Kanti Bhai Damani vs N.C.T. Of Delhi &Ors.;
2017 Latest Caselaw 362 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                           Decided on: 20th January, 2017

+                    CRL.M.C. 3817/2008

       KANTI BHAI DAMANI
                                                                ..... Petitioner
                          Represented by:     Mr. Rajesh Chhetri, Mr. Akash
                                              Tyagi, Advs.

                          versus

       N.C.T. OF DELHI &ORS.
                                                               ..... Respondent
                          Represented by:     Ms. Rajni Gupta, APP for State
                                              Mr. Vijay Aggarwal, Mr. N.K.
                                              Jha, Advs. for R-2.

CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J. (ORAL)

Crl.M.A. 10079/2013 Learned counsel for the petitioner/ applicant seeks leave to withdraw the application as he has already handed-over the keys of the flat at Keshav Puram to the respondent No.2.

Application is dismissed as withdrawn.

Crl.M.A. 6279/2012 (modification by R-2)

1. Crl.M.C. 3817/2008 was filed by the petitioner/ non-applicant seeking quashing of FIR No.83/2002 under Sections 498A/406 IPC registered at PS Shalimar Bagh on the complaint of respondent No.2/ applicant as the parties

had settled the matter. This petition was taken up along with Crl.M.C. 3943/2008 wherein the respondent No.2/ applicant sought quashing of the FIR No.538/2007 under Section 453 IPC registered against her at PS Keshav Puram. Both these petitions i.e. Crl.M.C. 3817/2008 and Crl.M.C. 3943/2008 were disposed of by a common order dated 24 th January, 2012 after the parties entered into a settlement as under:

"1. Both these petitions are filed under Section 482 CrPC for quashing of FIRs No. 83/2002 (under Sections 498A/406 IPC, registered at P.S.Shalimar Bagh) and 538/2007 (under Section 453 IPC, P.S. Keshav Puram). The petition being Crl.M.C.

3817/2008 relates to FIR No. 83/2002 and Crl.M.C. 3943/2008 relates to the FIR No. 538/2007.

2. Both the parties are present in person and are identified by their respective counsels and the Investigating Officer. The petitioner Kanti Bhai Damani was married to the respondent Kusum Lata in the year 1980.

3. FIR No. 83/2002, P.S. Shalimar Bagh was registered against the petitioner on the complaint of his wife/respondent No. 2 under Section 498A/406 IPC, whereas FIR No. 538/2007, P.S. Keshav Puram was registered on her complaint on the order of M.M. under Section 156(3) CrPC against the petitioner.

4. A civil suit being CS (OS) No. 1045/2004 was filed by the respondent Kusum Lata against the petitioner in this court seeking recovery of stridhan etc. In the said civil suit, a compromise was arrived at between the parties on 19.5.2008 and in pursuant to that, civil suit was decreed vide judgment dated 20.5.2008 of this court. It is noted that despite the matter having already been settled between the parties, and the decree passed, they are agitating on the aspect of implementation of the settlement and the decree. The bone of contentions between the parties appears to be the flat bearing No. Plot No. B-1, Flat

No. 10, Top Floor, Vivek Vihar, which was seized by the police in case FIR No. 316/2002 of P.S. Tilak Marg where both the parties were arrayed as accused.

5. Having talked to the parties and their counsels jointly and separately, the parties have arrived at final settlement as enumerated hereinafter.

5.1. While arriving at the settlement between the parties, this fact was also categorically recorded that the said Vivek Vihar flat was under seizure. As per said settlement, respondent Kusum Lata was to become the absolute owner of this flat and was entitled and authorized to deal with the said flat in any manner. Since the said flat continues to be still seized in the aforesaid FIR, the title documents of the transfer of the said property in the name of the respondent Kusum Lata could not be executed nor the possession could be given to her by the petitioner. It is not certain as to what would be the fate of that case and also that flat in the aforesaid FIR. Having talked to the parties and their counsels at length in the court, it has been agreed that depending upon the outcome of that case in favour of the parties, the petitioner shall execute all the required documents of transfer of title of the said flat in favour of the respondent Kusum Lata within eight weeks of the outcome of the favourable decision. However, in the event of the petitioner refusing or avoiding to execute the said documents in favour of the respondent, the officer of this court will be nominated by Registrar General and authorized on behalf of the petitioner to execute the documents of title of transfer of said flat in favour of respondent Kusum Lata. In the event of the outcome of aforesaid criminal case being against the parties or the property continuing under seizure or there being adverse order, the respondent will have recourse of transfer of the documents of title of the said property as and when the parties would be legally entitled.

