Harish & Ors. v. State & Ors.

1. Present petition under Section 482 Cr.P.C. has been preferred by the petitioners for quashing of the FIR No.78/2010 registered under Sections 498A/406/34 IPC PS Rajouri Garden. It is stated that the matter has been settled with the respondent No.2 / complainant – Ms.Jyoti amicably before Mediation Centre. 2014:DHC:4439

2. It is relevant to note that earlier the petitioners had filed similar petition W.P.(Crl.) 1580/2012 & Crl.M.A.No.18591/2012 titled „Harish & ors. vs. State‟ for quashing of the FIR in question. Complainant – Ms.Jyoti was impleaded as petitioner No.6 in the said petition. The said matter was taken up on 07.11.2012 before this Court (Justice V.K.Shali). The Court was of the view that the settlement was not with the free consent of the complainant – Ms.Jyoti. Specific observations in the order dated 07.11.2012 need reproduction: “3. It has also been stated by Mr.Sharma, learned APP that the non claim of any permanent alimony by the complainant seems to be actuated because of some fear. The complainant was asked questions regarding non claim of permanent alimony though she claimed it to be done voluntarily by her but the conduct did not reflect the same and tears started rolling down from her cheeks.

4. Let the State to verify the facts independently through some responsible officer and submit a report regarding non claim of permanent alimony by the complainant or her parents for and on behalf of the daughter, who are present in Court.

5. List on 30.01.2013.”

3. On 30.01.2013, parents of the complainant – Ms.Jyoti appeared and informed the Court that the complainant was pressurized to settle the dispute with the petitioners No.1 to 5. Status report filed by the State indicated that the settlement was not with the free consent of the complainant – Ms.Jyoti.

4. Considering the facts and circumstances, by an order dated 30.01.2013 the said writ petition was dismissed. It appears that the petitioners did not challenge the said orders.

5. Subsequently, the petitioners filed the instant petition (Crl.M.C. 2021/2013) on 17.05.2013 under Section 482 Cr.P.C. for quashing of the FIR in question. Since the petitioners had claimed change of circumstances after dismissal of previous petition, notice was ordered to be issued to the complainant – Ms.Jyoti. On 28.10.2013, counsel for the complainant – Ms.Jyoti put appearance and informed the Court that the settlement was not with the consent of the complainant – Ms.Jyoti. She was directed to appear in person to ascertain if the settlement had taken place with her free consent. Today, the complainant appeared in person with her counsel and parents. I have enquired from her if she has settled the dispute with the petitioners with her free consent. She categorically stated that the said settlement was not with her free consent and nothing has been paid to her towards her maintenance etc.

6. Learned counsel for the petitioners relying upon „Mohd.Shamim and ors. vs. Nahid Begum (Smt.) and anr.‟, (2005) 3 SCC 302; „Manoj Sharma vs. State & ors.‟, JT 2008 (11) SC 674, and „Jaibir & ors. vs. State & anr.‟, 142 (2007) DLT 141 emphasized that the complainant cannot be permitted to resile from the agreement / settlement arrived at before the Mediation Centre. Divorce by mutual consent has already taken place and the complainant has withdrawn her petition under DV Act. The complainant‟s only motive is to harass the petitioners by continuing the proceedings under Sections 498A/406/34 IPC. Learned counsel for the complainant has vehemently argued that the present petition is not maintainable in view of dismissal of earlier petition on similar grounds.

7. Since the earlier petition on similar grounds was dismissed by a speaking order, the present petition on similar grounds without any change in circumstances is not maintainable.

8. Besides above, the complainant who has categorically denied to have settled the dispute amicably with the petitioners with her free consent cannot be compelled to give her consent for quashing of the FIR in question under Sections 498A/406/34 IPC which otherwise is noncompoundable. Perusal of the compromise deed reveals that despite the complainant agreeing to withdraw the petition under DV Act; to give divorce by mutual consent and to co-operate in quashing of the FIR in question, nothing was given in return to her towards her permanent alimony. Ex-facie, the settlement between the parties appears to be under some pressure. It is pertinent to note that even before filing of the second motion for divorce by mutual consent, the petition for quashing of the FIR was moved.

9. In the light of above discussion, I find no merit in the present petition and it is dismissed with costs of ` 5,000/- to be paid to the complainant within two weeks. Pending application also stands disposed of.

JUDGE SEPTEMBER 05, 2014 / tr