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Bombay HC- Husbands condition to tender unconditional apology for filing criminal complaint and publish in the newspaper allowed by Court.

December 12, 2012 Leave a comment

1/7 fca.142-11.doc
nsc.

 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 142 OF 2011

 

Rushabh Parekh …Appellant

Vs.
Meghna Parekh Nee Vora …Respondent

WITH
CRIMINAL APPLICATION NO. 419 OF 2012
IN
CRIMINAL APPLICATION NO. 4324 OF 2009

Rushabh Sudhir Parekh and Ors. …Applicants
Vs.
The State of Maharashtra and Anr. …Respondents

WITH
CRIMINAL APPLICATION NO. 830 OF 2012

Meghna Parekh Nee Vora. …Applicant
Vs.
The State of Maharashtra and Anr. …Respondents

WITH
CRIMINAL APPLICATION NO. 2131 OF 2008

Meghna Rushabh Parekh …Applicant
Vs.
The State of Maharashtra and Anr. …Respondents

WITH
CRIMINAL APPLICATION NO. 5232 OF 20102/7 fca.142-11.doc

Meghna Rushabh Parekh and Anr. …Applicants
Vs.
The State of Maharashtra and Anr. …Respondents

WITH
CRIMINAL REVISION APPLICATION NO. 274 OF 2007
IN
CRIMINAL APPLICATION NO. 156 OF 2010

Meghna Parekh Nee Vora …Applicant
Vs.
The State of Maharashtra and Ors. …Respondents

WITH
CRIMINAL WRIT PETITION NO. 2491 OF 2008

Meghna Parekh Nee Vora …Petitioner
Vs.
The State of Maharashtra and Anr. …Respondents
********

Mr. Avinash Avhad i/b Mrs. Racheeta R. Dhuru for the Appellant in FCA no. 142 of 2011, for the Applicant in Cr.Appln. no. 419 of 2012, for Respondent nos. 2 to 4 in Cr. Revision Application no. 274 of 2007, for Respondent no. 2
in Cr. Writ Petition no. 2491 of 2008.
Mr. Shyam Mehta, Senior Advocate with Mr. A.H. Ponda, Senior Counsel i/b. Kalpesh Joshi for Respondent in FCA no.
142 of 2011, for Respondent no. 2 in Cr.Appln. no. 419 of 2012, for the Applicant in Cr.Appln. no. 830 of 2012.
Mr. A.H.H. Ponda for the Applicant in Cr.Appln. no. 2131 of  2008 and Cr. Appln. no. 5232 of 2010.
Mrs. Racheeta R. Dhuru for Respondent no. 2 in Cr. Appln. no. 2131 of 2008.3/7 fca.142-11.doc
Mr. S.V. Kotwal, for Respondent no. 2 in Cr. Appln. no. 5232 of 2010.
Smt. V.R. Bhosale, APP for State.
Rushabh Parekh, Appellant present in-person.
Meghna Parekh Nee Vora, Respondent present in person.
********

CORAM: V.M. KANADE &
P.D. KODE, JJ.
DATE : 4th September, 2012.
P.C.