5.2. With regard to the jewellery that was lying in two lockers in the joint name of both the parties in Punjab National Bank, it

was already agreed and is also maintained that the said jewellery shall be shared by both the parties by weight after the same is de-seized by opening the lockers in the presence of the parties/nominees and I.O. of the said FIR. It is argued that in the event there being no favourable order, both the parties will have to accept the fate.

5.3. As per the settlement and decree, the petitioner was permitted to continue to reside at the flat bearing No. C-6/78 B Keshav Puram till his flat which was seized in FIR No. 316/2002, P.S. Tilak Marg was de-seized. Having discussed with the parties, it is agreed that now, the petitioner shall vacate this flat and hand over its vacant possession to the respondent Kusum Lata within eighteen months. In the event of petitioner not vacating the said flat and handing over the possession in eighteen months, he shall pay rent @ 50,000/- per month for six months thereafter and if he still fails, he shall be liable to be evicted by the police authorities. In the event of the respondent Kusum Lata avoiding or declining to take possession of the vacant flat after 18 months or 24 months, as the case may be, the petitioner will hand over the vacant possession of the said flat to the SHO of P.S. Keshav Puram, who shall call upon the respondent Kusum Lata to take over the possession. It is further clarified that after taking the possession of the said flat by respondent Kusum Lata, the petitioner shall be left with no claim or right or interest of any kind therein and shall not interfere in the peaceful enjoyment and possession thereof by the respondent or her nominee.

5.4. As per the terms of the settlement, the parties were to get separated by decree of mutual consent divorce. It is agreed that the petitioner shall prepare first motion petition of divorce within a week from today and the respondent shall co-operate and appear before the court for making statement. Likewise, second motion petition will also be prepared by the petitioner and will be signed and presented to the court. In the event of any of the parties not co-operating in signing or appearing for

making statement in proceedings for mutual consent divorce, they would be at liberty to come to this court forthwith.

6. In view of the above and keeping in view the amicable settlement arrived at between the parties, no useful purpose would be served by continuing with the above FIRs. Accordingly, FIR No. 83/2002, under Sections 498A/406 IPC, registered at P.S. Shalimar Bagh and FIR No. 538/2007, under Section 453 IPC, P.S. Keshav Puram as also the consequential proceedings arising therefrom are hereby quashed.

7. Petitions stand disposed of.

8. Order dasti to both the parties."

2. After Crl.M.C. 3817/2008 was disposed of, the respondent No.2/applicant filed the present application being Crl.M.A. 6297/2012 seeking modification of the order dated 24th January, 2012 on the ground that though the parties have acted partially on the settlement, however the respondent No.2/ applicant was neither willing nor ready for grant of decree of divorce to the petitioner/ non-applicant by way of mutual consent; thus terms in Para 5.4 of the order dated 24th January, 2012 be modified.

3. In support of his contention regarding maintainability of the present application seeking modification of the order dated 24 th January, 2012 learned counsel for the respondent No.2/ applicant relies upon the decision in V. Narasimha Raju Vs. V. Gurumurthy Raju & Ors. 1963 SCR (3) 687; Ouseph Poulo & Three Ors. Vs. Catholic Union Bank Ltd. & Ors. 1964 SCR (7) 745 and Pramod Bagga & Ors. Vs. State 2007 (98) DRJ 208.

4. In V. Narasimha Raju the Supreme Court was dealing with Section 23 of the Contract Act which provides that every agreement of which the object or consideration is unlawful is void and is opposed to public policy. Thus

the same could not be enforced. Even in Ouseph Poulo (supra) the Supreme Court held that agreements which are made for stifling prosecution are opposed to public policy and cannot be enforced. The two decisions of the Supreme Court relied upon by learned counsel for the respondent No.2/ applicant have no application to the facts of the present case. A settlement arrived at between the parties to seek divorce by mutual consent is not an agreement to do an unlawful act or an agreement to stifle prosecution opposed to public policy.

5. This Court in Pramod Bagga was dealing with a case where the judgment was passed without impleading a necessary party and since there was a violation of principles of natural justice and the necessary party had not been heard, the Court recalled its order. The Court thus noted that when a mistake of this kind is pointed out which is fundamental in nature i.e. principles of natural justice had been violated, the Court would have no hesitation to recall the order as necessary parties were not heard, it was imperative to hear them and the jurisdiction of the Court to hear the affected parties was independent of Section 362 Cr.P.C. Even the decision in Pramod Bagga has no application to the facts of the case as there is no violation of the principles of natural justice in the present case.

