Full Text
HIGH COURT OF DELHI
Date of Decision: 05th April, 2021 IN THE MATTER OF:
SOMBIR DAGAR & ORS ..... Petitioners
Through None
Through Ms. Meenakshi Chauhan, APP for the State.
Mr. Vipul Goel, Advocate for respondent No.2/Applicant.
SOMBIR DAGAR ..... Petitioner
Through None
Through Ms. Meenakshi Chauhan, APP for the State.
Mr. Vipul Goel, Advocate for respondent No.2/Applicant.
JUDGMENT
1. These applications have been filed for recalling of order dated 2021:DHC:1171 28.01.2015 passed in CRL.M.C. 314/2015 and CRL.M.C 315/2015.
2. CRL.M.C. 314/2015 is directed against F.I.R. No. 412/14 registered at Police Station Vasant Vihar, New Delhi for offences under Sections 498A/406/34 IPC.
3. CRL.M.C. 315 is directed against F.I.R. No. 601/14 registered at Police Station Saket, New Delhi for offences under Sections 323/328/506 IPC.
4. These petitions arise out of the matrimonial disputes between the petitioner No.1 and the respondent No.2. The marriage of the petitioner No.1 and the respondent No. 2 was solemnized according to Hindu Rites Customs and ceremonies at Katwaria Sarai, New Delhi on 30.04.2012 and a child was born on 23.09.2013. Disputes arose between the parties and F.I.R. No. 412/14 was registered at Police Station Vasant Vihar, New Delhi for offences under Sections 498A, 406, 34 IPC. Matter was referred to mediation and a settlement was arrived at between the parties. Both the parties amicably resolved their mis-understandings and decided to live together again as husband and wife. Noticing that the petitioner and the respondent are happily residing together since 27.08.2014, this Court by an order dated 28.01.2015, on the basis of the mediation settlement and after noticing the fact that the petitioners are living together, quashed the two FIRs i.e. FIR No.412/2014, under Sections 498-A/406/34 of IPC registered at Police station Vasant Vihar, Delhi [in CRL.M.C.314/2015] and FIR No.601/2014 under Sections 323/328/506 of IPC registered at P.S. Saket, New Delhi [in CRL.M.C.315/2015]. It was noted in the said order that if the marriage of respondent No.2 with petitioner-husband again runs into rough weather, then this order will not stand in her way to have recourse to law.
5. The instant applications have been filed for recalling the order dated 28.01.2015 in CRL.M.C.314/2015 and in CRL.M.C.315/2015 on the ground that after the compromise the applicant has been treated with utmost cruelty and the order dated 28.01.2015 has been obtained by the petitioners by giving false assurances to the Court.
6. It is stated in the present application that after the FIRs were quashed second child was born and soon after the delivery of second child, the applicant/respondent No. 2 was humiliated and was severely beaten up by the petitioners. Respondent No. 2 was given a severe beating on 01.10.2015 and was thrown out from her matrimonial house, MLC was conducted, FIR No. 0017/ 2016 dated 01.03.2016 under Sections 506 IPC at P.S. South Campus was registered on the complaint of the respondent No.2. The applicant/respondent No. 2 stayed for two years in her parental house as she had been thrown out of her matrimonial house by the petitioners. It is stated that with the intervention of Mediation Cell, Patiala House Courts the applicant/respondent No. 2 went back to her matrimonial house in the year
2017. The applicant/respondent No. 2 has filed a case under Protection of Women from Domestic Violence Act, 2005. A petition for maintenance was also filed by respondent No.2 against the petitioner. With the intervention of the family members, the applicant/respondent No. 2 was once again forced to compromise with the petitioner and the applicant/respondent No. 2 had to withdraw her complaints. It is stated that on 30.08.2019, the petitioner gave a severe beating to the respondent No.2. On 19.11.2019, petitioner No.1, petitioner No. 2 (father- in-law of the respondent No. 2), and petitioner No.3 Smt. Shakuntala started beating the applicant/respondent No. 2 mercilessly. MLC was conducted and FIR No.0671/2019 dated 19.11.2019 under Sections 323/ 506 IPC was lodged at P.S. Sonipat City. The petitioner No. 1 was arrested on 19.11.2019. Thereafter, petitioner No.3 and petitioner No.2 along with the petitioner's brother-in-laws namely Sh Jagbir and Sh. Tarun Thakran forced the parents of the applicant/respondent No.2 to compromise once again in order to get bail for the petitioner. It is stated that on 29.02.2020, the applicant/respondent No. 2 was once again beaten up by petitioner Nos.[1] to 3. The applicant/respondent No.2 filed a police complaint at Police Chowki Court Complex, Sonipat. On 29.02.2020, petitioner No.1 was enlarged on bail, petitioner Nos.