1. Both the parties have filed consent terms which were taken on record by this court by order dated 30th August, 2012. In clause (2) and (3) of the consent terms, the respondent had agreed to publish an apology in Time of India newspaper and Mumbai Samachar newspaper on Page 3 and in terms of clause (4) only after the said condition was complied, it was agreed that both the parties will proceed further to act upon the present consent terms
2. We have perused the consent terms. We are satisfied that the amicable settlement of the disputes between the husband and wife and in laws of the either side are in the best interest of the husband and wife and their families also. Matrimonial disputes between the parties not only disrupted the family life of the husband and wife but had also resulted into several criminal cases being filed by either side.
Allegations and counter allegations were levelled against each other by both the parties. After a suggestion was made by this court, both the parties have now resolved the dispute and differences which have arisen between them and that resulted in filing of the consent terms. The respondent-wife has filed a petition for divorce in the Family Court, which was allowed and against the said Judgment and decree passed by the trial court an appeal was preferred by the husband in this court. Decree is passed in
terms of consent terms. Decree be drawn up accordingly.
The appellant-husband has now agreed to withdraw the appeal, so that the Judgment and decree passed by the Family Court could get confirmed by virtue of the withdrawal of the appeal. In our view, it is in the interest of both the parties to start their life afresh on a clean slate instead of fighting against each other in various civil and criminal proceedings.
3. The Apex Court in number of cases viz., B.S. Joshi & Others v/s. State of Haryana and Another (AIR 2003 SC 1386), Abasaheb Yadav Honmane v/s. State of Maharashtra, 2008 (1) Bom. C.R.(Cri.) 584, Mansur A. Khan v/s. State of Maharashtra, 2004(Supp.2) Bom.C.R. 693 : 2004 All. M.R. (Cri.) 1911 and Jitendra S. Bhadoria v/s. State of Maharashtra, 2009(1) Bom.C.R.(Cri.) 688:2008 All.M.R.(Cri.) 898 has held that the High Court while exercising its inherent jurisdiction under Section 482 of the Code of Criminal Procedure and under Article 226 of the Constitution of India is empowered to quash criminal proceedings, if the court comes to the conclusion that the said settlement of dispute between the parties is genuine and it is in the best interest of both the parties and secondly, the court is to be satisfied that the dispute between the parties is personal one. In our view the ratio of the said Judgments clearly apply to the facts of the present case.
4. The Respondent no. 2 has now complied the said condition nos. 2 and 3 by publishing an apology in Times of India newspaper and Mumbai Samachar newspaper. Learned Counsel for the Appellant-husband submits that since the said condition has been complied with, the criminal proceedings pending against the appellant and the respondents may be quashed and set aside.
5. Following complaints accordingly are quashed and set aside :-
a) Criminal case no. 431/PW/2006 is filed by the State of Maharashtra against the appellant and his parents-respondent no. 2 and 3, under the provisions of Section 498A and 406 r/w Section 34 of the Indian Penal Code tried by the Metropolitan Magistrate, 5th Court, Dadar who was pleased to acquit the appellant and respondent nos. 2 and 3. Against the said Judgment and Order passed by the trial court the State had preferred an appeal against acquittal in this court. However, in view of the amendment to section 378, this court had directed the State to file an appeal in the Sessions Court. In our view, since both the parties have amicably settled the dispute and since the consent terms have been filed, it will be appropriate if the complaint itself is quashed, so that the question of State filing a further appeal against the acquittal in the Sessions Court will not arise. Hence the Criminal Application filed by the
Appellant-husband being Criminal Application no. 419 of 2012 is allowed in terms of prayer clause (a) and is disposed of.
b) The private complaint filed by respondent no. 2 in CMM, 5th Court, Dadar against the respondent no. 1, under the provisions of Sections 465, 467, 468, 471, 420 r/w Section 120B of the Indian Penal Code which was registered as MECR no. 4 of 2007
is also quashed and set aside. The charge-sheet also therefore does not survive. Hence Criminal Application no. 830 of 2012 is allowed.
c) Similarly, respondent no.2 also had filed a criminal complaint no. 286/M/2007 for the offence punishable under Section 500 of the Indian Penal Code. In view of the amicable settlement between the parties, the said complaint is quashed and criminal application no. 2131 of 2008 is allowed.
d) Criminal complaint filed by the appellant under Section 500 of the Indian Penal Code and pending before the CMM, 5th Court, Dadar against the respondent no. 1 and her sister Sonali Gandhi is also quashed and set aside and criminal application no. 5232 of 2010 is allowed.
e) Criminal Revision Application no. 274 of 2007 filed by the wife against the appellant-husband is dismissed as withdrawn.
6. Both the parties have withdrawn all allegations which have been made in the petition and in the criminal complaints.
7. All the petitions/applications accordingly are disposed of in the aforesaid terms.

 

 
(P.D.KODE. J.) (V.M. KANADE J.)

