498a quash

SAINATH DEVALLA (LEGAL CONSULTANT) 25 May 2016

GO THROUGH THE FOLLOWING CASE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

1 CRIMINAL APPEAL No. 447 OF 2013

(Arising out of S.L.P. (Crl.) No. 6462 of 2012)

Jitendra Raghuvanshi & Ors. .... Appellant(s)

Versus

Babita Raghuvanshi & Anr. .... Respondent(s)

J U D G M E N T

P.Sathasivam,J.

1) Leave granted.

2) The important question that falls for determination in the instant appeal is about the ambit and scope of the inherent powers of the High Courts under Section 482 of the Code of Criminal Procedure, 1973 (in short “the Code”) in quashing of the criminal proceedings in non-compoundable offences relating to matrimonial disputes.

3) This appeal is directed against the final judgment and order dated 04.07.2012 passed by the High Court of Madhya Pradesh, Bench at Indore in M.CR.C. No. 2877 of 2012, whereby the High Court dismissed the petition filed by the appellants herein under Section 482 of the Code for quashing of proceedings in Criminal Case No. 4166 of 2011 pending in the Court of Judicial Magistrate Class I, Indore.

4) Brief facts:

a) The marriage of Jitendra Raghuvanshi (Appellant No. 1 herein) and Babita Raghuvanshi, respondent-wife, was solemnized on 22.02.2002 as per Hindu rites and rituals. After the marriage, the parties were residing together as husband and wife at District Baitul, M.P. On 05.03.2003, an FIR being No. 172 of 2003 was registered at P.S. Sarni, Dist. Baitul for the offences punishable under Sections 498A, 406 read with Section 34 of the Indian Penal Code, 1860 (in short ‘the IPC’) at the instance of Babita Raghuvanshi – respondent-wife owing to the harassment and torture meted out to her in the matrimonial home by her husband and his relatives. A Criminal Case being No. 4166 of 2011 was also registered against the appellants herein for the offences punishable under Sections 498A and 406 of the IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961. b) During the pendency of the criminal proceedings, in the year 2012, with the help and intervention of family members, friends and well-wishers, the parties amicably settled their differences by way of mutual settlement. Pursuant to the same, on 03.04.2012, a compromise/settlement application was filed for dropping of the criminal proceedings in Criminal Case No. 4166 of 2011 and FIR No. 172 of 2003 dated 05.03.2003 before the trial Court. Respondent-wife also filed an affidavit stating that she did not wish to pursue the criminal proceedings against the appellants. However, by order dated 03.04.2012, learned trial Judge rejected the said application.

c) Being aggrieved by the order dated 03.04.2012, on 09.04.2012, the appellants herein filed an application being M.CR.C. No. 2877 of 2012 before the High Court invoking its inherent powers under Section 482 of the Code to quash the criminal proceedings launched against them. The High Court, by impugned order dated 04.07.2012, dismissed the application filed by the appellants herein stating that the court has no power to quash the criminal proceedings in respect of offences under Sections 498A and 406 of IPC since both are non-compoundable.

d) Aggrieved by the said order, the appellants have filed the present appeal by way of special leave.

5) Heard Ms. Preetika Dwivedi, learned counsel for the appellants and Mr. S.K. Dubey, learned senior counsel for Respondent No. 2 and Mr. Rahul, learned counsel for Respondent No.1.

6) The scope and ambit of power under Section 482 of the Code has been examined by this Court in a catena of earlier decisions. In the present case, we are concerned about interference by the High Court exercising jurisdiction under Section 482 in relation to matrimonial disputes. 7) It is not in dispute that matrimonial disputes have been on considerable increase in recent times resulting in filing of complaints under Sections 498A and 406 of IPC not only against the husband but also against the relatives of the husband. The question is when such matters are resolved either by the wife agreeing to rejoin the matrimonial home or by mutual settlement of other pending disputes for which both the sides approached the High Court and jointly prayed for quashing of the criminal proceedings or the FIR or complaint by the wife under Sections 498A and 406 of IPC, whether the prayer can be declined on the sole ground that since the offences are non-compoundable under Section 320 of the Code, it would be impermissible for the Court to quash the criminal proceedings or FIR or complaint.

