Nasim & Ors. vs State & Anr
2014 Latest Caselaw 3862 Del

$~28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 3697/2014
  NASIM & ORS.
                                                   ..... Petitioners
            Through: Mr. Dinesh Singhal, Advocate with all
                         petitioners in person.
                  versus
  STATE & ANR
                                                ..... Respondents
            Through: Ms. Nishi Jain, APP for the State
                         Inspector Pawan Sharma PS Nihal Vihar.
                         Ms. Rumana, complainant in person.
CORAM:
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
% SUDERSHAN KUMAR MISRA, J. (ORAL)

Crl.M.A. No.12769/2014

Exemption, as prayed for, is allowed, subject to all just exceptions.

This application is disposed off.

Crl. M.C. No.3697/2014

This petition under Section 482 of the Code of Criminal Procedure, 1973, has been moved by the petitioners seeking quashing of FIR No.242/2013 under Section 498A/406/34 IPC registered at Police Station Nihal Vihar, Delhi, and all the proceedings emanating therefrom, on the ground that the matter has been settled between the parties.

Issue notice.

Counsel for the State as well as Ms. Rumana, second respondent/complainant accepts notice. The petitioners as well as the second respondent/complainant are present in person in the

Court and they are identified by the Investigating Officer Inspector Pawan Sharma, PS Vihal Vihar.

It is the case of the parties that the aforesaid FIR came to be registered by the complainant/second respondent Ms. Rumana under Section 498-A/406/34 IPC on 17.07.2013 against her husband Nasim, who is arrayed as petitioner no.1; as well as her mother-in-law Smt. Shabana, who is arrayed as petitioner no.2; and her brother-in-law Kasim, who is arrayed as petitioner no.3; and her unmarried sister-in-law Ms. Soniya, who is arrayed as petitioner no.4; with regard to certain marital disputes and differences.

Counsel for the State submits that matter is at the stage of investigation and chargesheet is yet to be filed.

Counsel for the petitioners and the second respondent/complainant submit that the matter has since been settled by the parties before the Delhi Mediation Centre, Tis Hazari Courts, Delhi on 05.12.2013. A copy of the said settlement arrived at before the Mediator, Mediation Centre, Tis Hazari Courts, Delhi has also been annexed to this petition. Consequent upon the settlement between the parties they have also obtained a divorce as per their personal law on 15.04.2014. Copy of divorce deed has also been annexed to the petition. Further stated that in terms of the settlement between the parties, the first petitioner was required to pay a sum of Rs.4,40,00/- (Rupees Four Lakh Forty Thousand

Only) in all to complainant towards all her claims and dues. Out of which an amount of Rs.2,42,214/- remains outstanding which has been handed over to respondent No.2/complainant today by way of the two demand drafts bearing Nos.838330 for Rs.1,70,000/- (Rupees One Lac Seventy Thousand only) and 838331 for Rs.72,214/- (Rupees Seventy Two Thousand Two Hundred and Fourteen Only) both dated 07.07.2014 drawn on Syndicate Bank, Nangloi, Delhi-110041.

Further as envisaged in the aforesaid settlement between the parties, the complainant Rumana specifically affirms her obligation to covert the aforesaid demand draft of Rs.1,70,000/- into appropriate fixed deposit in the name of the second son namely Farhan. She states that she shall keep this amount in fixed deposit till he reaches the age of eighteen years.

The complainant further states that she does not wish to pursue the matter any further, and that the FIR in question be quashed as prayed.

Counsel for the State submits that under the circumstances, and keeping in mind the fact that the matter primarily concerns a family dispute, where the complainant is not interested in supporting the prosecution and which is at the stage of investigation, no useful purpose will be served in continuing with the proceedings.

Looking to the decisions of the Supreme Court 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; by observing as under:

"58. ....However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to the victim and the offender and the victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or FIR if it is satisfied that on the face of such settlement, there is hardly any likelihood of the offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated."

And also in 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."

Crl. M.C.3697/2014 Page 7of 8 I am also of the opinion that under the circumstances, it is best if a quietus is given to the matter, especially since the matter has arisen primarily out of a domestic dispute, where all the parties concerned have settled amicably.

Consequently, the petition is allowed and FIR No.242/2013 under Section 498A/406/34 IPC registered at Police Station Nihal Vihar, Delhi, and all the proceedings emanating therefrom, are hereby quashed.

The petition stands disposed off in the aforesaid terms. Dasti.

SUDERSHAN KUMAR MISRA, J.

AUGUST 22, 2014 An