 

http://bombayhighcourt.nic.in/data/civil/2012/FCA2623411040912.pdf

Delhi HC quashes FIR after man agrees to pay Rs 1,000 monthly to son

February 10, 2012 Leave a comment

 * IN THE HIGH COURT OF DELHI AT NEW DELHI*

+ CRL.M.C.457/2012

Judgment delivered on:07th February, 2012

FIRASAT & ORS ….. Petitioners                                                                                  Through : Mr.Javed Khan, Adv.                                                                                                   versus                                                                                                                                                STATE & ANR ….. Respondents                                                                                                   Through : Ms. Rajdipa Behura, APP for the State Mr. D.K. Singh, Adv.for R-2

CORAM: HON’BLE MR. JUSTICE SURESH KAIT SURESH KAIT,

J. (Oral)

Crl. M.A. 1585/2012 Exemption allowed subject to all just exceptions. CRL.M.C.457/2012

1. Notice.

2. Ld. APP accepts notice on behalf of the State.

3. Ld. Counsel for respondent No.2, Mr. D.K. Singh accepts notice on behalf of respondent No.2.

4. With the consent of the parties, the matter is taken up for final hearing.

5. Vide the instant petition, the petitioners have sought to quash FIR No. 103/2009 registered at PS Welcome, Delhi under Section 406/498-A/34 of the Indian Penal Code, 1860 read with Sections 3&4 of the Dowry Prohibition Act and the proceedings pending before the trial court.

6. Ld. Counsel for the petitioners has submitted that during the pendency of the case before the trial court, the respondent No.2 has amicably settled all the issues qua the aforesaid FIR with the petitioners vide MOU dated 25.01.2012.

7. Ld. Counsel for the petitioner, on instructions, submitts that it was agreed in the aforesaid MOU that the petitioner No.1 (husband) shall pay Rs.90,000/- towards full and final settlement. The petitioner No.1 has paid the said amount to the respondent No.2. However, the petitioner No.1 has come forward to pay Rs.1,000/- p.m. for bringing up of his son Mohd. Mouz, aged 4 years. It is further submitted that the respondent no.2 is no more interested to pursue the aforesaid FIR. Therefore, the FIR mentioned above and the proceedings before the trial court be quashed.

8. Respondent No.2 is personally present in the Court with her counsel Mr. D.K. Singh.

9. On instructions, ld. Counsel for the respondent No.2 has submitted that since the matter has been settled amicably vide the aforesaid MOU dated 25.01.2012 and the petitioner No.1 has further agreed to pay Rs.1,000/- p.m. in favour of his son, therefore, she is no more interested in pursing the instant case and has no objection if the above mentioned FIR and proceedings emanating therefrom are quashed.

10. Ld. APP on the other hand submits that the State has already filed the charge sheet and the charges are yet to be framed. She has prayed that if this court is inclined to quash the FIR, heavy costs should be imposed upon the petitioners, as the government machinery has been used and precious time of the Court has been consumed.

11. I find force in the submissions of ld. APP for the State. Therefore, I direct the petitioners No.1, 4 and 5 to pay Rs.5,000/- each to be paid within six weeks from today in favor of Mohd. Mouz, son of the petitioner No.1 and the respondent No.2.

12. I, therefore, direct respondent No.2 to keep the aforesaid amount of Rs.15,000/- in the form of FDR initially for five years, to be renewed periodically, and the maturity amount shall be utilized for the welfare of the child Md. Mouz.

13. Keeping in view the above discussion and the statement of respondent No.2, in the interest of justice, I quash FIR No. 103/2009 registered at PS Welcome, Delhi and all the proceedings emanating therefrom.

14. Criminal M.C. 457/2012 is allowed.

15. I further make it clear that if the petitioner No.1 fails to pay the aforesaid amount of Rs.1,000/- p.m. even for once, he shall be liable for contempt proceedings.

16. Dasti. SURESH KAIT,

J FEBRUARY 07, 2012

RS

Categories: 498A, Under Mutual Agreement Tags:

UTTARAKHAND HC-IPC 498A Quashed-Mutual Compromise-Complainant(Wife)living with Accused(husband) now

October 4, 2011 Leave a comment

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Compounding Application No.1209 of 2010 In

Criminal Misc. Application No.1021 of 2010 (U/s 482 of Cr.P.C.)

