Sau. Pallavi W/O. Ashish Wasnik ... vs State Of Maharashtra Thr. P.S.O. ...
2017 Latest Caselaw 7951 Bom

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

                 Criminal Application (APL) No. 656 of 2017

(1) Sau. Pallavi W/o Ashish Wasnik 
      Age about :- 24 Yrs, Occ :- Household,
      R/o. Vijay Fulzele, Qtr No. 7/67/1, 
      Defence Istate, Wadi, Nagpur. 

(2) Ashish S/o Suresh Wasnik 
      Age about :- 33 Yrs, Occ :- Private,

(3) Smt. Kaushalya Wd/o Suresh Wasnik 
      Age about :- 58 Yrs, Occ :- Household
      Applicants No. 2 and 4 are the 
      R/o, 53, Palkar Nagar, athava mail, 
      Wadi, Nagpur.                                                           .... Applicants

      //  Versus //

State of Maharashtra,
Through P.S.O. Wadi, 
Nagpur                                                                   .... Non-applicant

Shri N. S. Giripunje, Advocate for the applicants 
Ms. T. H. Khan, Additional Public Prosecutor for the State/non-applicant

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

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. By the present application, the applicant nos. 1, 2 and 3

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prayed to quash and set aside first information report lodged by the

applicant no. 1 against applicant nos. 2 and 3. It is submitted that

applicant no. 1 married with applicant no. 2 on 25-3-2014. After

discharging matrimonial obligation, applicant nos. 1 and 2 did not

adjust with each other and therefore, quarrel took place between them.

The applicant no. 1 lodged the report in the Police Station on 24-4-2014

alleging cruelty by applicant nos. 2 and 3 and demand of dowry of

Rs. 1,00,000/-. On the report of applicant no. 1, Crime No. 77/2014 for

the offences punishable under Section 498-A read with Section 34 of the

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

came to be registered.

3. Applicant no. 1 filed proceedings before the Family Court,

Nagpur. During the pendency of the proceedings before the Family

Court, matter was referred for mediation/conciliation. The applicant

nos. 1 and 2 settled their dispute before the Mediator as per the terms

stated in the agreement.

4. It is submitted that the applicant no. 1 - wife and applicant

no. 2 - husband have settled their all disputes pending between them. It

is submitted that in view of the compromise, applicant no. 1 do not want

to prosecute applicant nos. 2 and 3 for the offences punishable under

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Section 498-A read with Section 34 of the Indian Penal Code and

Sections 3 and 4 of Dowry Prohibition Act registered by Police Station,

Wadi, Nagpur vide Crime No. 77/2014. It is submitted that after

investigation of the crime, charge-sheet came to be filed in the Court

of the Judicial Magistrate First Class, Court No. 2, Nagpur which is

registered as Regular Criminal Case No. 2517/2014. At last it is prayed

to quash and set aside Regular Criminal Case No. 2517/2014 arising out

of Crime No. 77/2014 (Police Station, Wadi) pending before the Judicial

Magistrate First Class, Court No. 2, Nagpur.

5. Today, applicant no. 1 (wife of applicant no. 2) is present

with her counsel Shri Giripunje. Learned counsel Shri Giripunje has

submitted that the matter is settled before the Family Court as per the

agreement, Annexure-B, therefore, in view of the compromise, the

applicant no. 1 do not want to prosecute applicant nos. 2 and 3 and

therefore, prayed to allow the application in terms of prayer clause (1).

6. Heard learned Additional Public Prosecutor Ms. Khan for the

non-applicant. She has opposed the application. She has submitted that

offences are not compoundable and therefore, application is liable to be

rejected.

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7. We have heard the applicant no. 1 - wife of applicant no. 2 in

person. She has stated before us that they have settled their dispute

before the Family Court as per the terms of agreement, Annexure-B. She

has stated before us that she do not want to prosecute the applicant

nos. 2 and 3. The applicant no. 1 has stated that due to

misunderstanding, she lodged the report against the applicant nos. 2

and 3, therefore, prayed to allow the application.

8. Hon'ble Supreme Court in the recent judgment in Criminal

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

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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 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

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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.

As per guideline no. (ix), the present application is liable to be allowed

as the applicant nos. 1 and 2 compromised their dispute between them.

Applicant no. 1 do not want to prosecute the applicant nos. 2 and 3.

There is less possibility of conviction. Continuation of criminal

proceeding would cause oppression and prejudice to the applicant nos. 2

and 3. There is less possibility of giving evidence by the applicant no. 1

against the applicant nos. 2 and 3, therefore, keeping the proceeding

pending before the Judicial Magistrate First Class is nothing but abuse of

process of Court (law).

9. We have gone through the terms of compromise, Annexure-B

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(agreement between applicant no. 1 and applicant no. 2). The applicant

nos. 1 and 2 have settled their dispute before the Family Court. In view

of the compromise between the applicant nos. 1 and 2, case pending

before the Judicial Magistrate First Class, Court No. 2, Nagpur is liable to

be quashed and set aside.

10. Hence, we allow the application in terms of prayer clause (1)

and quash and set aside Regular Criminal Case No. 2517/2014 arising

out of Crime No. 77/2014 (Police Station, Wadi) for the offences

punishable under Section 498-A read with Section 34 of the Indian Penal

Code and Sections 3 and 4 of Dowry Prohibition Act. Order accordingly.

No order as to costs.

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




wasnik




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