Allowed

Ashish Mishra v. State of Orissa

Orissa HC20 Aug 2019CRLMC/945/2019

Case brief

AI extract

What is this about?

The High Court quashed criminal proceedings under Section 482 Cr.P.C. for offences arising from marital discord. Recognizing the mutual settlement and divorce between the parties, the court found the prosecution to be an abuse of process with bleak chances of conviction, ordering the trial court to comply.

What did the court decide?

The impugned orders taking cognizance are quashed and the prosecution against the petitioners in both cases is quashed.

Ashish Mishra Vs State of Orissa — Matrimonial and Divorce | Orissa HC (2019)

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CRLMC No.945 of 2019

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CRLMC No.945 of 2019 & 948 of 2019

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20.08.2019 Since both the applications arise out of the

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same cause of action, they are taken up together and disposed of by a common order.

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2. Heard, the learned counsel for the petitioners, the learned counsel for the Opposite Party No.2 and the learned counsel for the State in both the cases.

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3. Both the applications have been filed by the petitioners under Section 482 of Cr.P.C. to quash the criminal proceedings as well as the impugned orders taking cognizance dated 22.09.2012 & 14.07.2014 in connection with G.R. Case Nos.224 of 2011 & 203 of 2014 arising out of Rajgangpur P.S. Case Nos.104 of 2011 & 101 of 2014 respectively pending in the court of the learned J.M.F.C., Rajgangpur. In G.R. Case No.224 of 2011, the offences alleged are punishable under Sections 498(A), 313, 506 & 34 of the I.P.C. read with Section 4 of the D.P.Act and in G.R. Case No.203 of 2014, the offences alleged are punishable under Sections 419, 420, 192, 506 & 34 of the I.P.C.

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4. It appears that both the aforesaid cases arose out of a marital discord between the Petitioner No.1Ashish Mishra and Opposite Party No.2-Preeti Trama @ Mishra. The other petitioners are in-laws members. Joint affidavits have been filed by Petitioner No.1husband and Opposite Party No.2-wife in both the cases stating therein that during pendency of these

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applications, both of them have agreed to make a happy end of their matrimonial relationship and accordingly, they have filed a joint application under Section 13(B) of the Hindu Marriage Act before the learned Judge, Family Court, Bhubaneswar for dissolution of their marriage and the matter has been amicably settled between them. The Opposite Party No.2-wife further stated in the affidavit that in view of the aforesaid mutual settlement between them, she does not want to proceed further against the petitioners in both the cases.

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5. 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.1 and opposite party no.2 have already snapped their marital relationship by way of settlement between them before the learned Judge, Family Court, Bhubaneswar, the aforesaid proceedings may be quashed, as no useful purpose is going to be served to continue with the same inasmuch as, hereinafter there shall be bleak chance of conviction and hence, continuance of the prosecution shall be an abuse of the process of court.

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6. Learned counsel for the State does not oppose such submissions.

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7. No doubt, some of the offences are noncompoundable in nature. But, non-compoundability of an offence does not stand on the way of the Court for

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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 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

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the criminal proceedings is filed, the guiding factor in such cases would be to secure:

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(i) ends of justice, or

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(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.

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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 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

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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.

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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 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

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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.” 8. Taking note of the aforesaid authoritative pronouncement of the Apex Court with regard to quashment of the proceeding, in non-compoundable offences on the ground of compromise, in exercise of the power of this Court under Section 482 of Cr.P.C. when the cases of the petitioners are addressed, it appears to this Court that though some of the offences are non-compoundable in nature but, as stated earlier, the same arose out of the marital discord between Petitioner No.1-husband and Opposite Party No.2-wife, the evidence of the case is yet to commence, they have already snapped their marital tie by mutual decree of divorce and Opposite Party No.2-wife does not want to proceed with the case further. The evidence in the aforesaid cases is yet to be commenced. The offences are not serious in nature. In both the cases hereinafter when the Opposite Party No.2-wife does not want to proceed with the matter, there would be bleak chance of conviction. So, continuance of the prosecution in such cases shall be an abuse of the process of the

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court. Otherwise also, the Petitioner No.1 and Opposite Party No.2 having snapped their marital relationship before the Judge, Family Court, Bhubaneswar and for the ends of justice, quashment of the prosecution against the petitioners in both the cases is also required to be made particularly when Opposite Party No.2 does not want to proceed with the criminal prosecution.

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9. I would, therefore, allow both the Criminal Misc. Case applications and quash the impugned orders of cognizance. Consequently, the prosecution launched against the petitioners in both the cases stands quashed. The trial court shall do well to comply with this order on production of the certified copy of the same.

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

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…………………..

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S.Pujahari, J.

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RKS

Ashish Mishra v. State of Orissa

Case brief

What is this about?

What did the court decide?

Ashish Mishra v. State of Orissa

Case brief

What is this about?

What did the court decide?

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