Nitin Gupta

Applicant

Versus

State of Uttarakhand and another

Respondents

Dated: October 26, 2010

HON. DHARAM VEER, J.

Heard Mr. Amish Tiwari, Advocate holding brief of Mr. A. Rab, Advocate for the applicant, Mr. M.A. Khan, Brief Holder for the State and Mr. G.K. Verma, Advocate for respondent no.2.

By means of this petition, moved under Section 482 of The Code of Criminal Procedure, 1973 (for short Cr.P.C.), the applicant has sought quashing of charge sheet submitted in Crime No.119/10 under Sections 323, 406 and 498-A of The Indian Penal Code, 1860 (for short, IPC) and 3/4 of Dowry Prohibition Act, 1961 (for short, the Act) and also prayed for quashing of proceedings of Case No.5224/2010, State v. Nitin Gupta, pending in the court of A.C.J.M., Ist, Dehradun.

Today both the parties are present in person before the Court. They have also filed a compounding application no.1209 of 2010 along with which a joint affidavit of the applicant Nitin Gupta and respondent no.2/complainant Priyanka Gupta has been annexed. In the application, it is stated that the applicant and respondent no.2 has entered into a compromise and they are living together peacefully as husband and wife and now no grudge is remained pertaining to the same dispute. Now, learned counsel appearing for both 2

the parties jointly submitted that the instant petition may be disposed of in terms of the compromise arrived at in between the parties and the impugned charge sheet and the proceedings pending before the court below may be quashed.

Reliance has been placed on the judgment delivered by the Hon’ble Apex Court in case of B.S. Joshi & others v. State of Haryana & Another reported in (2003) 4 SCC P675 and further in the case of Ruchi Agarwal v. Amit Kumar Agarwal & others reported in 2005 SCC (Cri.) 719.

Keeping in view the enunciation of law as referred to above and applying the same to the facts and circumstances of the present case, once the matter has been compromised between the parties, no useful purpose will be served by proceeding with the prosecution. Therefore, the compounding application is allowed and impugned charge sheet filed in Crime No.119/2010, under Sections 323, 406 and 498A IPC and 3/4 of the Act as well as the entire proceedings of Case No.5224/2010, State v. Nitin Gupta, pending in the court of Addl. C.J.M., Ist, Dehadun, are hereby quashed.

The petition u/s 482 Cr.P.C. is disposed of accordingly.

(Dharam Veer, J.)

26.10.2010

 

 

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Kerala HC-IPC 498a Quashed-Mutual Compromise

October 4, 2011 Leave a comment

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 4149 of 2010()

 

1. NOUSHAD

… Petitioner

Vs

1. ZULAIKABI C.H

… Respondent

For Petitioner :SRI.T.B.SHAJIMON For Respondent :SRI.SIJU MATHEW The Hon’ble MR. Justice V.RAMKUMAR Dated :11/10/2010

O R D E R

M.SASIDHARAN NAMBIAR, J.

————————-

Crl.M.C No.4149 of 2010

————————–

Dated this the 11th October, 2010 O R D E R

Petitioner is the accused and 1st respondent the de facto complainant in C.C No.426/2009 on the file of the Chief Judicial Magistrates Court, Kasaragod taken cognizance for the offences under Sections 341, 323 and 498 A of I.P.C on Annexure A1 final report. Petitioner and 1st respondent are husband and wife. Petition is filed under Section 482 of Cr.P.C contending that the entire matrimonial disputes were settled and consequent to the settlement, 1st respondent has no subsisting grievance against the petitioner and therefore the case is to be quashed.

2. First respondent appeared through counsel and filed a joint petition along with the petitioner stating that the entire matrimonial disputes were settled and consequent to the settlement, 1st respondent has compounded the offence and therefore the case pending before Chief Judicial Magistrate Court, Kasaragod is to be quashed.