8) It is not in dispute that in the case on hand subsequent to the filing of the criminal complaint under Sections 498A and 406 of IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961, with the help and intervention of family members, friends and well-wishers, the parties concerned have amicably settled their differences and executed a compromise/settlement. Pursuant thereto, the appellants filed the said compromise before the trial Court with a request to place the same on record and to drop the criminal proceedings against the appellants herein. It is also not in dispute that in addition to the mutual settlement arrived at by the parties, respondent-wife has also filed an affidavit stating that she did not wish to pursue the criminal proceedings against the appellants and fully supported the contents of the settlement deed. It is the grievance of the appellants that not only the trial Court rejected such prayer of the parties but also the High Court failed to exercise its jurisdiction under Section 482 of the Code only on the ground that the criminal proceedings relate to the offences punishable under Sections 498A and 406 of IPC which are non-compoundable in nature. 9) Learned counsel for the parties, by drawing our attention to the decision of this Court inB.S. Joshi and Others vs. State of Haryana and Another, (2003) 4 SCC 675, submitted that in an identical circumstance, this Court held that the High Court in exercise of its inherent powers under Section 482 can quash criminal proceedings in matrimonial disputes where the dispute is entirely private and the parties are willing to settle their disputes amicably. It is not in dispute that the facts in B.S. Joshi (supra) are identical and the nature of the offence and the question of law involved are almost similar to the one in hand. After considering the law laid down in State of Haryana vs. Bhajan Lal, 1992 Supp (1) SCC 335 and explaining the decisions rendered in Madhu Limaye vs. State of Maharashtra, (1977) 4 SCC 551, Surendra Nath Mohanty & Anr. vs. State of Orissa, (1999) 5 SCC 238 and Pepsi Foods Ltd. & Anr. vs. Special Judicial Magistrate & Ors., (1998) 5 SCC 749, this Court held:

“8. … …. We are, therefore, of the view that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, Section 320 would not be a bar to the exercise of power of quashing. It is, however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power.”

Considering matrimonial matters, this Court also held:

“12. The special features in such matrimonial matters are evident. It becomes the duty of the court to encourage genuine settlements of matrimonial disputes.”

10) As stated earlier, it is not in dispute that after filing of a complaint in respect of the offences punishable under Sections 498A and 406 of IPC, the parties, in the instant case, arrived at a mutual settlement and the complainant also has sworn an affidavit supporting the stand of the appellants. That was the position before the trial Court as well as before the High Court in a petition filed under Section 482 of the Code. A perusal of the impugned order of the High Court shows that because the mutual settlement arrived at between the parties relate to non-compoundable offence, the court proceeded on a wrong premise that it cannot be compounded and dismissed the petition filed under Section 482. A perusal of the petition before the High Court shows that the application filed by the appellants was not for compounding of non-compoundable offences but for the purpose of quashing the criminal proceedings.

11) The inherent powers of the High Court under Section 482 of the Code are wide and unfettered. In B.S. Joshi (supra), this Court has upheld the powers of the High Court under Section 482 to quash criminal proceedings where dispute is of a private nature and a compromise is entered into between the parties who are willing to settle their differences amicably. We are satisfied that the said decision is directly applicable to the case on hand and the High Court ought to have quashed the criminal proceedings by accepting the settlement arrived at.

12) In our view, it is the duty of the courts to encourage genuine settlements of matrimonial disputes, particularly, when the same are on considerable increase. Even if the offences are non-compoundable, if they relate to matrimonial disputes and the court is satisfied that the parties have settled the same amicably and without any pressure, we hold that for the purpose of securing ends of justice, Section 320 of the Code would not be a bar to the exercise of power of quashing of FIR, complaint or the subsequent criminal proceedings.

