Vivek Bharadwaj & Ors. v. The State Govt of NCT of Delhi & Anr.

1. This petition under Section 482 Cr.P.C. has been filed for quashing of FIR No.81/2018 for offences under Sections 406/498A/377/34 IPC, registered at Police Station Crime Women Cell, Nanak Pura and the proceedings emanating therefrom.

2. The principal ground on which the petition has been filed is that the respondent No.2/complainant has settled all her disputes amicably with the petitioners. The settlement was arrived at between the parties before the Family Courts, Patiala House, Delhi on 03.12.2021. Copy of the settlement dated 03.12.2021 is annexed with the petition (Annexure P-2, page 34 of the paperbook).

3. It is stated in the settlement dated 03.12.2021, arrived at before the Family Courts, Patiala House, Delhi, that the parties seek divorce mutually as per Hindu Marriage Act in accordance with law provided under Section 13 (B) (1) and (2) of the Hindu Marriage Act.

4. It is agreed between the parties that husband shall pay lump sum 2022:DHC:3005 amount of Rs.35,00,000/- to the wife as full and final settlement (against stridhan and dowry, maintenance towards past, present and future qua this marriage) including child maintenance upto 18 years by way of three installments. The petitioner will pay a sum of Rs.8,75,000/- in the form of DD to the respondent at the time of recording of statement of both parties before the Family Court under the first motion proceedings. Thereafter Rs.17,50,000/- shall be paid in the form of an FDR in the name of minor son (Master Sidharth Bhardwaj) at the time of second motion and the remaining amount of Rs.8,75,000/- will be paid in the form of DD at the time of quashing of FIR to respondent no. 2. 4.[1] It was further agreed between the parties that respondent no. 2 shall withdraw the monthly recurring interest of the FDR for the purpose of education and monthly expenses of minor child and on maturing of FDR, permission of the petitioner is not required for withdrawal of the money by the child on attaining majority. 4.[2] It is also agreed between the parties that respondent no. 2 shall not have any right, title or interest, claim over the property of the husband after completion of all the proceedings going on between them. 4.[3] It is agreed between the parties that the first motion petition shall be filed in the second week of December, 2021 and second motion petition shall be filed soon after the completion of the statutory period of the order U/s 13 B (1), of HMA, including the Domestic Violence and Maintenance petition under Section 125 Cr.P.C. 4.[4] It is further agreed between the parties that the minor child will be under the absolute custody of respondent no. 2 and petitioner no. 1 will not have any visitation rights in future. 4.[5] It is further agreed between the parties that in the event of nonappearance by either of the parties at the time of second motion, if respondent failed to appear she will repay the amount received alongwith 2% per month interest to petitioner no. 1 and if petitioner no. 1 failed then the said amount shall stand forfeited by the respondent. 4.[6] It is also agreed that the parties shall not file any other complaint, petition execution application in future as they have arrived at the present settlement without any undue pressure, influence or coercion and in case the conditions of the settlement are not complied with, parties are at liberty to seek the revival of their respective cases.

5. The respondent No.2/complainant has also filed affidavit (page No.39-41 of the paper book) affirming the fact that her claims and grievances against the petitioners in the abovementioned FIR stands settled. It is also stated that the complainant does not have any objection if the FIR against the petitioners is quashed as she has already settled her claims due to her.

6. It is to be noted here that apart from usual sections invoked in matrimonial disputes, i.e., Section 406/498A/34 IPC, in the present FIR, Section 377 IPC has also been invoked. Now the matter has been settled between the parties and this Court has to take a call as to whether the FIR in question can be quashed. A co-ordinate bench presided over by HMJ Subramonium Prasad in CRL.M.C. No. 599/2021 tilted ‘Rifakat Ali & Ors Vs. State & Anr.’ decided on 26.02.2021 has taken the following view on a quashing petition filed under the similar circumstances: “The power of the High Courts to quash FIRs while exercising its powers under Section 482 CrPC even for offences which are not compoundable under Cr.PC has been settled in a number of judgments. In Gian Singh v. State of Punjab & Anr. reported as (2012) 10 SCC 303, the Supreme Court has observed as under: "61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz.: (i) to secure the ends of justice, or

(ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc.; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding." After relying on Gian Singh (supra), this position has been laid down in Narinder Singh & Ors. v. State of Punjab & Anr. reported as (2014) 6 SCC 466, wherein the Supreme Court has observed as under: "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." In State of M.P. v. Laxmi Narayan & Ors. reported as (2019) 5 SCC 688, the Supreme Court has observed as under: "15. Considering the law on the point and the other decisions of this Court on the point, referred to hereinabove, it is observed and held as under:

15.1. That the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves;

15.2. Such power is not to be exercised in those prosecutions which involved 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;

15.3. Similarly, such power is not to be exercised for the offences under the special statutes 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;" A perusal of the three judgments show that the Supreme Court has consistently held that the power under Section 482 CrPC should not be used for quashing heinous and serious offences of mental depravity or offences like murder, rape, dacoity etc. since these offences are not private in nature and have a serious impact in society. An offence under Section 377 IPC is a henious offence and points to the mental depravity of the accused and hence ought not to be quashed by the High Court on the basis of compromise by exercising its jurisdiction under Section 482 CrPC. The present case arises out of matrimonial dispute and the allegation has been made by the wife against the husband. The parties have decided to part ways and move ahead in their lives without having any acrimony against each other. In the facts and circumstances of the case, this Court is inclined to exercise its powers under Section 482 CrPC even for an offence under Section 377 IPC on the ground that the dispute is private in nature. The learned counsel for the petitioners has placed reliance on orders of this Court in CRL.M.C.830/2019 titled as Dinesh Kumar & Ors. v. State & Anr., CRL.M.C.1613/2019 titled as Anmol Katyal & Ors. v. State (NCT of Delhi) & Anr., CRL.M.C. 5216/2018 titled as Gajender Singh & Ors. v. State (NCT of Delhi) & Ors. and CRL.M.C. 4117/2018 titled as Joginder Singh Bote & Ors. v. NCT of Delhi & Anr. In all these cases wife has levelled allegations on the husband committing an offence under Section 377 IPC. This Court has exercised its jurisdiction under Section 482 CrPC and has quashed the FIRs on the basis of the compromise entered into between the husband and wife. It is made clear that this Court is exercising its powers under Section 482 CrPC to quash an offence of Section 377 IPC on the ground that the parties have compromised the matter with each other only because it arises out of a matrimonial dispute, the allegation has been levelled by wife against her husband of committing an offence under Section 377 IPC and the parties have decided to move ahead in life.”

7. So, the view of the co-ordinate bench is that in matrimonial cases, where settlement has taken place, even the offence under Section 377 IPC can be compromised and FIR can be quashed as parties have to move ahead in life. I concur with the said view.