3. Learned counsel appearing for the petitioner, 1st respondent and learned Public Prosecutor were heard.

4. The offences under Section 341 and 323 of Indian Penal Code are compoundable offences. First respondent the injured who was allegedly restrained by the petitioner is therefore competent to compound the offence though an offence under Section 498A is not compounded. As held by the Apex Court in B.S Joshi and others Vs. State of Haryana and another ( 2003 (4) SCC 675) when matrimonial disputes are settled amicably it is not in the interest of justice to stand on technicalities and continue the prosecution and jeopardise the settlement of matrimonial disputes. Hence the joint statement filed by the 1st respondent establishes that she has already compounded the compoundable offences and settled the matrimonial disputes also. In such circumstances, it is not in the interest of justice to continue the prosecution. Petition is allowed. C.C No.426 of 2009 on the file of Chief Judicial Magistrates Court, Kasaragod is quashed. M.SASIDHARAN NAMBIAR

JUDGE

ma

Kerala HC- IPC 498a Quashed-Mutual Compromise (ERNAKULAM)

October 4, 2011 Leave a comment

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 4034 of 2010()

 

1. SIVARAJAN, S/O.CHELLAPPAN NADAR … Petitioner

2. VIKRAMAN, S/O.CHELLAPPAN NADAR

3. ALBERT JOSE, S/O.DEVARAM

4. BABU, S/O JOHNSON

Vs

 

1. STATE OF KERALA, REPRESENTED BY ITS … Respondent

2. LENI MOL, D/O.SUBHASHINI

For Petitioner :SRI.G.SUDHEER

For Respondent :SRI.S.K.VINOD

The Hon’ble MR. Justice M.SASIDHARAN NAMBIAR Dated :04/10/2010

O R D E R

M.SASIDHARAN NAMBIAR,J.

——————————————————– CRL.M.C.NOs.4034 & 4035 OF 2010 ——————————————————- Dated 4th October, 2010 O R D E R

Petitioners in Crl.M.C.4034/2010 are accused 1 to 4 in C.C.384/2008 on the file of Judicial First Class Magistrate’s Court-II, Neyyattinkara. Petitioners in Crl.M.C.4035/2010 are the accused 1 to 3 in C.C.525/2008 before the same Court. Petitioners 1 and 2 in Crl.M.C.4034/2010 are the same petitioners in Crl.M.C.4035/2010. Third petitioner in Crl.M.C.4035/2010 is the wife of second petitioner therein. Crl.M.C.4035/2010 is filed to quash the cognizance taken in C.C.525/2008 on Annexure-A2 final report for the offences under Section 498 A read with Section 34 of Indian Penal Code.

Second respondent is the de facto complainant, who is the wife of first petitioner. Second respondent in Crl.M.C.4035/2010 is the same second respondent in Crl.M.C.4034/2010. As is clear from Annexure-A2 final report taken cognizance in C.C.525/2008, the case is that first petitioner husband and second petitioner the brother of first petitioner and third petitioner, the wife of second petitioner, treated second respondent with cruelty. Crime No.26/2008 of Pozhiyoor Police Station was registered under Annexure-A1 FIR based on the complaint filed by the second respondent before Judicial First Class Magistrate’s Court-II, Neyyattinkara and sent for investigation under Section 156(3) of Code of Criminal Procedure. Case of the petitioner in Crl.M.C.4035/2010 is that entire matrimonial disputes were settled amicably and consequent to the settlement second respondent has no grievance against the petitioners and therefore, it is not in the interest of justice to continue the prosecution.

2. Prosecution case in C.C.384/2008 as is clear from Annexure-A2 final report taken cognizance by the learned Magistrate for the offence under Sections 451, 354, 323 and 506(i) read with Section 34 of Indian Penal Code is that due to enmity with second respondent, who filed a complaint against petitioners 1 and 2 alleging that they along with the wife of second petitioner, committed offence under Section 498A of Indian Penal Code, the four petitioners in furtherance of their common intention trespassed into the residential house of the second respondent on 1/5/2008 at about 10 p.m and threatened second respondent that unless she withdraw the case, she will be murdered and will cause hurt to the second respondent and thereby committed the offences. Crl.M.C.4034/2010 is filed contending that entire disputes were settled amicably and consequent to the settlement second respondent has no grievance against the petitioners and therefore, pending prosecutions are to be quashed.