[2] & 3 forced the applicant/respondent No.2 once again to compromise and live with the petitioner. As per the compromise, it was agreed that the applicant/respondent No.2 alongwith the petitioner No.1 and children would stay on the first Floor. It is stated that on 01.03.2020, the petitioners and other in-laws alongwith some other persons abused and molested the applicant/respondent No.2, tore her clothes in front of her children. It is stated that on 04.03,2020, the applicant/respondent No.2 along with her children had come to her maternal house in Delhi for vacation. The petitioner No.3 filed a false police complaint bearing No.1046P[1] dated 06.03.2020, against the applicant/respondent No.2 and her parents at Crime Against Women Cell as petitioner No.2 is a Sub-Inspector posted at Sonipat, Haryana. The complaint was closed as all the allegations were found to be false. It is stated that on 11.03.2020, when the applicant/respondent No.2 went back home at Sonipat, she found that the petitioner No.3 had changed the locks and the applicant/respondent No.2 had to return back to Delhi as she was not permitted to enter her residence. It is stated that on 16.03.2020, in the bail proceedings, the applicant/respondent No.2 was informed by the learned Chief Judicial Magistrate, Sonipat that in CRM-M-54815/2019, which is pending before the High Court of Punjab & Haryana, the High Court had directed the Trial Court to state whether the petitioner had filed a compromise deed for quashing of FIR No.0671/2019 dated 19.11.2019, under Sections 323/506 IPC registered at Police Station Sonipat City and whether the applicant/respondent No.2 has voluntarily signed on the quashing as well as compromise Deed. The applicant found that the petitioner had without the consent of the applicant filed an application for quashing of FIR No.0671/2019 dated 19.11.2019, under Sections 323/ 506 IPC registered at Police Station Sonipat City before High Court of Punjab and Haryana. The applicant/respondent No.2 informed the Chief Judicial Magistrate, Sonipat that the petitioner had forcefully made her to write certain lines on a paper, and made her sign on 4-5 blank papers, which is now being misused before the High Court of Punjab & Haryana. It is stated that the applicant/respondent No.2 came to know that one Ms. Surabhi Kaushik, Advocate had appeared and accepted notices on behalf of the applicant/respondent No.2 in the High Court of Punjab & Haryana. It is stated that the applicant/respondent No.2 has never authorized anyone to appear on behalf of her before the High Court of Punjab & Haryana. She was not even aware of the quashing petition filed by the petitioner No.1. It is stated that the petitioner and his father are constantly threatening the applicant. It is stated that on 02.06.2020, at around 06.30 P:M. six police officials from Women Cell, Sonipat City came to the applicant/respondent No.2's house and forcefully took the applicant/respondent No.2 into custody and gave the custody of two minor children, who are aged 6.[5] years and 5 years respectively, to the petitioner No.1. It is stated that at around 10:00 PM, the applicant/respondent No. 2 was asked to leave the Women Cell on her own. It is stated that when the applicant/respondent No.2 refused to leave, the police officials arrested her and an FIR being FIR No.310/2020 was lodged against her at Police Station Sonipat City. On 03.06.2020, the applicant/respondent No.2 was enlarged on bail and all her jewellery and cash has been taken over by the petitioner. The applicant/respondent No.2's father emailed a complaint to the Hon'ble the Chief Justice of High Court of Punjab & Haryana on which a suo motu cognizance has been taken by the High Court of Punjab & Haryana and a writ of Habeas Corpus was registered vide CRWP-3813/2020.
7. In these circumstances, the applicant has filed the present applications on the ground that the order dated 28.01.2015 was obtained on false statements.
8. Mr. Vipul Goel, learned counsel for the applicant states that the applicant/respondent No.2 has been taken for ride. He would state that since the FIRs were quashed, the respondent No.2 has been beaten, humiliated and thrown out of her house. He would state that the petitioners have committed a fraud on the respondent No.2 and this Court by stating that all the disputes have been resolved. It is argued that the sole purpose of compromise was to get the FIRs quashed. The short question which arises for consideration is whether the application is maintainable in view of the bar under Section 362 Cr.P.C. Section 362 Cr.P.C reads as under:
9. Learned counsel for the applicant places reliance on Sanjeev Kapoor v. Chandana Kapoor, (2020) 13 SCC 172, wherein the Supreme Court while dealing with cases arising out of complaints made under Section 125 Cr.P.C observed as under:
10. Learned counsel for the applicant also places reliance on a decision of single Judge of Madras High Court in CRL.O.P. No.6231/2018, CRL.O.P. No.6232/2018 & CRL.O.P. No.6322/2018 titled as G. Sakthi Saravanan v.
Section 362 Cr.P.C observed as under:
11. Learned counsel for the applicant also places reliance on the judgment of Kerala High Court in Sudheer Kumar @ Sudheer v. Manakkandi M.K. Kunhiraman & Anr., 2007 SCC OnLine Ker 147.