13) There has been an outburst of matrimonial disputes in recent times. The institution of marriage occupies an important place and it has an important role to play in the society. Therefore, every effort should be made in the interest of the individuals in order to enable them to settle down in life and live peacefully. If the parties ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law, in order to do complete justice in the matrimonial matters, the courts should be less hesitant in exercising its 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 the process of the court or that the ends of justice require that the proceedings ought to be quashed. We also make it clear that exercise of such power would depend upon the facts and circumstances of each case and it has to be exercised in appropriate cases in order to do real and substantial justice for the administration of which alone the courts exist. It is the duty of the courts to encourage genuine settlements of matrimonial disputes and Section 482 of the Code enables the High Court and Article 142 of the Constitution enables this Court to pass such orders.

14) In the light of the above discussion, we hold that the High Court in exercise of its inherent powers can quash the criminal proceedings or FIR or complaint in appropriate cases in order to meet the ends of justice and Section 320 of the Code does not limit or affect the powers of the High Court under Section 482 of the Code. Under these circumstances, we set aside the impugned judgment of the High Court dated 04.07.2012 passed in M.CR.C. No. 2877 of 2012 and quash the proceedings in Criminal Case No. 4166 of 2011 pending on the file of Judicial Magistrate Class-I, Indore. 15) The appeal is allowed.

………….…………………………J.

(P. SATHASIVAM)

………….…………………………J.

(JAGDISH SINGH KHEHAR)

………….…………………………J.

(KURIAN JOSEPH)

NEW DELHI;

MARCH 15, 2013.

SAINATH DEVALLA (LEGAL CONSULTANT) 25 May 2016

But once the accused have been declared as "PO's" in a criminal case the Judge of HC is right in insisting the accused to present for quash even though a mutual compromise has been reached by both the parties in settling the matter outside the jurisdiction of the court.

What is the opinion of UR lawyer in HC?

(Guest)

dear sir

I understand that the 498a quash can be done since the matter is settled and mutual divorce is completed and girl is paid the whole amount.

since I was done PO which i did not aware of is now hurting me.

How can I avoid my presence in court to quash the matter.

SAINATH DEVALLA (LEGAL CONSULTANT) 25 May 2016

I want to know the course of action of UR lawyer.

(Guest)

my lawyer says that court can't be strict since the matter is settled and is saying that she will argue on my presence.

If I am called do I still need bail and will I get flying back permission before coming to india.

(Guest)

my lawyer says on next date of hearing she will argue for my presence exemption.

I am clueless how she is going to do.

SAINATH DEVALLA (LEGAL CONSULTANT) 25 May 2016

Wait till the next hearing and rely on the wisdom of UR lawyer.

(Guest)

Let your lawyer present arguments and let us see how judge responds. Insisting on your presence is causing you undue hardship because of foreign travel, loss of income and possibility of arrest. No useful purpose is served by any of this once matter is resolved with wife. Judge's insistence is not serving any cause of justice.

(Guest)

CrPC Sec 82 (4) lists offences under which Magistrate can declare someone PO after issuing proclamation. 498A and 406 are not in this list of offences which are considered heinous. Are you sure that FIR did not contain other offenses? If your FIR only had 498a/406/34 your lawyer can argue that PO declaration by Magistrate was not as per law.

(Guest)

