitesh Agrawal ... vs State Of Maharashtra Thr. Police ...
2017 Latest Caselaw 7839 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY, 
                      NAGPUR BENCH, NAGPUR.

                 Criminal Application (APL) No. 574 of 2017

(1) Smt. Dr. Neha W/o Jitesh Agrawal,
      Aged about : 27 Years, Occ : Dentist,
      R/o. At-post Soundad, Tah. Sadak Arjuni, 
      Distt. Gondia (M.S.) 

(2) Shri Jitesh S/o. Narsingdas Agrawal,
      Aged about : 30 Years, Occ : Business,
      R/o. At-post Soundad, Tah. Sadak Arjuni, 
      Distt. Gondia (M.S.) 

(3) Shri Narsingdas S/o Radhyeshyam Agrawal,
      Aged about : 60 Years, Occ : Business,
      R/o. At-post Soundad, Tah. Sadak Arjuni, 
      Distt. Gondia (M.S.) 

(4) Dr. Bharat S/o. Narsingdas Agrawal,
      Aged about : 35 Years, Occ : Business,
      R/o. At-post Sakoli, Tah.  Sakoli, 
      Distt. Bhandara (M.S.) 

(5) Mrs. Jyoti W/o. Narsingdas Agrawal,
      Aged about : 57 Years, Occ : Business,
      R/o. At-post Soundad, Tah. Sadak Arjuni, 
      Distt. Gondia (M.S.) 

(6) Dr. Preeti W/o Dr. Bharat Agrawal,
      Aged about : 32 Years, Occ : Business,
      R/o. At-post Sakoli, Tah.  Sakoli, 
      Distt. Bhandara (M.S.)                                            .... Applicants

      //  Versus //

State of Maharashtra,
through Police Station Officer, 
Police Station, Duggipar,
Tah. Sadak Arjuni, Dist. Gondia                                 .... Non-applicant

Shri Sandeep Kadu, Advocate for the applicants 
Shri C. A. Lokhande, Additional Public Prosecutor for the non-applicant

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                                  CORAM      : ANOOP V. MOHTA AND
                                               M. G. GIRATKAR, JJ.
                                       DATE  : 05-10-2017.

JUDGMENT (Per : M. G. GIRATKAR, J.)

The criminal application is admitted and heard finally at the

stage of admission with the consent of the learned counsel for the parties.

2. The applicant no. 1 was the wife of applicant no. 2. The

applicant no. 1 is Doctor by profession. She married with applicant no. 2

on 14-12-2013. The applicant nos. 1 and 2 started living separately from

10-6-2014. Due to some differences between them, they could not

continue their relation. The applicant no. 2 filed divorce petition before

the Civil Judge Senior Division, Nagpur. The matter is settled between

the applicant nos. 1 and 2.

3. Before filing divorce petition by applicant no. 2, the applicant

no. 1 was residing at Saundad with applicant no. 2 and her in-laws.

During her stay with applicant no. 2 and his parents, she lodged the

report in Police Station, Duggipar alleging demand of dowry and cruelty

by her husband and relatives of her husband. Crime was registered

against the applicant no. 2 and his relatives. After investigation, charge-

sheet was filed before the Judicial Magistrate First Class, Sadak Arjuni.

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There was settlement between the applicant no. 1 and applicant no. 2.

The applicant nos. 1 and 2 resolved their disputes. As per the terms of

settlement, the mutual decree of divorce was passed. The applicant no. 1

agreed to withdraw all the cases (criminal proceedings) pending against

her husband and relatives of husband, therefore, prayed to quash and set

aside the Charge-sheet No. 83/2015 (FIR No. 86/2015).

4. Today, the applicant nos. 1 and 2 i.e. husband and wife

are present before the Court. We have heard learned counsel for

the applicants Shri Kadu and learned Additional Public Prosecutor

Shri Lokhande for the non-applicant.

5. The applicant no. 1/wife has stated before us that now she

got divorce from the applicant no. 2. Both the husband and wife have

stated before us that all their disputes are settled between them. The

applicant no. 1 has stated before us that she lodged report due to

misunderstandings, now, she do not want to prosecute her husband -

applicant no. 2 and his relatives/in-laws.

6. From the submissions of applicant no. 1/ wife, it is clear that

she has settled all the disputes with her husband and relatives of her

husband. She do not want to prosecute the accused for the offences

punishable under Sections 498-A, 506 read with Section 34 of the Indian

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Penal Code and Sections 3 and 4 of the Dowry Prohibition Act.

7. Hon'ble Supreme Court in the case of Gian Singh Vs. State

of Punjab and another (2012) 10 SCC 303 has laid down guiding

principles that the High Court should consider in determining as to

whether to quash FIR or complaint in the exercise of the inherent

jurisdiction. The considerations which must weight with the High Court

are :

"61...the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising

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from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."

8. In the case of Narinder Singh and ors. Vs. State of Punjab

and anr. reported in (2014) 6 SCC 466, the Hon'ble Supreme Court

observed that the timing of a settlement is of significance in determining

whether the jurisdiction under Section 482 should be exercised :

"29.7...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

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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..."

