Kapil Kapoor and Another v. The State Govt of NCT of Delhi and Anr

Delhi High Court · 26 Aug 2015 · 2015:DHC:6985

Suresh Kait

CRL.M.C. No.3468/2015

2015:DHC:6985

criminal petition_allowed Significant

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The Delhi High Court quashed criminal proceedings under Sections 498A/406/34 IPC arising from matrimonial disputes based on an amicable settlement and mutual divorce, emphasizing the cautious exercise of inherent powers under Section 482 CrPC.

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Crl.M.C. No.3468/2015 $ 41 HIGH COURT OF DELHI

JUDGMENT

delivered on: 26th August, 2015 CRL.M.C. No.3468/2015
KAPIL KAPOOR AND ANOTHER ..... Petitioners Represented by: Mr. D.K.Sharma, Advocate with
Petitioners in person.

Versus

THE STATE GOVT OF NCT OF DELHI AND ANR ..... Respondents
Represented by: Mr. Hirein Sharma, Additional
Public Prosecutor for the State with SI Rakesh Kumar, P.S. Saket.
Mr.Shashank Rai, Advocate with Respondent No.2 and her father
Sh.Vipin Malik in person.

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, petitioners seek quashing of FIR No. 149/2010 registered at Police Station Saket, New Delhi, for the offences punishable under Sections 498A/406/34 IPC and the consequential proceedings emanating therefrom against the petitioners.

2. Learned counsel appearing on behalf of the petitioners submit that the aforesaid case was registered on the complaint of respondent No.2, namely, Smt. Chhaya Kapoor, consequent upon certain matrimonial and domestic disputes having arisen between the parties. After investigation, police has filed the chargesheet, charges have been framed and the case is 2015:DHC:6985 pending for prosecution evidence. Meanwhile, the respondent No.2 and the petitioners have amicably settled their disputes vide compromise dated 31.05.2014 for a total sum of Rs.15,00,000/- (Fifteen Lacs), out of which a sum of Rs.10,00,000/- (Ten Lacs) has already been paid and the balance amount of Rs.5,00,000/- (Five Lacs) is paid today by way of Demand Draft bearing No.029043 dated 21.08.2015, drawn on Axis Bank, Saket, New Delhi, in favour of the respondent No.2, which facts have not been disputed by the respondent No.2.

3. Learned counsel for the petitioners further submits that consequent to the said settlement, marriage between the petitioner No.1 and respondent No.2 has been dissolved vide decree of mutual divorce dated 01.06.2015 under Section 13 B (2) of the Hindu Marriage Act, 1955. Since the agreed amount has been paid by the petitioners, thus, respondent No.2 does not wish to pursue her case further against the petitioners. Copies of the aforesaid settlement and decree of divorce are annexed to the petition as Annexures B and C respectively.

4. Respondent No.2 is personally present in the Court alongwith her father, namely, Sh. Vipin Malik and coun el named above. She has been duly identified by the Investigating Officer SI Rakesh Kumar of Police Station Saket. The learned counsel under instructions does not dispute the submissions made by learned counsel for the petitioners and submits that the present matter has been amicably settled, marriage between the respondent No.2 and the petitioner No.1 has been dissolved vide decree of divorce dated 01.06.2015, she has received the entire agreed amount and has no complaints whatsoever against the petitioner No.1 and his family members. Respondent No.2 affirms the contents of aforesaid settlement and of her affidavit dated 20.08.2015 supporting this petition and submits that now no dispute with petitioners survives and so, the proceedings arising out of the FIR in question be brought to an end.

5. Learned Additional Public Prosecutor appearing on behalf of the State submits that after investigation, chargesheet has been filed, charges have been framed and the case is pending for prosecution evidence. He submits that the present matter is a matrimonial one and since the respondent No.2 does not wish to pursue the case further against petitioners, no purpose would be served if the petitioners are directed to face trial. However, submits that if this Court is inclined to allow the present petition, then State has no objection, if heavy cost is imposed on the petitioners as FIR in question pertains to the year 2010.

6. In view of the overall circumstances; and looking to the pronouncements of the Supreme Court in Gian Singh Vs. State of Punjab and Another[1], 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 & Ors. Vs. State of Punjab & Anr.2, wherein 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 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.

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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.”

7. In the case of Jitendra Raghuvanshi & Ors. Vs. Babita Raghuvanshi & Anr.3, the Full Bench of 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….”

8. Both the parties who are present in the Court today, approbate the aforesaid settlement dated 31.05.2014 and undertake to remain bound by the same.

9. 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, in view of the law laid down by the Hon'ble Supreme Court in the cases of Gian Singh (supra), Narinder Singh (supra), and Jitendra Raghuvanshi (supra) and in the facts and circumstances as noted above, 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.

10. Consequently, FIR No. 149/2010 registered at Police Station Saket, New Delhi, for the offences punishable under Sections 498A/406/34 IPC and all proceedings emanating therefrom are hereby quashed qua the petitioners.

11. Before parting with the order, I find force in the submissions of learned Additional Public Prosecutor qua imposition of cost upon the petitioners, as because of the FIR in question, the government machinery has been used and precious public time and money has been consumed. However, the petitioner No.1 has come forward to contribute a sum of Rs.50,000/- (Fifty Thousand) for the welfare purposes.

12. Accordingly, the petitioner No.1 is directed to deposit a sum of Rs.50,000/- (Fifty Thousand) in favour of the Delhi Police Martyr Fund within two weeks. Proof thereof shall be placed on record under intimation to the concerned Investigating Officer.

13. In view of the above, the present petition is allowed.

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

SURESH KAIT (JUDGE) AUGUST 26, 2015 sb

Kapil Kapoor and Another v. The State Govt of NCT of Delhi and Anr

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