Smt. Santosh vs Shri Durga Prasad
2009 Latest Caselaw 4051 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI


                       Crl. M.C. No. 4057/2006

                       Judgment delivered on: October 08, 2009



Smt. Santosh                           ..... Appellants.
                              Through: Ms. Shilpa Chohan, Adv.



                              versus

Shri Durga Prasad                      ..... Respondents

Through: Mr. S.S. Panwar, Adv.

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR,


1. Whether the Reporters of local papers may
   be allowed to see the judgment?                               Yes


2. To be referred to Reporter or not?                            Yes

3. Whether the judgment should be reported
   in the Digest?                                                Yes


KAILASH GAMBHIR, J. Oral:

1. By way of the present petition filed under Section 482

Cr.P.C., the petitioner seeks to challenge the order dated

19.10.2005 passed by Sessions Court in Revision Petition No.

04/2005, whereby the petition filed under Section 125 Cr.P.C. was

dismissed.

2. The brief facts of case relevant for deciding the present

petition are as under:-

Petitioner Smt. Santosh got wedded as per Hindu Rights

and Ceremonies with respondent on 13.5.1994 in Delhi. Due to

constant dowry demands and on non-fulfillment of the demands,

the petitioner had to leave her matrimonial home. No child was

born out of the wedlock.

3. A complaint was lodged on 6.11.2000 by the petitioner

on account of the acts and conducts of the respondent and his

family members before the concerned CAW Cell. A formal

compromise has been arrived between the parties wherein it was

decided that petitioner will seek divorce by way of mutual consent

and respondent would pay an amount of Rs. 1 lac towards all

materials claims of petitioner inclusive of Stridhan. That the said

compromise arrived between the parties on 12.2.2001 and out of

the agreed amount of Rs. 1 lakh an amount of Rs. 50,000/- was

paid by the respondent on the same date i.e. 12.2.2001 before the

Crime Against Women Cell. Based on the compromise both the

parties approached the concerned Court to seek divorce by mutual

consent and first motion was allowed on 1.5.2001. The said

compromise was arrived between the parties during the pendency

of the petition filed by the petitioner under Section 125 Cr.P.C. and

the said petition was dismissed in default on 18.12.2002 on

account of the non-appearance of the petitioner and her counsel.

To seek restoration of the said petition the petitioner moved

necessary application on 23.5.2003 but the said application of the

petitioner was dismissed by the learned Magistrate vide order

dated 13th October, 2004.

4. Aggrieved by the said order a criminal revision was

preferred by the petitioner before the Ld. Session Judge. The

Hon'ble Sessions Court vide order dated 19.10.2005 dismissed the

revision petition of petitioner upholding the order dated

13.10.2004 passed by Ld. Metropolitan Magistrate as correct. The

present petition has been preferred by the petitioner to assail

the above said orders.

5. Counsel for the petitioner submits that due to the

reasons explained by the petitioner in the revision petition the

learned Metropolitan Magistrate should have restored the

application of the petitioner filed under Section 125 Cr.P.C., but

instead of doing so the learned M.M. gave much weightage to the

compromise deed dated 17.1.2001 entered into between the

parties before the Crime Against Women Cell (CAW).

6. The contention of the counsel for the petitioner is that

the said compromise entered into before the CAW Cell had no

binding effect and in any case the learned M.M. ought to have

tried the application of the petitioner filed under Section 125

Cr.P.C. on its merits. Counsel further submits that even the

revisional court fell in grave error by not appreciating the

contentions raised by the petitioner and without considering the

bona fides of the petitioner, the learned Sessions Court dismissed

the revision petition filed by the petitioner. Counsel for the

petitioner further submits that the petitioner did not fulfill the

terms of the compromise on account of certain circumstances

created by the respondent and no wrong was committed on the

part of the petitioner in resiling from the said compromise.

Counsel also submits that the right of the petitioner to seek

maintenance was an independent right and the same could not

have been defeated by the learned courts below simply because of

the fact that the petitioner did not honour the terms of the

compromise.