3. Second respondent appeared in both cases through a counsel and filed separate affidavits stating that entire matrimonial disputes were settled before the Family Court in O.P.1122/2008 and consequent to the settlement, she has no grievance against the petitioners and therefore, she has no objection for quashing the cases pending before the learned Magistrate.

4. Learned counsel appearing for the petitioners, second respondent and learned Public Prosecutor were heard.

5. Affidavit filed by the second respondent, the de facto complainant in C.C.525/2008 and 384/2008 establish that the offences alleged against the petitioners in C.C.525/2008 are matrimonial offences and offences alleged against the petitioners in C.C.384/2008 are purely personal in nature and all the disputes were settled amicably. As held by the Apex Court inB.S.Joshi and others v. State of Haryana and another (2003(4) SCC 675) when matrimonial disputes are settled amicably, it is not in the interest of justice to continue the prosecution and proceed with the cases and endanger the cordial relationship between the husband and wife and their relatives. Similarly, as held by the Apex Court in Madan Mohan Abbot v. State of Punjab (2008 (3) KLT 19 (SC) when the offences alleged against the petitioners in Crl.M.C.4034/2010 are purely personal in nature against second respondent and second respondent has settled the dispute with petitioners, it is not in the interest of justice to continue the prosecution as consequent to the settlement there is no likelihood of a successful prosecution. Petitions are allowed. C.C.384/2008 and 525/2008 on the file of Judicial First Class Magistrate’s Court-II, Neyyattinkara are quashed.

M.SASIDHARAN NAMBIAR,

JUDGE.

uj.

IPC 498a Quashed-Mutual Compromise-Complainant Filed petition for Quashing

October 4, 2011 Leave a comment

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 3760 of 2010()

 

1. HASEENA.K.V,AGED 22 YEARS,

… Petitioner

Vs

 

1. STATE OF KERALA-STATION HOUSE OFFICER, … Respondent

2. SIDDIQUE,AGED 30 YEARS,S/O.MAMMADKOYA,

3. BICHEEBI,AGED 50 YEARS,W/O.MAMMADKOYA,

4. SAFIYA,AGED 25 YEARS,D/O.MAMMADKOYA,

5. ANWAR,AGED 30 YEARS,S/O.SIDDIQUE,

6. HABEEB,AGED 25 YEARS,S/O.SIDDIQUE,

7. KOYAMON ALIAS KOYAKKA,AGED 50 YEARS, For Petitioner :SRI.MANJERI SUNDERRAJ For Respondent : No Appearance

The Hon’ble MR. Justice M.SASIDHARAN NAMBIAR Dated :13/09/2010

O R D E R

M.Sasidharan Nambiar, J.

————————–

Crl.M.C.No.3760 of 2010

————————–

ORDER

Petitioner, the defacto complainant in C.C.Nos. 477/2009 and 542/2009 on the file of Judicial First Class Magistrate’s Court-III, Kozhikode and C.C.No. 513/2007 on the file of Judicial First Class Magistrate’s Court-I, Kozhikode, filed this petition under Section 482 of Code of Criminal Procedure to quash the proceedings. C.C.No.477/2009 was taken cognizance on Annexure-2 final report for the offences under Sections 498A of Indian Penal Code. C.C.No.542/2009 was taken cognizance on Annexure-4 final report for the offences under Sections 342 and 323 read with Section 34 of Indian Penal Code. C.C.No.513/2007 was taken cognizance on Annexure-6 final report for the offences under Sections 341 and 323 of Indian Penal Code. This petition is filed by the defacto complainant in C.C.No.477/2009 stating that entire disputes with respondents 2 to 7, the accused in the cases, were settled amicably, evidenced by Annexures-7 to 9 joint petitions. It is submitted that consequent to the settlement, she has no subsisting grievance against the accused and therefore, all the cases are to be quashed.

