Zakir Hussain vs The State Govt Of Nct Of Delhi & Anr
2015 Latest Caselaw 4659 Del

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  Judgment delivered on: 3rd July, 2015

+                        CRL.M.C. 2593/2015

ZAKIR HUSSAIN                                               ..... Petitioner
                         Represented by:      Mr. Riaz Mohd., Advocate.

                         Versus

THE STATE GOVT OF NCT OF DELHI
& ANR                                         ..... Respondents
             Represented by: Mr. Ravi Nayak, APP for State
             with SI Vishvendra, PS-Seema Puri.
             Respondent No. 2 / complainant Shabana is
             present in person with her father.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

1. By way of this petition filed under Section 482 of the Code of Criminal Procedure, 1973, petitioner seeks quashing of FIR No. 96/2011 registered at PS-Seema Puri for the offences punishable under Sections 498A/406/34 IPC on 23.03.2011 and the consequential proceedings emanating therefrom against the petitioner on the ground that the matter has been amicably settled between the parties.

2. Learned Counsel appearing on behalf of the petitioner submits that the aforesaid case was registered on the complaint of respondent No.2, Ms. Shabana, consequent upon certain

matrimonial and domestic disputes that have arisen between the parties pursuant to her marriage dated 03.03.2002 with the petitioner Zakir Hussain. After investigation, police has filed the chargesheet. Charges have already been framed and the case is pending for prosecution evidence.

3. Learned counsel of the petitioner further submits that during the pendency of the trial, petitioner and respondent No. 2 have amicably settled all the disputes and statements to this effect have been recorded before the Principal Judge, Family Court, Shahdra, Karkardooma, Delhi, on 12.05.2015, as under:-

"Statement of Smt. Shabana, W/o Sh. Zakir Hussain, petitioner no. 1

On SA I do not want to pursue this matter further as matter has already been amicably settled with my husband Sh. Zakir Hussain who is the respondent in this case. It has been settled between us that my husband Sh. Zakir Hussain will pay Rs.80,000/- to me towards "Mehar" and "Iddat" which has been lying deposited with the Mediator Sh. Ahmed Hassan, S/o Sh. Allha Razi and same will be delivered to me at the time of quashing of the case bearing no. 96/11, PS-Seema Puri, U/s 406/498A/34 IPC and I will co-operate for getting the said case before the Hon'ble High Court. In pursuance of the said settlement I have already handed over the custody of both children namely Baby Samiya and Master Atif to my husband who will take care of both the children and I shall have

no visitation rights for the said children. Therefore my petition may be disposed of being settled accordingly.

Statement of Sh. Zakir Hussain, S/o, Sh. Mohd. Shahbuddin, respondent.

On SA I have heard the aforesaid statement of petitioner which is true and correct as per the amicable settlement reached between me and my wife Smt. Shabana and I undertake to comply with the conditions of the aforesaid settlement in pursuance of said settlement the present petition may be disposed of being settled accordingly."

4. It is noted that pursuant to aforesaid statements, the learned Trial Court disposed of the case bearing CC No.910/2014 as settled vide its order dated 12.05.2015.

5. Respondent No. 2 is personally present in the Court with her father, namely, Hanif Khan. For her identification, photocopy of Aadhar Card is placed at page 34 of the Paper Book (Original seen and returned to the respondent No.2). She stated that she has settled all the disputes with the petitioner and does not want to pursue the case further. The respondent No.2/complainant affirms the contents of her affidavit dated 30.06.2015 supporting this petition and submits that now no dispute with petitioner survives and so, the proceedings arising out of the FIR in question be brought to an end.

6. Learned Additional Public Prosecutor appearing on behalf of the State submits that since the matter pertains to domestic and matrimonial dispute, parties have amicably settled the matter and are no longer interested in supporting the prosecution, therefore, looking to the overall circumstances, no useful purpose will be served in continuing the proceedings. Thus, the State has no objection if the present petition is allowed.

7. Under the circumstances and looking to the decision of the Supreme Court in the case of Gian Singh Vs. State of Punjab and Another (2012) 10 SCC 303, wherein the Apex Court 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."

8. While recognizing the need of amicable resolution of disputes in cases like the instant one, the aforesaid dictum has been affirmed by the Apex Court in a recent judgment in Narinder Singh & Ors. Vs. State of Punjab & Anr. 2014 6 SCC 466. The pertinent observations of the Apex Court are as under:-

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 to 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 the 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 predominantly 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 IPC would fall in the category of heinous and serious offences and therefore are 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 IPC 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 307 IPC 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 IPC. 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 latter 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 to a conclusion as to whether the offence under Section 307 IPC 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 IPC 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."

9. In the case of Jitendra Raghuvanshi & Ors. Vs. Babita Raghuvanshi & Anr. (2013) 4 SCC 58, wherein the Supreme Court in respect of the matrimonial disputes has specifically held as follows:-

"15. In our view, it is the duty of the courts to encourage genuine settlements of matrimonial disputes, particularly, when the same are on considerable increase. Even if the offences are non-compoundable, if they relate to matrimonial disputes and the Court is satisfied that the parties have settled the same amicably and without any pressure, we hold that for the purpose of securing ends of justice, Section 320 of the Code

would not be a bar to the exercise of power of quashing of FIR, complaint or the subsequent criminal proceedings.

16. There has been an outburst of matrimonial disputes in recent times. They institution of marriage occupies an important place and it has an important role to play in the society. Therefore, every effort should be made in the interest of the individuals in order to enable them to settle down in life and live peacefully. If the parties ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law, in order to do complete justice in the matrimonial matters, the courts should be less hesitant in exercising their extraordinary jurisdiction. It is trite to state that the power under Section 482 should be exercised sparingly and with circumspection only when the Court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of process of court or that the ends of justice require that the proceedings ought to be quashed...."

10. Since the subject matter of this FIR is essentially matrimonial, which now stands mutually and amicably settled between the parties and the complainant is no longer interested in supporting the prosecution because of which, its chances of success in the matter are now greatly diminished, therefore, I am of the considered opinion that this matter deserves to be given a quietus as continuance of proceedings arising out of the FIR in question would be an exercise in futility.

11. Consequently, FIR No. 96/2011, registered at PS-Vivek Vihar for the offences punishable under Sections 498A/406/34 IPC and all proceedings emanating therefrom, are hereby quashed.

12. In view of the above, the present petition is allowed with no order as to costs.

13. A copy of this order be given dasti to the learned counsel for the parties.

SURESH KAIT, J.

JULY 03, 2015
jg/sb




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