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eswar (software)     15 July 2011

498A non compoundable - procedure of quash

I came to know karnataka high court is no longer allowing quashing of 498A under 482 section, since it is non compoundable even after a agreement of settlement b/w husband and wife. I and my wife have agreed for setlement and payment of 50% at the time of withdrawal of case 50% at the time of divorce. So now what is the procedure for cancelling the criminal case ?


 



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 5 Replies

THANKACHAN V P (Advocate & Notary)     15 July 2011

 

 

 

2003 (2) KLT 1062 (SC)

Hon'ble Mr. Justice Y.K. Sabharwal & Hon'ble Mr.Justice H.K. Sema 

Joshi v. State of Haryana 

Crl. A. No. 383 of 2003

Decided on 13th March, 2003.

 

 

Criminal P.C. 1973, Ss. 482 and 320 - Exercise of inherent powers by High Court - Quashing of criminal proceedings or FIR or complaint - S. 320 does not limit or affect the powers of High Court.

 

The decision of Supreme Court in Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47, does not lay down any general proposition limiting power of quashing the criminal proceedings or FIR or complaint as vested in S. 482 of the code or extraordinary power under Art. 226 of the Constitution of India.  Therefore, if for the purpose of securing the ends of justice, quashing of FIR becomes necessary.  S. 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 

2010 (1) KLT  289

Hon'ble Mr. Justice M. Sasidharan Nambiar

Biju Eappen v. State of Kerala

Crl. M.C. No.3695 of 2009

Decided on 21st December, 2009

 

 

Penal Code 1860, S.498A - Criminal P.C. 1973, S.482 - Conviction and sentence u/S.498A can, and definetely, be set aside, by the High Court, where settlement is reached between rival parties - However no directions can be given to Sessions Court to permit the parties to compound an offence u/S.498A since the offence is non-compoundable.

 

Summary

 

Questions raised are:

 

(i) Whether a sentence and conviction u/S.498A, while pending in appeal before a Sessions Court, can be quashed u/S.482 Crl. P.C. in view of the settlement reached between parties ?

 

@page-KLT290#

 

(ii) Whether a direction can be given to a Sessions Judge to permit the parties to compound an offence u/S.498A?

 

While pending appeal, the petitioner, a convict u/S.498A, settled the issues with his wife, and in such circumstances the present petition u/S.482 is filed for setting aside the conviction and sentence. While allowing the petition the High Court observed that, since the offence u/S.498A is not a compoundable offence, no direction can be issued to the Sessions Court to permit the parties to compound the offence, but, the High Court can, and definitely, set aside conviction and quash proceedings in such circumstances.

 

Held: An offence under S.498A of Indian Penal Code is not a compoundable offence. In such circumstances, learned Sessions Judge cannot be directed to permit the parties to compound the offence in Crl.A. No.57/2009. It is not in the interest of justice to continue the prosecution. Therefore, though the Sessions Judge cannot set aside the conviction based on the settlement arrived at between the parties, this Court, exercising the extraordinary inherent power under S.482 of Code of Criminal Procedure, could, definitely, set aside the conviction and quash the proceedings, when due to the settlement of all the matrimonial disputes, conviction passed by the learned Magistrate under Annexure-Al, is necessarily to be interfered with, to secure justice, exercising the powers under S.482 of Code of Criminal Procedure. (para. 5)

 

2003 (2) KLT 1062 (SC) = (2003) 4 SCC 675 Followed

 

 

As Karnataka HC is in India they have to accept the ruling of the Sureme Court. Kindly file petition u/s 482 before the Karnataka along with settlement agreement .

Nu.Delhi.Law.Fora. (Advocate-on-Record Supreme Court of India)     16 July 2011

Dear Querist,

 

In view of already advised by Ld. member, you file appropriate petition u/s 482 crpc for quashing. if Karnataka hc does not agree for said relief, you may consider filing in supreme court an immediate relief by way of SLP with ad-interim direction for consideration of law and you may also seek in appropriate law-making in that regard.

 

trust this would suffice.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     19 July 2011

Still quash is not possible u/s 482, there are no of rulings in the matter.

If both parties are ready you can get it at trial court by simple methods , ask your advocate he will guide you.

eswar (software)     20 July 2011

Previously at the time of the quash of 498A in the high court - As per the agreement prepared I can pay the 50% amount in the form of DD and it will be recorded in the order sheet.

But With Karnataka Hight court dismissing 498A quash petitions recently (it was allowing such petitions till early 2011) - Other than going to supreme court what is the best procedure to close the criminal case and the payment of 50% of amount.

Now I am aware that there are ways like she turning hostile witness in the trail court  - but then how do I pay the 50% amount ? I do not want to pay any amount outside the court without being recorded.

Can I give the amount in  the trail court itself ? Would it not be considered that in this case that we have colluded or influenced the witness.

 

 

1 Like

Manoj (Engineer)     21 December 2011

@ Mr. Thankachan,

I am facing similar problem in high court of Punjab. The compromised has been effected in high court, statements recorded from both parties, duly signed and attested by the respective advocates. I paid her 1/3rd the agreed amount that day duly recorded by high court. It was sent for verification by the trial court, where again the statements to similar effect were recorded and attested and the magistrate even confirmed it through the court order validating the compromise. Even the respective P.S. DSP also has submitted his report affirming the same. Yet high court refuses to either quash or even give a stay order on trial proceedings citing some SC recent ruling in 2011 where-in they've referred such a scenario to a larger bench of SC.

Now the trial is on hold due to this process for 4 months but the trial magistrate is losing patience in the time lost & is keen to proceed with the trial unless I get either of the two. I searched a lot but could not locate such a ruling of SC of disallowing quash as well as stay even after compromise effected (before conviction).

Any guidance would be greatly helpful.

Thanks & best,
Manoj

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