Yogesh Kapoor vs State & Anr
2014 Latest Caselaw 3682 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    CRL.M.C. 3605/2014

         YOGESH KAPOOR                                      ..... Petitioner
                     Through:             Mr. Rajat Aneja, Ms. Rashmi Verma
                                          & Ms. Aarohi Holani, Advocates
                            versus

         STATE & ANR                                       ..... Respondents
                            Through:      Mr. Amit Ahlawat, APP with SI
                                          Mahendra Kr. Mishra, SHO & SI
                                          Ajay Kumar, PS Dabri
                                          Mr. G.D. Sharma, Adv. for R-2 with
                                          R-2 in person

         CORAM:
         HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

% SUDERSHAN KUMAR MISRA, J. (ORAL)

CRL.M.A. 12419/2014 Exemption, as prayed for, is allowed, subject to all just exceptions. The application stands disposed off.

CRL.M.C. 3605/2014 & CRL.M.A. 12418/2014

1. This petition under Section 482 Cr.P.C. praying for quashing of FIR No. 361/2011 registered under Sections 406/498A IPC at Police Station Dabri, New Delhi, and all the proceedings emanating therefrom, be quashed, on the ground that the matter has been settled between the parties. The aforesaid FIR came to be lodged by Smt. Sheetal Kapoor, who is arrayed as respondent No. 2 in this petition, and who was the wife of the petitioner, Yogesh Kapoor.

2. Issue notice.

3. Counsel for the State, as well as counsel for the complainant/respondent No. 2, enter appearance and accept notice. The complainant, Smt. Sheetal Kapoor, is also present in person. A settlement between the parties is stated to have been arrived at 02.11.2012 and was recorded on 21.09.2013 before the Principal Judge, Family Court in HMA 566/2013. A copy of the same has been annexed to this petition.

4. A perusal of the aforesaid settlement indicates that the complainant settled all disputes before the Mediation centre, Dwarka Courts, New Delhi, and also executed a settlement deed dated 02.011.2012, which was duly exhibited before the Family Court as Exhibit C-1. The complainant is present today. She is also identified by the Investigating Officer. She states that she has received the remaining amount of Rs. 50,000/- in terms of the aforesaid settlement, and that nothing more remains to be done in that regard. She specifically approbates the settlement and reiterates her commitment to remain bound by the same.

5. Similarly, the petitioner, Yogesh Kapoor, who is also present today, and is identified by his counsel, as well as the Investigating Officer, also approbates the same settlement and undertakes to this Court that he shall remain bound by the same. Both parties specifically undertake to remain bound by all the terms and conditions of the settlement as also recorded by the family court on 21.09.2013.

6. Both counsel submit that the divorce by mutual consent has also been granted by the Family Court to the parties on 21.09.2013 in the aforesaid

HMA 566/2013. A copy of the judgment of the Family Court under Section 13(B)(2) of the Hindu Marriage Act, 1955, dissolving their marriage is also annexed to this petition.

7. Counsel for the State submits that the chargesheet has been filed before the trial court and charges are yet to be framed. He further submits that looking to the circumstances, and since the parties have amicably resolved their disputes and their marriage has also been dissolved whilst recording the terms of the settlement between the parties including, inter alia, pertaining to the custody of the minor children, no useful purpose would be served in continuing with the prosecution where the complainant is not interested in supporting her case.

8. Consequently, and looking to the decisions of the Supreme Court in 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; and also 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 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 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."

I am of the opinion that the circumstances of the case warrant that a quietus be given to the matter since the matter has arisen out of a domestic discord where all outstanding issues between the complainant and her husband appear to have settled to the mutual satisfaction before the family court; particularly since the complainant is not interested in supporting the prosecution any further and the chances of success at the trial are rather remote.

9. Under the circumstances, and for the aforesaid reasons, FIR No.361/2011 registered under Sections 406/498A IPC at Police Station Dabri, New Delhi, and all the proceedings emanating therefrom, are hereby quashed.

10. The petition, along with the accompanying application, stands disposed off in the above terms.

SUDERSHAN KUMAR MISRA, J.

AUGUST 13, 2014 rd