Naim Ahmed & Ors. v. State & Anr.

1. The second respondent was married to first petitioner as per Muslim rites and ceremonies on 14.03.2012, the parties having lived together for sometime but no child having taken birth out of the wedlock. On 05.06.2014, the second respondent lodged first information report (FIR) no. 308/2014 with police station Jafrabad alleging offences punishable under Sections 498A/406/34 of Indian Penal Code, 1860 (IPC) and Section 4 of Dowry Prohibition Act, 1961 against her husband (the first petitioner), his brothers (second to fifth petitioners), his father (sixth petitioner), his mother (seventh petitioner) and wife of his elder brother (eighth petitioner). On conclusion of investigation, the police filed report under Section 173 2018:DHC:6221 of the Code of Criminal Procedure, 1973 (Cr.P.C.) on which cognizance was taken, the said matter being pending on the file of Metropolitan Magistrate.

2. The parties through the intervention of society, however, entered into Memorandum of Understanding (MoU) on 20.04.2015 whereby they agreed to amicably resolve the matter in terms of which they were to proceed to dissolve the marriage by divorce in accordance with muslim law, they also having agreed, inter alia, for the criminal case arising out of the afore-mentioned FIR to be sought to be quashed.

3. The petition, thus, has been moved before this court invoking Section 482 Cr. PC seeking quashing of the FIR No.308/2014 under Sections 406, 498A, 34 IPC of Police Station Jafrabad.

4. The second respondent on being served with notice has appeared with counsel. The parties were sent to the Joint Registrar for recording of their respective statements by order dated 04.09.2018. The Joint Registrar has held the necessary proceedings on 10.09.2018, recording the statements of the petitioners except the first petitioner who appeared through his attorney. The Joint Registrar also examined the second respondent, taking on record proof of her identity, it also having been confirmed by the statement of Sub-Inspector Devender Singh of police station Jafrabad.

5. The parties have confirmed that in terms of the MoU the marriage of first petitioner with the second respondent has already been dissolved by pronouncement of Talaq. The second respondent had received an amount of Rs. 3,50,000/- at the time of execution of MoU which she confirms at the hearing. During the hearing, the petitioners handed over to the second respondent a demand draft bearing no. 822496 dated 08.01.2018 issued by Punjab National Bank, Sherkot (Bijnor), UP in the sum of Rupees Four lakhs in her favour.

6. Pertinent to note here that offence under Section 498A IPC is not compoundable. The parties are constrained to move this court for quashing on the basis of amicable resolution arrived at by them in the facts and circumstances noted above.

7. The scope and ambit of the power conferred on this court by Section 482 of Cr.P.C. read with Articles 226 and 227 of the Constitution of India, in the particular context of prayer for quashing criminal proceedings, was examined by the Supreme Court in B.S. Joshi and Ors. Vs. State of Haryana and Anr., (2003) 4 SCC 675, against the backdrop of a catena of earlier decisions. Noting, with reference to the decision in State of Karnakata Vs. L Muniswamy, (1977) 2 SCC 699, that in exercise of this “inherent” and “wholesome power”, the touchstone is as to whether “the ends of justice so require”, and it was observed thus: “10.... that in a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice and that the ends of justice are higher than the ends of mere law though justice had got to be administered according to laws made by the legislature....that the compelling necessity for making these observations is that without a proper realization of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.” (emphasis supplied)

8. The Supreme Court in B.S. Joshi (supra) further noted as under:- “What would happen to the trial of the case where the wife does not support the imputations made in the FIR of the type in question. As earlier noticed, now she has filed an affidavit that the FIR was registered at her instance due to temperamental differences and implied imputations. There may be many reasons for not supporting the imputations. It may be either for the reason that she has resolved disputes with her husband and his other family members and as a result thereof she has again started living with her husband with whom she earlier had differences or she has willingly parted company and is living happily on her own or has married someone else on the earlier marriage having been dissolved by divorce on consent of parties or fails to support the prosecution on some other similar grounds. In such eventuality, there would almost be no chance of conviction. Would it then be proper to decline to exercise power of quashing on the ground that it would be permitting the parties to compound non-compoundable offences? The answer clearly has to be in the “negative”. It would, however, be a different matter if the High Court on facts declines the prayer for quashing for any valid reasons including lack of bona fides.”

9. Holding that “special features in...matrimonial matters are evident” and that it is “the duty of the court to encourage genuine settlements of matrimonial disputes”, referring to Madhavrao Jiwajirao Scindia Vs. Sambhajirao Chandrojiroo Angre, (1988) 1 SCC 692, it was further observed that: “11.... Where, in the opinion of the court, chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may, while taking into consideration the special facts of a case, also quash the proceedings.”

10. In Gian Singh Vs. State of Punjab and Anr. (2012) 10 SCC 303, the Supreme Court contrasted the request for quashing of criminal proceedings on the basis of settlement with the possibility of compounding of an offence and observed thus:-

11. The above views in the context of matrimonial disputes resulting in criminal proceedings have been consistently followed over the years, as may be further illustrated by the decision of a bench of three Hon’ble Judges of the Supreme Court in Jitendra Raghuvanshi and Ors. Vs. Babita Raghuvanshi and Anr., (2013) 4 SCC 58, the following observations summarising the philosophy succinctly:-

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...”