7. The present petition is strongly opposed by Mr. S.S.

Panwar, counsel for the respondent who states that this court

should not exercise the inherent powers as envisaged under

Section 482 Cr.P.C., in favour of the present petitioner who has

abused the process of this court as well as of the courts below.

Counsel submits that both the parties had agreed to settle all their

disputes and in terms of the settlement the respondent husband

had agreed to pay an amount of Rs. 1 lac towards all the material

claims of the petitioner inclusive of her stridhan. Counsel also

states that during the compromise it was agreed that the

petitioner will seek divorce by way of mutual consent and for that,

the pending petition was to be converted into a petition seeking

divorce by mutual consent. Counsel further submits that amount

of Rs. 50,000/- was paid by the respondent on 12.2.2001 at the

time of the compromise and balance amount of Rs. 50,000/- was

to be paid by the respondent at the time of the second motion of

the divorce petition. Counsel for the respondent further submits

that the petitioner deliberately did not appear before the

concerned court of learned M.M. despite court notice being sent to

her. Counsel further submits that even before the concerned court

of learned M.M., the respondent had given an offer to pay balance

amount of Rs. 50,000/- and infact an offer to pay additional

amount of Rs. 10,000/- was made by the respondent, but still the

petitioner did not come forward to honour the said compromise.

Counsel also submits that before the court of learned M.M., the

petitioner had stated that in case she does not agree to settle the

matter then amount of Rs. 50,000/- which was already received by

her would be returned back to the respondent, but that amount

was never returned by the petitioner to the respondent. Counsel

submits that due to the said conduct of the petitioner, and also on

account of non-appearance of the petitioner the learned M.M.

dismissed the said application of the petitioner and the order of

the learned M.M. was upheld by the revisional court, taking into

account the contumacious conduct of the petitioner. Counsel

further submits that since the petitioner had resiled from the said

compromise, then there was no option left with the respondent

but to continue with his divorce petition and ultimately decree of

divorce was granted in favour of the respondent vide decree and

judgment dated 17.4.2007 by the court of Ms. Anju Bajaj

Chandana, Additional District Judge, Delhi. Counsel also states

that application under Section 24 of the HMA was filed by the

petitioner and the Matrimonial court had passed an order on the

said application granting interim maintenance @ Rs. 1,000/- in

favour of the petitioner. Counsel states that the said order

passed by the Matrimonial court on the application filed by the

petitioner under Section 24 of the HM Act was fully complied with

by the respondent and therefore, already maintenance amount

stood paid to the petitioner.

8. Counsel for the petitioner pleads ignorance not only

with regard to the factum of maintenance received by the

petitioner but even with regard to the decree of divorce granted

by the court dissolving the marriage between the petitioner and

respondent.

9. I have heard learned counsel for the parties at

considerable length and gone through the record.

10. It is a settled legal position that power under Section

482 Cr.P.C. is to be exercised with great circumspection and care.

It is to be exercised ex debito justitiae to do real and substantial

justice between the parties. In any case, such a power cannot be

exercised in favour of unscrupulous litigants, who abuse and

misuse the powers of the Court through their devious and

mischievous acts. In this regard the following observations in

Zandu Pharmaceutical Works Ltd. vs. Mohd. Sharaful

Haque, (2005) 1 SCC 122 are worth noting:-

"Para 8" : Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal, posses, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything, it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to deal real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."

11. Thus, considering the aforesaid legal position and also

considering the fact that the petitioner has not approached this

court with clean hands, there can be no justification warranting

exercise of inherent powers under Section 482 Cr.P.C of this

court in favour of the petitioner.

12. The parties had entered into compromise before the CAWC

as long back as on 17.1.2001. Both the parties had duly signed the

said compromise agreement which was also witnessed by three

witnesses Mr. Mani Ram, Mr. Prem Chand who are brothers of the

petitioner and Smt. Shakuntala Devi, who is the sister of the

petitioner. The petitioner had agreed to settle all her claims for

an amount of Rs. 1 lac which was to be paid by the respondent in

two equal instalments. It is not disputed that the petitioner had

received an amount of Rs. 50,000/- on 12.2.2001 and at the time

of the receipt of the said amount, writing was executed and the

same was also witnessed by Mr. Mani Ram, Mr. Prem Chand, Smt.