6. Supreme Court in Hari Singh Mann Vs. Harbhajan Singh Bajwa & Ors. (2001) 1 SCC 169 laid down:

"9. There is no provision in the Code of Criminal Procedure authorising the High Court to review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code. This Court in State of Orissa v. Ram Chander Agarwala [(1979) 2 SCC 305 : 1979 SCC (Cri) 462 : AIR 1979 SC 87] held (SCC p. 315, para 20)

"20. Before concluding we will very briefly refer to cases of this Court cited by counsel on both sides. Talab Haji Hussain [AIR 1958 SC 376 : 1958 Cri LJ 701 : 1958 SCR 1226] relates to the power of the High Court to cancel bail. The High Court took the view that under Section 561-A of the Code, it had inherent power to cancel the bail, and finding that on the material produced before the Court it would not be safe to permit the appellant to be at large cancelled the bail, distinguishing the decision in Lala Jairam Das v. King-Emperor [(1944-45) 72 IA 120 : AIR 1945 PC 94 : 46 Cri LJ 662] and stated that the Privy Council was not called upon to consider the question about the inherent power of the High Court to cancel bail under Section 561-A. In Sankatha Singh v. State of U.P. [AIR 1962 SC 1208 : 1962 Supp (2) SCR 817 : (1962) 2 Cri LJ 288] this Court held that Section 369 read with Section 424 of the Code of Criminal Procedure specifically prohibits the altering or reviewing of its order by a court. The accused applied before a succeeding Sessions Judge for re-hearing of an appeal. The learned Judge was of the view that the appellate court had no power to review or restore an appeal which has been disposed of. The Supreme Court agreed with the view that the appellate court had no power to review or restore an appeal. This Court, expressing its opinion that the Sessions Court had no power to review or restore an appeal observed that a judgment, which does not comply with the requirements of Section 367 of the Code, may be liable to be set aside by a superior court but will not give the appellate court any power to set it aside itself and re- hear the appeal observing that 'Section 369 read with Section 424 of the Code makes it clear that the appellate court is not to alter or review the judgment once signed, except for the purpose of correcting a clerical error'. Reliance was placed on a decision of this Court in Supdt. and Remembrancer of Legal Affairs, W.B. v. Mohan Singh [(1975) 3 SCC 706 : 1975 SCC (Cri) 156 : AIR 1975 SC 1002] by Mr Patel, learned counsel for the respondent wherein it was held that rejection of a prior application for

quashing is no bar for the High Court entertaining a subsequent application as quashing does not amount to review or revision. This decision instead of supporting the respondent clearly lays down, following Chopra case [U.J.S. Chopra v. State of Bombay, AIR 1955 SC 633 : 1955 Cri LJ 1410] that once a judgment has been pronounced by a High Court either in exercise of its appellate or revisional jurisdiction, no review or revision can be entertained against that judgment as there is no provision in the Criminal Procedure Code which would enable the High Court to review the same or to exercise revisional jurisdiction. This Court entertained the application for quashing the proceedings on the ground that a subsequent application to quash would not amount to review or revise an order made by the Court. The decision clearly lays down that a judgment of the High Court on appeal or revision cannot be reviewed or revised except in accordance with the provisions of the Criminal Procedure Code. The provisions of Section 561-A of the Code cannot be invoked for exercise of a power which is specifically prohibited by the Code."

10. Section 362 of the Code mandates that no court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or an arithmetical error. The section is based on an acknowledged principle of law that once a matter is finally disposed of by a court, the said court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a court of competent jurisdiction in a manner prescribed by law. The court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or an arithmetical error. The reliance of the respondent on Talab Haji Hussain case [AIR 1958 SC 376 : 1958 Cri LJ 701 : 1958 SCR 1226] is misconceived. Even in that case it was pointed that inherent powers conferred on High Courts under

Section 561-A (Section 482 of the new Code) has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself. It is not disputed that the petition filed under Section 482 of the Code had been finally disposed of by the High Court on 7-1-1999. The new Section 362 of the Code which was drafted keeping in view the recommendations of the 41st report of the Law Commission and the Joint Select Committees appointed for the purpose, has extended the bar of review not only to the judgment but also to the final orders other than the judgment."

7. Notice was duly issued to the respondent No.2/ applicant who participated in the proceedings and was duly represented by a counsel. Only after the parties settled their matter that the terms of settlement were incorporated. This is not a case where principles of natural justice were not followed. Thus this Court finds no reason to recall the order dated 24 th January, 2012.

8. Crl.M.A. 6279/2012 is dismissed.

(MUKTA GUPTA) JUDGE JANUARY 20, 2017 'ga'