Crl. Misc. No. M-36808 of 2012 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-36808 of 2012 (O&M) Date of decision: 03.12.2013 Harjot Singh Bal and others ...Petitioners Versus State of Punjab and others ...Respondents CORAM : HON'BLE MS JUSTICE RITU BAHRI Present: Mr. Vikram K. Chaudhri, Advocate, for the petitioners. Mr. Daljit Singh Virk, AAG, Punjab. Mr. H.S. Gill, Senior Advocate, with Mr. Vivek Goel, Advocate, for respondent No.2. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? RITU BAHRI, J. This petition under Section 482 Cr.P.C., is for quashing of FIR No.215 dated 20.10.2012, under Sections 420, 498-A, 406, 120-B IPC, registered at Police Station Sadar Amritsar, District Amritsar (Annexure P-5). Harjot Singh Bal-petitioner No.1 was married to Rajdeep Kaur Bal- respondent No.3, on 15.02.2007 at Phoenix, Arizona and the certificate of Prasher Ajay 2013.12.06 10:38 I attest to the accuracy and integrity of this document High Court Chandigarh their marriage is annexed as Annexure P-1. After the marriage, they resided in a rental accommodation in Washington, United States of America. Thereafter, some traditional ceremonies were performed in India in the month of October, 2007, for the relatives, who could not make it for the wedding in United States of America. On 31.03.2012, the couple was blessed with a son. Thereafter, on 05.05.2012, respondent No.3 went to her parental house in California, along with the child. However, she did not return back. On persistent requests made by petitioner No.1, she came back on 16.06.2012. At that time, she was accompanied by her father-Rajpal Grewal and uncle- Amritpal Grewal (her father's elder brother). A meeting was held in the presence of family members of Rajdeep Kaur-respondent No.3 and parents of petitioner No.1, wherein petitioner No.1 had expressed that he could not move to Modesto, California, so as to enable his wife to be close to her parents, because he had a stable job in Washington and had been living there since 2006. On 18.06.2012, his wife-respondent No.3 along with her father- Rajpal Grewal and uncle-Amritpal Grewal decided to leave the house and take the young child along with them to California. When he stopped them from doing so, a report was made to the police under the domestic violence. Pursuant to that, petitioner No.1 was arrested and respondent No.3 along with family left with the child. She also withdrew the entire money from the shared bank accounts, however, subsequently, re-deposited the same on the advice of her attorney. Thereafter, she took away all the jewellery from the safe deposit account. A petition for dissolution of marriage was filed in the Superior Court of Washington country of Snohomish on 09.10.2012 (Annexure P-4). The petitioner No.1 was paying maintenance during the Prasher Ajay 2013.12.06 10:38 I attest to the accuracy and integrity of this document High Court Chandigarh pendency of divorce petition. In the backdrop of the divorce petition filed by the petitioner No.1, the criminal proceedings were initiated by the grandfather of respondent No.3 against the petitioners. The present FIR was got registered by Davinder Singh, grandfather of respondent No.3, with the following allegations:- Shagun Ceremony: In the FIR, it is stated that on 25.10.2007, the 'shagun' ceremony was held and gold items were given as under:- (i)Gold bangle weighing about 2.5 tolas and Rs. 11,000/- cash to Harjot singh Bal-petitioner No.1. (ii)Gold chain of 2 tolas and Rs.2100/- cash to Tajinder Kaur. (iii)Gold ring weighing 1 tola and Rs.2100/- in cash to Harbhajan Singh Bal. (iv)One gold ring weighing about half tola and Rs.1100/- cash to Manjot Kaur. Milni Cerenomy At the time of 'Milni Ceremony' Tejinder Kaur was given 1 necklace set weighing 3 tolas, Harbhajan Singh Bal was given a gold bracelet weighing 2.5 tolas, Manjeet Kaur was given a gold necklace weighing 2 tolas. Apart from this, relatives of Harjot Singh Bal, including his grandmother,uncles and aunts and other close relatives were given 12 gold rings. Vidai At the time of 'vadai', Harjot Singh Bal received a gold bracelet weighing 2.5 tolas and a gold ring weighing 1 tola, Harbhajan Singh Bal was given Rs.51,000/- in cash. Rs.1.5 lacs were given for urniture, kitchen and Prasher Ajay 2013.12.06 10:38 I attest to the accuracy and integrity of this document High Court Chandigarh household items. Apart from this, various gift items were also given to the accused- petitioners for the use of respondent No.3. In all, Rs.15 to 20 lacs were spent in the wedding. There are specific allegations in the FIR that amount of Rs.2 lacs was given to in-laws of respondent No.3 for her use, after 2/3 years of wedding. But the said money was never deposited in the account of Rajdeep Kaur-respondent No.3. Apart from the above stated allegations of giving gifts and money, there are allegations that when she became pregnant, she was mentally