12. The learned counsel for the applicant also relies on the judgment of Supreme Court in S. Ramesh & Ors. v. State Rep. by Inspector of Police & Ors., CRIMINAL APPEAL No.585/2019, wherein the Supreme Court upheld the order of the High Court exercising its power under Section 482 Cr.P.C in reopening the final judgments.
13. The present application has been filed on the basis of events which have transpired subsequent to the orders dated 28.01.2015. The judgment of the Supreme Court in Sanjeev Kapoor v. Chandana Kapoor (supra) does not apply to the facts of this case. That case arose in matrimonial proceedings arising under Section 125 Cr.P.C. An order under Section 125 Cr.P.C is not hit by Section 362 Cr.P.C for the reason that an order under Section 125 Cr.P.C fixing maintenance can be varied. The Supreme Court entertained the application on the ground that an order under Section 125 Cr.P.C is not a final order and that the Court after passing of the judgment or the final order in a proceeding under Section 125 Cr.P.C does not become functus officio. There is no discussion on Section 362 CrPC in S. Ramesh & Ors. v. State(supra) and cannot be relied on by the applicant.
14. A reading of Section 362 CrPC shows that it bars a Court from altering a judgment or final order except to correct a clerical or arithmetical error. Section 362 Cr.P.C itself provides the circumstances where petitions for review of orders which have attained finality can be entertained. Section 362 Cr.P.C begins with the words “Save as otherwise provided by this Code or by any other law for the time being in force”. The above expression shows that the rigor contained in Section 362 Cr.P.C can be relaxed only i. when it is provided by the Code itself; or ii. permitted by any other law for the time in force or iii. There is a clerical or arithmetical error
15. While dealing with the practice of entertaining miscellaneous petitions in criminal cases after disposal of main petition by the High Court while exercising jurisdiction under Section 226/227 or Section 482 Cr.P.C the Supreme Court in Nazma v. Javed, (2013) 1 SCC 376, observed as under:
16. In Sooraj Devi v. Pyare Lal, (1981) 1 SCC 500, the Supreme Court observed as under:
17. The Supreme Court in Simrikhia v. Dolley Mukherjee, (1990) 2 SCC 437, has observed as under:
18. The purpose of Section 362 Cr.P.C is that once a Court delivers the judgment that Court becomes functus officio and thereafter it cannot reconsider or modify the judgment (refer Sunil Kumar v. State of Haryana,
19. By an order dated 28.01.2015, this Court had quashed the FIRs on the basis of a compromise. This Court had noted in the order that if the marriage of respondent No.2 with petitioner/husband again runs into rough weather, then the respondent No.2 herein can take appropriate recourse against him. A perusal of the facts narrated above would show that the applicant has taken appropriate steps and there are proceedings between the parties. The contention of the applicant that the compromise was only a ruse to get the proceedings quashed cannot be examined by this Court at this juncture. The instant proceedings arises out of matrimonial disputes. It is the word of the applicant against the word of the petitioner. No doubt the bar under Section 362 Cr.P.C cannot be used by a party if it has played fraud on the Court by producing false documents or when it has suppressed material facts which if had been disclosed, the Court would never have used its power under Section 482 Cr.P.C to quash the proceedings on the basis of a compromise. The present case does not fall in any of the exceptions given in Section 362 Cr.P.C. The fact that the applicant is alleging that she has been subjected to cruelty post compromise has to be proved in the proceedings initiated by her.
20. The judgment of the Madras High Court in G.Sakthi Saravanan (supra) will also not apply to the facts of this case because the High Court in that case found that there was suppression of facts because of which the High Court was misled in quashing the criminal proceedings. In the present case, the allegations are that pursuant to the order dated 28.01.2015 the applicant has been treated with cruelty. The judgment of the Kerala High Court in Sudheer Kumar (supra) would also not apply to the present case. In that case the question which arose was whether an offence under Section 138 of the Negotiable Instruments Act can be compounded after the confirmation of the conviction passed by the Magistrate Court, by the appellate court and High Court in revision? Whether an order passed by the High Court in the criminal revision petition confirming the conviction can be nullified by the High Court in a petition filed under Section 482 of Cr.P.C. noticing subsequent compromise of the case by the contesting parties?
21. A perusal of the application would show that it is yet to be established as to whether cruelty has been committed by the petitioners against the respondent No.2. It cannot be said that the petitioner has misled the Court or suppressed facts when both the parties came before the High Court and pleaded that they have settled all their disputes and the proceedings against the petitioner be quashed. As stated above the present proceedings are pending between both the sides. This application cannot be used to shortcircuit other proceedings which are subsisting between the parties. In view of the bar under Section 362 Cr.P.C the applications are not maintainable and are accordingly dismissed.
SUBRAMONIUM PRASAD, J. APRIL 05, 2021 Rahul