Shakuntala Devi and Smt. Bimla Kumari. It is also not in dispute

that the said compromise was brought to the notice of the learned

M.M. who was dealing with the maintenance petition of the

petitioner as would be evident from the order dated 16.10.2003,

on which date the respondent had undertaken that he will pay an

amount of Rs.60,000/- to the petitioner at the time of filing the

second motion petition, despite the fact that in terms of the

compromise the respondent was required to pay amount of

Rs.50,000/-. The said order was passed by the learned M.M. when

the restoration application of the petitioner was pending. On

3.6.2004 before the court of learned M.M. the petitioner sought

time to get advice from her brother with regard to the said

compromise and at that juncture she also stated that if the said

compromise is not materialized then she would return back the

amount of Rs.50,000/- received by her from the respondent. The

learned M.M. thus found that in such circumstances when the

petitioner herself did not comply with her own undertaking and

also on account of the fact that the petitioner did not appear

before the court despite service of the court notice, dismissed the

restoration application of the petitioner. The learned trial court

also gave directions to the respondent to take appropriate action

for the recovery of the said amount of Rs.50,000/-. As per counsel

for the respondent steps were taken by the respondent to recover

the said amount by filing recovery suit but the said suit was

dismissed on some technical grounds. Looking into the conduct of

the petitioner, the revisional court also dismissed the revision

petition of the petitioner.

13. A compromise is arrived at into by the parties when both the

parties consent to settle their disputes on certain terms and

conditions. In the instant case, the petitioner willingly and

voluntarily entered into a compromise and nothing has come on

record that the said compromise was entered into by her under

some force, coercion or by practising fraud upon her or the terms

of said compromise were illegal or unconsciousable etc. Unless

one of these grounds existed, a compromise entered into should

not have been flouted as the same has legal sanctity and the

terms of the same should have been adhered to. The consent for

the compromise was given by the petitioner and the respondent

voluntarily. The compromise was genuine and lawful and the

petitioner in all fairness should have acted upon. The consent

having been given cannot be repudiated unless the same was

obtained by fraud or coercion or is contrary to law. In this

regard, reliance can be placed on the case of Ram Swaroop V/s.

Mahindru (2003) 12 SCC 436.

"It was held by the Court that the Respondents were estopped from filing any suit as the consent for the compromise was genuine. Consent for compromise cannot be repudiated unless it suffers from fraud or is illegal."

14. I do not find any illegality or perversity in the order passed

by the revisional court as the revisional court clearly observed that

when the court notice was issued to the petitioner, she had

refused to accept the same. The revisional court also found that

there was no reason for the petitioner to have not honored the

said compromise. The contention of the counsel for the petitioner

that the petitioner was well within her rights to resile from the said

compromise does not find favour with me. Reliance can be placed

on the judgment of High Court Reported in WP (Crl.) No. 848/2007

(17/01/2008) Rajesh V/s. State

"Wife declined in cooperating in quashing F.I.R. The Court held she cannot be allowed to make mockery of court proceedings, nor the statement made by her in court be considered trash, she cannot be allowed to back out from compromise or wriggle out of statement made before court."

15. The petitioner has already taken advantage of the said

compromise by accepting an amount of Rs.50,000/- and no

reasons have been given by the petitioner to resile from the said

compromise and also if she was to resile from the said

compromise then why amount of Rs. 50,000/- was not returned by

her. The compromise was to be honoured by both the parties in

its true letter and spirit. The conduct of the petitioner appears to

be mala fide and no indulgence can be shown to the petitioner

while exercising powers under Section 482 Cr.P.C.

16. In view of the above, the petition is dismissed with

costs of Rs.5,000/- to be paid by the petitioner to the Delhi High

Court Legal Services Committee within a period of four weeks from

the date of this order. Copy of deposit receipt shall be filed by the

petitioner with the Registrar General of this court within one week

thereafter.

October 08, 2009                      KAILASH GAMBHIR,J
Mg