harassed and troubled, so that she should have a miscarriage. After the birth of her son, she was maltreated and was not allowed to speak to her parents on phone. The complainant made efforts to convince Harbhajan Singh Bal-petitioner No.3 to sortout the problems at home, but despite that he started making false allegations on respondent No.3 and refused to keep his grandson with him. Thereafter, Rajdeep Kaur-respondent No.3 left her matrimonial house along with the minor child in July, 2011. On notice, reply on behalf of respondent No.1-State, in the shape of affidavit of Assistant Commissioner of Police (North), Amritsar, has been filed, stating therein that further investigation of the case is being conducted by ASI Gurinder Singh and real facts will come to light on completion of the same. Learned counsel for respondent No.2 has vehemently argued that petitioner No.1 had solemnized marriage with respondent No.3 with the sole purpose of obtaining citizenship of United States of America (USA). The Court marriage was performed on 15.02.2007 in USA and thereafter, the marriage was solemnized in India in October, 2007. Petitioner No.1 got Prasher Ajay 2013.12.06 10:38 I attest to the accuracy and integrity of this document High Court Chandigarh citizenship of USA and shortly filed a petition for divorce. Respondent No.3 faced the cruelty and maltreatment at the hands of her in-laws (petitioners). He has further urged that the petitioners are residing in USA and proclamation proceedings under Section 82 Cr.P.C., have been issued against them. Even though, the Court in USA has granted divorce to the parties, yet since the marriage was solemnized in India in the year 2007, the criminal proceedings could very well be initiated against the petitioners in India. After the birth of the child, petitioner No.1 did not handover the child to the mother. It was only on a complaint made by Rajdeep Kaur-respondent No.3 and on intervention of the police, the custody of the child was given to the mother-respondent No.3. At that stage, the proceedings against petitioner No.1 were dropped on the statement made by Rajdeep Kaur. The complainant (herein) is the grandfather of Rajdeep Kaur and the criminal proceedings have been initiated as a fraud was committed by petitioner No.1 and his family members on his grand-daughter. It has been further argued that after registration of the FIR, proclamation against petitioner No.1 has been effected and he has been declared proclaimed offender under Section 82 (1) Cr.P.C., vide order dated 29.04.2013 (Annexure R-7). Once the petitioners have been declared proclaimed offenders, they cannot approach this Court and seek quashing of the FIR under Section 482 Cr.P.C. Learned counsel for the petitioners does not dispute that the petitioners have been declared proclaimed offenders. He placed on record a settlement agreement (Annexure P-21) executed between Harjot Singh Bal- petitioner No.1 and Rajdeep Bal-respondent No.3, in the Superior Court of Prasher Ajay 2013.12.06 10:38 I attest to the accuracy and integrity of this document High Court Chandigarh Washington. He has also placed on record the judgment dated 03.04.2013 (Annexure P-22), whereby a decree of divorce has been granted. Heard, counsel for the parties. After going through the judgment dated 03.04.2013 (Annexure P- 22) passed by the Superior Court of Washington, it is apparent that all the disputes between the parties have been resolved. The details of the property, awarded to Rajdeep Kaur Bal-respondent No.3 vide judgment (Annexure P- 22) are as under:- Property Awarded to respondent: The respondent should be awarded as her sole and separate property, free and clear of any liens, claims, interests, or encumbrances of the petitioner the following: A. All bank/investment accounts and insurance policies (including riders) currently in respondent's name, except as otherwise specifically awarded to petitioner. B. All employment-related benefits in respondent's name, including all rights and benefits which have been derived as a result of past or present employment, union affiliations, military service, or United States, state or other citizenship (except rights the parties are entitled to receive by virtue of this relationship); and further including but not limited to sick leave benefits, life/health/disability insurance, educational benefits and grants, health orwelfare plans and all other contractual, legislated or donated benefits, whether vested or unvested, and whether directly or indirectly derived through the activity of the parties, along with all rights and benefits to which he is entitled by state or federal law, including Social Security benefits, as well as any pension, retirement, profit sharing, 401-K, IRA or Keogh benefit in her name except as otherwise specifically awarded to petitioner herein. C. All property currently in respondent's possession; including, but