2. Learned Public Prosecutor was heard.

3. C.C.No.477/2009 was taken cognizance for the offence under Section 498A of Indian Penal Code on the allegation that petitioner was treated with cruelty by her husband and in-laws. Affidavit filed by the petitioner/defacto complainant establishes that entire matrimonial disputes were settled amicably. As held by the Apex Court in B.S.Joshi v. State of Haryana((2003) 4 SCC 675), when the matrimonial disputes were settled, it is not in the interest of justice to continue the prosecution. C.C.Nos.513/2007 and 542/2009 were taken cognizance for the offences under Sections 341 and 323 read with Section 34 of Indian Penal Code. Petitioner is not the person to whom hurt was caused after wrongful restrainment. Hence, petitioner is not entitled to get those cases quashed. In any case, all the offences are compoundable under Section 320 of Code of Criminal Procedure. When the offences are compoundable, it is not for this Court to exercise the extraordinary jurisdiction to quash the proceedings. It is for the respective parties to approach the learned Magistrate for compounding the offences.

In such circumstances, petition is allowed in part. C.C.No.477/2009 on the file of Judicial First Class Magistrate’s Court-III, Kozhikode is quashed. 13th September, 2010 (M.Sasidharan Nambiar, Judge) tkv

Bombay HC allows Quashing IPC498A on application of complainant and accussed

October 4, 2011 Leave a comment

Bombay High Court

Jasmine Vipul Bhatia Alias …
vs
The State Of Maharashtra on 20 February, 2004
Equivalent citations: II (2004) DMC 162, 2004 (3) MhLj 262
Author: R Desai
Bench: R Desai

JUDGMENT

Ranjana Desai, J.

1. Petitioner 1 is the original complainant in case No. 285/P/96 (C.R. 322/95) pending before the Metropolitan Magistrates 31st Court, Vikhroli, Mumbai. She was married to petitioner 2 Vipul Narottam Bhatia on 23rd January, 1995. Petitioner 3 Purnima Narottam Bhatia is the sister of petitioner 2 and petitioner 4 Narottam Haridas Bhatia is the father of petitioner 2.

2. Due to difference of opinion petitioner : could not pull on with her husband. They started residing separately from 14th February, 1995. On 6th February, 1995 petitioner 1 had filed a complaint with Pant Nagar Police Station against rest of the petitioners inter alia under Section 498A read with Section 34 of the Indian Penal Code. It was registered as C.R. No. 322/95.

3. Admittedly on 26th November, 1996, the marriage between petitioner 1 and petitioner 2 was dissolved by consent decree of divorce. Thereafter petitioner 1 got re-married and she is now staying abroad.

4. In view of the amicable settlement of disputes, the petitioners have prayed that Criminal Case No. 285/5/96 pending in the Metropolitan Magistrate’s 31st Court, Vikhroli, Mumbai, be quashed. This is a rather unusual petition where the complainant and the accused have approached this court for quashing criminal cases filed at the instance of the complainant. The question is whether this court can quash the pending criminal proceedings which involve non-compoundable offence.

5. Mr. Mundargi, learned counsel appearing for the petitioners has placed heavy reliance on the decision of the Supreme Court in B.S. Joshi and Ors. v. State of Haryana and Anr., . He

contended that though offence under Section 498A of the Code is not a compoundable offence, this court can in its jurisdiction under Section 482 of the Criminal Procedure Code (“the Code” for short) quash the pending prosecution involving the said offence because under the changed scenario, if prosecution is allowed to continue it would result in abuse of process of Court.

6. I find substance in Mr. Mundargi’s contention. In State of Karnataka v. Muniswamy and Ors., the Karnataka High Court had quashed the proceedings initiated against the respondent therein under Section 324, 326, 307 read with 34 of the Indian Penal code on the ground that there was no sufficient ground for prosecuting them. The State challenged the High Court’s order in the Supreme Court. The Supreme Court came to a conclusion that the evidence collected by the prosecution was woefully inadequate for connecting the respondents with crime. There was no material on record on which the court could reasonably convict the accused and hence the High Court was justified in quashing the proceedings. The Supreme Court, therefore, held that the High Court was justified in coming to a conclusion that for meeting the ends of justice the proceedings against the accused ought to be quashed. This is how the Supreme Court described the High Court’s inherent powers.