The Hon'ble Supreme Court while dealing with an offence under Section

307 of the Penal Code that the following circumstances had weighed with

it in quashing the First Information Report :

"33. We have gone through the FIR as well which was recorded on the basis of statement of the complainant/victim. It gives an indication that the complainant was attacked allegedly by the accused persons because of some previous dispute between the parties, though nature of dispute etc. is not stated in detail. However, a very pertinent statement appears on record viz., "respectable persons have been trying for a compromise up till now, which could not be finalized". This becomes an important aspect. It appears that there have been some disputes which led to the aforesaid purported attack by the accused on the complainant. In this context when we find that the elders of the village, including Sarpanch, intervened in the matter and the parties have not only buried their hatchet but have decided to live peacefully in future, this becomes an important consideration. The evidence is yet to be led in the Court. It has not even started. In view of compromise between parties, there is a minimal chance of the witnesses coming forward in support of the prosecution case. Even though nature of injuries can still be established by producing the doctor as witness who conducted medical examination, it may become difficult to prove as to who caused these injuries. The chances of conviction, therefore, appear to be remote. It would, therefore, be unnecessary to drag these proceedings..."

9. In the recent judgment, Hon'ble Supreme Court in Criminal

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Appeal No. 1723 of 2017 [arising out of SLP (CRL) No. 9549 of 2016]

in the case of Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur

and ors. Vs. State of Gujarat and anr. decided on 4-10-2017 has laid

down following broad principles for the consideration of High Court to

quash the First Information Report/proceedings :

(i) Section 482 preserves the inherent powers 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 complaint 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

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exhaustive elaboration of principles can be formulated;

(vi) In the 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 appropriately 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 in so far 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

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         balance.

10. In the persent matter, the applicant no. 1 who is a Doctor by

profession was married with applicant no. 2 on 14-12-2013. They were

residing at Saundad in joint family. She lodged the report on 12-10-2015

in Police Station, Duggipar, District Gondia alleging cruelty and criminal

intimidation etc. On her report, Police Station, Duggipar registered

Crime No. 86/2015. After investigation, Investigating Officer filed the

charge-sheet before Judicial Magistrate First Class, Sadak Arjuni on

29-12-2015. The said case is registered as Regular Criminal Case No.

59/2015 (Charge-sheet No. 83/2015). Said case is pending before the

Judicial Magistrate First Class, Sadak Arjuni. The said case is at the

primary stage and charge is not framed against the accused.

11. As per the guidelines given by the Hon'ble Supreme Court in

the above cited recent judgment, it is clear that while quashing the FIR,

the Court has to keep in mind that no fruitful purpose will be served by

keeping the proceedings pending before the Court. The applicant nos. 1

and 2 settled their all disputes. Mutual divorce is granted in their favour

by the Court. As per the terms of settlement, all cases pending against

each other are to be withdrawn. Offence punishable under Section

498-A of Indian Penal Code is not compoundable as per the provisions of

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Section 320 of the Code of Criminal Procedure. Therefore, the applicant

nos. 1 and 2 (husband and wife) approached to this Court and prayed to

quash the charge-sheet pending before the Judicial Magistrate First Class,

Sadak Arjuni. Now the applicant no. 1 is residing at Obedullaganj,

District Raisen (M.P.). The applicant no. 2 and his parents are residing at

Soundad, District Gondia. As per the settlement between the parties, all

cases are to be withdrawn by husband and wife filed against each other.

A copy of terms of settlement is filed at Annexure A-3. As per the terms

of settlement, all the documents and articles belonging to the applicant

no.1 was to be returned by the applicant no. 2 to his wife (applicant

no. 1).

12. Today, the applicant nos. 1 and 2 (husband and wife) are

present before this Court. We have specifically asked applicant no. 1

whether she has received all the articles as per the terms of settlement,

annexure A-3, she replied before us that she has received all the articles/

documents from her husband - applicant no. 2. She has specifically

stated that they have compromised all the matters pending between them

as per the terms of settlement annexure A-3. Therefore, it is clear that

the applicant no. 1 would not come to the Court of the Judicial

Magistrate First Class, Sadak Arjuni to depose against her husband and

in-laws, more particularly, when she is residing at Obedullaganj, District

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Raisen,   Madhya   Pradesh.     In  view   of  the  settlement,   she  has  not  any

interest to prosecute her husband and in-laws. There is less possibility of

terminating the proceedings into conviction. No fruitful purpose will be

served to keep the matter pending before the Judicial Magistrate First

Class, Sadak Arjuni.

13. Hence, we allow the application in terms of prayer clause (A)

and (B) and quash and set aside Regular Criminal Case No. 59/2015

(Charge-sheet No. 83/2015 of Police Station, Duggipar - State Vs. Jitesh

Agrawal and others) pending before the Judicial Magistrate First Class,

Sadak Arjuni, District Gondia. No order as to costs.

         (M.G. GIRATKAR, J.)               (ANOOP V. MOHTA, J.)




wasnik




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