Rajesh Dahima & Ors. v. State of NCT Through P S Janakpuri & Ors.

Delhi High Court · 21 Jul 2014 · 2014:DHC:3380

Sudershan Kumar Misra

Crl.M.C. No.3153/2014

2014:DHC:3380

criminal petition_allowed Significant

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The Delhi High Court quashed a criminal FIR under Sections 498-A/406/34 IPC arising from matrimonial disputes based on a bona fide compromise between the parties and the remote possibility of conviction.

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Crl.M.C. No.3153/2014 HIGH COURT OF DELHI
CRL.M.C. 3153/2014 & Crl.M.A. Nos.10929/2014, 10930/2014
RAJESH DAHIMA & ORS ..... Petitioners
Through Mr. Vikas Kumar and Mr. Manish Paliwal, Advocates.

VERSUS

STATE OF NCT THROUGH P S JANAKPURI & ORS ..... Respondents
Through Ms. Nishi Jain, APP SI Khiloni, PS. Janakpuri.
Mr. Sukhmeet Singh, Advocate with complainant in person.

CORAM:

HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA SUDERSHAN KUMAR MISRA, J. (ORAL)

JUDGMENT

1. This petition under Section 482 Cr.P.C. for quashing of FIR No.92/2011 dated 05.04.2011 under Section 498-A/406/34 IPC registered at police station Janak Puri, and the proceedings emanating therefrom. It is alleged that the first petitioner, Rajesh Dahima married to Sonal Dahima, who is arrayed as respondent No.2 to this petition, at whose instance, the aforesaid FIR was registered. The charge sheet is stated to have been filed in the matter.

2. Issue notice.

3. Ms. Nishi Jain, Additional Public Prosecutor for the State accepts notice, and the complainant Sonal Dahima is also present in person, and is identified by her counsel as well as the Investigating Officer. 2014:DHC:3380

4. It is stated that the first petitioner as well as the complainant have entered into a compromise on 08.07.2014. A copy of the said compromise deed arrived at between the parties is annexed to this petition. The said compromise takes note of the institution of the aforesaid FIR No.92/2011 as also the proceedings under Section 12 of the Domestic Violence Act; as well as her application under Section 125 Cr.P.C. for maintenance; both of which are pending before the appropriate courts. In addition, the petitioner, Rajesh Dahima, is also stated to have moved a petition under Section 9 of the Hindu Marriage Act against the complainant at Bhopal, which was subsequently transferred by the Supreme Court to the Family Court¸ Delhi. That application under Section 9 Hindu Marriage, Act, 1955, is stated to have been withdrawn by the petitioner 16.07.2014 in terms of the aforesaid compromise, which fact has also been affirmed by counsel for the second respondent and the respondent herself.

5. In terms of the settlement arrived at between the parties, the complainant is stated to have settled all her claims against the petitioner for a sum of Rs.10 lakhs, which amount includes a sum of Rs.[2] lakhs that has been given by the petitioner to the complainant at the time of his application for anticipatory bail. It is also averred that a petition for divorce by mutual consent under Section 13 (B) (1) of the Hindu Marriage Act, 1955 has been jointly moved by the parties.

6. Counsel for the petitioner, as well as the respondent No.2, on instructions, state that at the stage of orders on the First Motion, which were passed on 16.07.2014, a further sum of Rs.1.[5] lakhs was handed over to the complainant / second respondent herein. The complainant also acknowledges the receipt of this amount. Another amount of Rs.3.[5] lakhs has been handed over to the complainant / second respondent in Court today by way of two demand drafts, particulars whereof are as follows; Sr.No. DD No. Dated Drawn on Amount(Rs.)

1. 615320 14.07.14 State Bank of India 2,50,000/-

2. 260297 14.07.14 -do- 1,00,000/-

7. In this manner, total amount of Rs.[7] lakhs has been received by the complainant. It was further agreed that another sum of Rs.1.[5] lakhs shall be paid by the petitioner to the complainant / respondent No.2 on the withdrawal of her aforesaid complaint filed under Section 12 of the Domestic Violence Act; and the remaining amount of Rs.1.[5] lakhs shall be paid to the complainant at the time of the orders on the Second Motion petition granting divorce before the Family Court.

8. For the removal of any doubts, and at the request of the complainant, the petitioner, who is present in person, undertakes to this Court to cooperate with the complainant in moving the Second Motion petition immediately within 15 days of the expiry of the prescribed period of six months in terms of the Hindu Marriage Act, 1955.

9. The undertaking of the first petitioner is accepted by this Court, and he shall remain bound by the same. Consequences of any breach of this undertaking have been explained to him.

10. The complainant also personally approbates the aforesaid terms, as also the compromise deed dated 08.07.2014 executed between her and the first petitioner. She further states that in view of the aforesaid compromise, she is not interested in pursuing her aforesaid complaint registered under the aforesaid FIR No.92/2011 any further; and that therefore, the relief sought by the petitioners in this application be granted.

11. Counsel for the State also states that looking to the fact that the matter has arisen out of a domestic dispute as a result of the unsuccessful marriage between the first petitioner and the complaint / second respondent; and also in view of the fact that the complainant / second respondent is not willing to support the prosecution case; no useful purpose will be served in continuing with these proceedings.

12. In view of the overall circumstances, and looking to the pronouncements 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; and also Narinder Singh and Ors. v. State of Punjab and Anr. 2014(2) Crimes 27 (SC) where the Supreme Court held as follows:-

“31. In view of the aforesaid discussion, we sum up and

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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:

(I) 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.

(II) 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

(III) 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.

(IV) On the other, 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.

(V) 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.

(VI) 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.

(VII) 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.” I am of the opinion that the disputes in question have arisen primarily out of a matrimonial relationship where the parties have resolved the entire dispute themselves; and since the complainant is now not interested in supporting the prosecution, the possibility of conviction is remote and bleak; and therefore, no useful purpose would be served in continuing with the proceedings and the matter deserves to be given a quietus.

13. Accordingly, the petition is allowed and FIR No.92/2011 dated 05.04.2011 under Section 498-A/406/34 IPC registered at police station Janak Puri, and the proceedings emanating therefrom, are hereby quashed.

14. The petition, along with Crl.M.A. Nos.10929/2014 and 10930/2014, stands disposed off.

SUDERSHAN KUMAR MISRA, J JULY 21, 2014 dr

Rajesh Dahima & Ors. v. State of NCT Through P S Janakpuri & Ors.

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