“In exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceedings ought to be quashed. The saving of the High Court’s inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be poermitted to degenerate into a weapon of harassment or persecution. 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. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provisions 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.”

It is thus clear that one of the considerations which weighed with the Supreme Court was the fact that there was no possibility of a conviction, if the case had proceeded. The prosecution therein was a “lame prosecution”.

7. B.S. Joshi’s case (supra), in the facts before the Supreme Court, a wife had filed a case against her husband and members of his family under Section 498A, 323 and 406 of the Indian Penal Code. The parties thereafter settled the dispute. The marriage was dissolved. A petition then came to be filed in the High Court praying that the F.I.R. filed by the wife be quashed. The High Court refused to quash the F.I.R. on the ground that the offences were non-compoundable. The Supreme Court referred to its judgment in Muniswamy’s case (supra) and held that where the parties had amicably settled their matrimonial disputes to secure the ends of justice quashing of F.I.R. becomes necessary. The Supreme Court observed that in such a situation Section 320 of the Code would not be a bar to the exercise of power of quashing. It was observed that power under Section 482 of the Code has to be exercised with utmost care and caution. Its exercise would depend upon the facts and circumstances of each case. The sole purpose of exercise of this power is to prevent abuse of process of the court or otherwise to secure the ends of justices. The Supreme Court observed that in the facts of the case before it, the wife had filed an affidavit that the F.I.R. was registered due to temperamental differences. There may be many reasons for not supporting the imputations. In such reasons for not supporting the imputations. In such eventuality there would almost be no chance of conviction and, therefore, it would not be proper to decline to exercise power of quashing on the ground that it would be permitting the parties to compound non-compoundable offences. In this view of the matter the Supreme Court quashed the F.I.R.

8. The above judgments of the Supreme Court would be applicable to the present case also. It is true that offences which are not mentioned in Section 320 of the Code cannot be compound. Admittedly the offence under Section 498A of Indian Penal Code involved in the instant complaint cannot be compounded. But the petitioners are not seeking compounding of the said offence. The petitioners want the complaint to be quashed. The Courts of law should allow prosecution of the perpetrators of crime so that they are punished, if found guilty. But the courts cannot be persecutors. Depending on facts and circumstances of each case the court can always exercise its powers under Section 482 of the Code to quash a complaint, where the parties no longer bear any grudge against each other and want to bury their past. Particularly in matrimonial matters where there is an amicable settlement, allowing the prosecution to continue may be counter productive. When the chances of the prosecution ending in conviction are nil allowing such prosecution to continue would amount to abuse of process of court and quashing such proceedings would secure ends of justice. Quashing of such prosecutions would also lighten the burden of the courts, making it possible for tem to concentrate on other important cases. But this does not mean that powers under Section 482 of the code can be used in every case where parties come up with a case that there is a settlement. The gravity of the offence, the circumstances under which it was committed, the status of the victim and other attendent circumstances must be weighed by the court. This power has to be used with great care and circumspection and in exceptional cases. What may apply to matrimonial cases may not apply to other cases. Order quashing a proceeding would not create a precedent and each case will have to be dealt with having regard to its pecular facts and circumstances.

9. In the present case the parties have settled their disputes. The marriage is dissolved. Petitioner 1 has re-married and she is happily staying abroad. She does not want to prosecute her complaint. The prosecution can, therefore, be described as a lame prosecution. In such circumstances allowing the proceedings to continue would amount to abuse of process of the Court. It would not be in the interest of parties. Ends of justice would be secured, if the prosecution is quashed. Hence Criminal Case No. 285/P/96 pending before the Metropolitan Magistrate’s 31st Court, Vikhroli, Mumbai is quashed.

10. Petition is disposed of.

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