not limited to, clothing, jewellery, personal effects, Prasher Ajay 2013.12.06 10:38 I attest to the accuracy and integrity of this document High Court Chandigarh furniture, furnishings, household adornments, and tools, except as otherwise specifically awarded to petitioner. D. The 2006 Honda Accord and any underlying obligation(s) thereon. E. Any property acquired since the date of the parties' separation with respondent's separate funds, and except as otherwise specifically awarded to petitioner." As per the aforesaid judgment, if the husband decided to sell home, the net proceeds would be divided equally (50/50) between the husband and wife. Rajdeep Kaur Bal-respondent No.3 has been given 10% separate property interest in thebusiness known as GRDA, including real estate, equipment, bank accounts, receivables and assets associated therewith. The custody of the child would be with the mother. At this stage, reference can be made to the deposition of Rajdeep Kaur-respondent No.3 before the Superior Court of Washington (Annexure P- 25), wherein she had denied that she had authorized her grandfather to act on her behalf or that she had given any power of attorney to institute a suit on her behalf. She specifically denied that any Lawyer has been appointed by her to institute a suit in India. Reference can also be made to Annexure P-24, which shows that on 08.12.2012, the Safe Deposit Box was opened by Rajdeep Kaur-respondent No.3, where all her gold items and jewellery items were found present and opening of the locker has been acknowledged by Harjot Bal. After going through the documents (Annexures P-22, P-24 and P- 25, it transpires that all the liabilities between Rajdeep Kaur Bal-respondent No.3 and her husband Harjot Singh Bal-petitioner No.1 have since been settled. As per the statement of Rajdeep Kaur Bal-respondent No.3 (Annexure Prasher Ajay 2013.12.06 10:38 I attest to the accuracy and integrity of this document High Court Chandigarh P-25), she has not authorized anybody to institute a suit on her behalf. Another fact, which is to be considered is that all the petitioners as well as Rajdeep Kaur Bal are residing in U.S.A. and as per the decree of divorce dated 03.04.2013 (Annexure P-22), all the claims have already been settled between the parties. Even the jewellary has been taken away by opening the locker as per Annexure P-24. At this stage, no cause of action survives to prolong the criminal proceedings, which have been initiated after registration of the present FIR. The essential ingredients for commission of offences under Sections 406 and 498-A IPC, after passing of decree of dovirce vide Annexure P-22, ceased to exist and continuation of criminal proceedings, after presentation of the challan dated 13.07.213, would be an abuse of the process of law, especially in view of the fact that Rajdeep Kaur Bal had not given any instructions to her grandfather to file any suit of complaint on her behalf. Resultantly, FIR No.215 dated 20.10.2012, under Sections 420, 498-A, 406, 120-B IPC, registered at Police Station Sadar Amritsar, District Amritsar, is quashed with all consequential proceedings arising therefrom qua the petitioners. Since the claims between the parties have already been settled, the order dated 29.04.2013 (Annexure R-7), declaring the petitioner No.1 as proclaimed offender, is also set aside. Disposed of accordingly. (RITU BAHRI) 03.12.2013 JUDGE ajp Prasher Ajay 2013.12.06 10:38 I attest to the accuracy and integrity of this document High Court Chandigarh

(Guest)

I found above judgement where NRI was PO and had 498a FIR In this judgement the lawyer said that the boy can't approach court since he is a PO and through his lawyer seeks quashing. His presence was not disputed. In my case judge is asking my presence. My lawyer says she can only ask for exemption and can't do much other than that. I sent her above judgement but she is saying she will try. I got no guarantee that I will get relief. Does courts have different laws for different parties ??? I'm confused because I'm not rich and can't afford senior lawyer in India. I already lost all saving in compromise.

(Guest)

Did you already pay settlement?
Usually settlement is paid only after quash is done.
Ideal situation would be to try and resolve this with other party and get their lawyer to also pres sjudge for quash.
If it is seems that issue is truning into a major bottleneck, appeal the MCD on grounds that settlement was breached.

(Guest)

Yes the girl is paid whole amount. The girl hired a lawyer who gave her signed affidavit in court regarding quash of FIR and PO Girl is supporting quash petition.

(Guest)

I don't know what to say. Judge refusing to quash is clearly abusing process of law by continuing a case that has no chance of reaching conclusion and asking for something that doesn't serve any purpose whatsoever.

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