Allowed

Arun Kumar Bhanja v. State of Odisha

Orissa HC16 Mar 2021CRLMC/14/2020

Case brief

AI extract

What is this about?

The High Court of Odisha exercised its powers under Section 482 Cr.P.C. to quash a criminal prosecution filed against a husband and his in-laws. The trial court had launched proceedings for offences including 498-A IPC (since the D.P. Act). The offence arose from marital discord. The wife victim and husband settled their dispute out-of-court, agreeing to a divorce, with the husband paying the full

What did the court decide?

The criminal prosecution launched against the petitioners in J.M.F.C., Barbil, arising out of G.R. Case No.620 of 2017, is hereby quashed.

Arun Kumar Bhanja Vs State of Odisha — Matrimonial and Divorce | Orissa HC (2021)

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IN THE HIGH COURT OF ORISSA, CUTTACK

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CRLMC No.14 of 2020

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1. Arun Kumar Bhanja

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2. Rama Chandra Bhanja

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3. Pruthwiraj Bhanja

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4. Sarojini Bhanja … Petitioners

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-versus –

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1. State of Odisha

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2. Nirupama Baghel

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… Opp. Parties

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CORAM : HON’BLE SHRI JUSTICE S. PUJAHARI

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ORDER

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

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16.03.2021

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2. This application under Section 482 of Cr.P.C. has been filed by the petitioners to quash the entire criminal prosecution launched against them vide G.R. Case No.620 of 2017, arising out of Joda P.S. Case No.140 of 2017 for alleged commission of offences punishable under Sections 498-A/354A/376/511/307/506/120-B IPC and Section 4 of the D.P. Act, pending in the Court of the learned J.M.F.C., Barbil.

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3. It appears that the aforesaid case arises out of a marital discord between the petitioner no.1 and opposite party no.2. The petitioner no.1 is the husband of the informant and other petitioners are in-laws members. A joint affidavit has been filed before this Court by the petitioner no.1 and opposite party no.2-wife stating therein that opposite party no.2 and the petitioner no.1 both have agreed to part each other untying

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their nuptial knot and accordingly they have filed a joint application under Section 13(B) of the Hindu Marriage Act before the learned Judge, Family Court, Keonjhar for dissolution of their marriage as the matter has been amicably settled between them and agreed between the parties that the husband shall pay a sum of Rs.9 lakhs to the wife towards permanent alimony. As per settlement out of Rs.9 lakhs, the wife has already received a sum of Rs.5 lakhs from the husband. Today the opposite party no.2 appeared in person and has received balance amount of Rs.4 lakhs from the husband as full and final settlement of her permanent alimony as such she does not want to proceed against the petitioner no.1-husband and other in-laws in the criminal case in question.

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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.1 and opposite party no.2 have already agreed to snap their matrimonial relationship by way of settlement between them before the learned Judge, Family Court, Keonjhar and the opposite party no.2 has already received a sum of Rs.9,00,000/- from the petitioner no.1 as permanent alimony as per the direction of the learned Judge, Family Court, Keonjhar, the aforesaid proceeding 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.

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5. Learned counsel for the State, on instruction, submits that the opposite party no.2-wife stated before the police that

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out of Rs.9 lakhs settled before the learned Judge, Family Court, Keonjhar, she has received only Rs.5 lakhs and unless she receives Rs.4 lakhs, she will not agree to compromise the dispute with the petitioner no.1. But the rest amount of Rs.4 lakhs is paid today in this Court by the petitioner no.1 and the opposite party no.2 has received the same. The photocopy of the said bankers cheque filed by the petitioners in Court today be kept on record.

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6. No doubt, some of the offences are non-compoundable in nature. But, 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, reliance can be placed on a decision of the Apex Court rendered in the case of Narinder Singh and others vrs. State of Punjab and another, reported in (2014) 6 SCC 466 . The Apex Court in that case 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 to quash the criminal prosecution on the ground of compromise in exercise of power under Section 482 of Cr.P.C., have held as follows :-

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“29. 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

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while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings: 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. 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

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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 overwhielmingly 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 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

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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 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. The dispute arises out of marital discord even if the allegation of attempt to rape and murder has been made against the petitioner no.3-brother-in-law. The matter has been compromised between the parties. A joint affidavit has been filed by the petitioner no.1 as well as the opposite party no.2-wife indicating that the matrimonial relationship of the opposite party no.2-wife with petitioner no.1 to settle all the disputes on receipt of an amount of Rs.9,00,000/- as permanent alimony from the petitioner no.1 as per the direction of the learned Judge, Family Court, Keonjhar. The case is yet to be committed. The allegation of attempt to murder is by throttling when the opposite party no.2 prevented the petitioner no.3 making an attempt to rape in her matrimonial home. The victim opposite party no.2 also appeared in person in the Court and submitted not to proceed with the case and acknowledged receipt of the amount of Rs.9 lakhs. In such premises, when the parties

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have amicably settled the dispute and the opposite party no.2-wife, the victim has come forward indicating that she does not want to proceed in the criminal case against the petitioners which arises out of matrimonial disputes, even an allegation of attempt to rape and murder has been raised, hereinafter there shall be bleak chance of conviction in this case, so the continuance of the prosecution shall be an abuse of the process of the Court.

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8. I would, therefore, allow this Criminal Misc. Case application, consequently the aforesaid criminal prosecution launched against the petitioners now pending before the J.M.F.C., Barbil stands quashed. The trial court shall do well to comply with this order on production of a copy of this order. The parties may utilize a copy of this order in proof of the payment of the permanent alimony before the Judge, Family Court, Keonjhar also.

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As the restrictions due to the COVID-19 situation are continuing, learned counsel for the parties may utilize a soft copy of this order available in the High Court’s website or print out thereof at par with certified copy in the manner prescribed, vide Court’s Notice No.4587, dated 25^th March, 2020.

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MRS

Arun Kumar Bhanja v. State of Odisha

Case brief

What is this about?

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Arun Kumar Bhanja v. State of Odisha

Case brief

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