Allowed

Dhruba Ku.Sahu v. State of Orissa

Orissa HC5 Nov 2018CRLMC/1102/2018

Case brief

AI extract

What is this about?

High Court allowed quashing of criminal proceedings under Section 482 Cr.P.C. arising from matrimonial discord. Petitioners secured amicable settlement with the victim-wife earlier in the trial. The Court noted the remote prospect of conviction and held continuation would be an abuse of process.

What did the court decide?

The criminal proceeding in C.T. Case no.3734 of 2014 arising out of Bhubaneswar Mahila P.S. Case No.297 of 2014 stands quashed.

Dhruba Ku.Sahu Vs State of Orissa — Matrimonial and Divorce | Orissa HC (2018)

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CRLMC No.1102 of 2019

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07 09.01.2020 Heard learned counsel for the petitioners, the learned counsel for the opposite party no.2 and the learned counsel for the State.

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2. This application under Section 482 of Cr.P.C. has been filed by the petitioners to quash the criminal proceeding in C.T. Case no.3734 of 2014 arising out of Bhubaneswar Mahila P.S. Case No.297 of 2014, pending on the file of learned S.D.J.M., Bhubaneswar.

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3. It appears that the aforesaid case arises out of a matrimonial discord between the petitioner no.3 and opposite party no.2. The other petitioners are in-laws. An affidavit along with her identity proof has been filed by opposite party no.2-wife stating therein that she and the petitioner no.3 both have agreed to make a happy end of their matrimonial relationship and accordingly prior to this application for quashing, they had filed a Divorce Petition under Section 13(B) of the Hindu Marriage Act vide C.P. No.333 of 2018 before the learned Judge, Family Court, Bhubaneswar, for dissolution of their marriage and during the pendency

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of this CRLMC, the matter has been amicably settled between them and the said application under Section 13(B) of H.M.Act has been disposed of by the learned Judge, Family Court, Bhubaneswar in his judgment dated 24.04.2019. The opposite party no.2-wife further stated in the affidavit that in view of the aforesaid mutual settlement between them and judgment passed thereon, she does not want to proceed further against the petitioners in this case and if at all the criminal proceeding will be continued then it will be an abuse of process of law. The petitioner has also filed affidavit mentioning the aforesaid facts.

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4. Both the learned counsel appearing for the petitioners as well as the opposite party no.2 have jointly submitted that since both the petitioner no.3 and opposite party no.2 have already snapped their matrimonial relationship by way of settlement between them before the learned Judge, Family Court, Bhubaneswar, the aforesaid proceeding may be quashed as no useful purpose is going to be served to continue with the same inasmuch as hereinafter there is bleak chance of conviction.

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5. Learned counsel for the State did not oppose such submissions.

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6. No doubt, some of the offences are noncompoundable in nature. Non-compoundability of an offence does not stand on the way of the Court for quashment of the proceeding in appropriate cases in exercise of power under Section 482 of Cr.P.C. In this regard, the Apex Court in the case of Narinder Singh

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and others vrs. State of Punjab and another, reported in (2014) 6 SCC 466 taking note of almost all the earlier decision, such as, Gian Singh vrs. State of Punjab, (2012) 10 SCC 303, B.S. Joshi vrs. State of Haryana, (2003) 4 SCC 675, Rajendra Harakchand Bhandari vrs. State of Maharashtra, (2011) 13 SCC 311, Dimpey Gujral vrs. UT, Chandigarh, (2013) 11 SCC 497, Shiji vrs. Radhika, (2011) 10 SCC 705, State of Rajasthan vrs. Shambhu Kewat, (2014) 4 SCC 149, in paragraph-29 have held as follows :-

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In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:

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29.1. Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.

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29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:

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(i) ends of justice, or (ii) to prevent abuse of the process of any court.

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While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.

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29.3. Such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for the offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender. 29.4. On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.

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29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.

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29.6. Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore are to be generally treated as crime

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against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of its or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used, etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship. 29.7. While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings / investigation. It is because of the reason that at this stage the investigation is still on and even the charge-sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances / material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from

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exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be aground to accept the same resulting in acquittal of the offender who has already been convicted by the trial Court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime.”

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7. It appears that the aforesaid dispute arises out of matrimonial discord. The matter has been compromised between the parties. An affidavit has been filed by the opposite party no.2-wife indicating that her matrimonial relationship with petitioner no.3 has already snapped and she does not want to proceed with the matter against the petitioners. There is also no material indicating that the trial is in the concluding stage. No material is produced that the evidence of the opposite party no.2-wife has since been recorded. In such premises, when the parties have amicably settled the dispute and the opposite party no.2-wife has come forward indicating the fact of snapping their matrimonial relationship before the learned Judge,

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Family Court, Bhubaneswar in her affidavit and she does not want to proceed with the case hereinafter and there is a bleak chance of conviction in this case, so the continuance of the prosecution shall be an abuse of the process of the Court. Otherwise also, the parties having been snapped their matrimonial relationship before the Judge, Family Court, Bhubaneswar and the victim does not want to proceed with the case, for the ends of justice, quashment of the prosecution against the petitioners is also required to be made.

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8. I would, therefore, allow this Criminal Misc. Case application and the criminal proceeding in C.T. Case no.3734 of 2014 arising out of Bhubaneswar Mahila P.S. Case No.297 of 2014 on the file of learned S.D.J.M.,Bhubaneswar launched against the petitioners stands quashed. The trial court shall do well to comply with this order on production of the certified copy of this order by dropping the proceeding.

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Urgent certified copy of this order be granted on proper application.

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……………………. S.Pujahari, J.

LNB