W.P.(CRL)/2572/2015 of VISHAL KAUSHIK Vs THE STATE ( GOVT OF NCT OF DELHI) & ANR

*IN THE HIGH COURT OF DELHI AT NEW DELHI+W.P.(CRL) 2572/2015 & Crl.M.A. No.16323/2015

Date of Decision : March 10[th], 2016

VISHAL KAUSHIK...PetitionerThroughMr.Vivek Aggarwal, Adv.

versus

THE STATE (GOVT OF NCT OF DELHI) & ANR...RespondentsThroughMs.Richa Kapoor, A.S.C. withMr.Kamal Kumar Ghei, APP for theState.Respondent No.2 in person

CORAM:HON'BLE MR. JUSTICE P.S.TEJI

P.S.TEJI, J.

1.The present petition under Section 482 Cr.P.C. has been filedby the petitioner, namely, Sh. Vishal Kaushik for quashing of FIRNo.284/2013dated01.10.2013,underSections65/66/67ofInformation & Technology Act, 2000 registered at Police StationPaschim Vihar on the basis of the report of the Counseling Cell,Family Courts, Dwarka Court, New Delhi in view of the settlementarrived at between the petitioner and the respondent no.2, namely,Cheshta Sharma on 05.12.2014.

2.Learned Additional Public Prosecutor for respondent-State

submitted that the respondent no.2, present in the Court has beenidentified to be the complainant/first informant in the FIR in questionby her counsel.

3.The factual matrix of the present case is that the FIR in questionwas lodged by the complainant on the allegation that on 10.07.2013,while the complainant was working on her computer and then shediscovered that the password for her id on Gmail account was notworking and it was changed on 01.07.2013. Thereafter, she found outthat her facebook password has also been changed. Even the recoveryphone number for her Gmail account was changed. Later on, thecomplainant filed complaint to the SHO, P.S. Paschim Vihar, NewDelhi on 13.07.2013. Thereafter, the complainant managed to againchange the password of her account and when she opened her mail,she found mail saying that her password has been recently changed.The complainant then requested for all recent activity details from heraccount from Google, from which it was revealed that the husband ofthe complainant i.e. the petitioner was behind the illegal act ofhacking.

Thereafter, the complainant/respondent no.2 lodged the FIR in

question against the petitioner. Later on, both the petitioner and therespondent no.2 mutually settled their matter before the CounselingCell, Family Courts, Dwarka, New Delhi.

4.Respondent No.2 present in the Court, submitted that thedispute between the parties has been amicably resolved. As per thesettlement, it is agreed that the parties shall take divorce by mutualconsent. It is further agreed that the petitioner shall pay Rs. 25 Lacs tothe respondent no.2 as full and final settlement towards stridhan,permanent alimony, dowry articles, jewellery, past, present and futureand nothing remains due towards this marriage. It is also agreed thatthe petitioner shall pay Rs. 25,000/- cash to the respondent no.2 on05.12.2014 and Rs.25,000/- on 06.12.2014, in lieu of this settlement.It is further agreed that the first motion petition will be filed withinten days of this settlement and the petitioner will pay Rs.10,00,000/-to respondent no.2 in the form of DD or cash at the time ofstatements. It is further agreed that the second motion petition will befiled after the expiry of statutory period and the petitioner shall pay anamount of Rs. 10,00,000/- in the form of cash/DD to the respondentno.2. It is further agreed that the parties will approach this Court forquashing FIR No.227/2013 under Section 498A/406 IPC at PoliceStation Paschim Vihar and the FIR in question within one month ofobtaining the decree of divorce and the petitioner will pay Rs. 4.5Lacs in the form of cash or DD to the respondent no.2. It is alsoagreed that the respondent no.2 shall withdraw her case under D.V.Act pending in the concerned Court on 09.12.2014. It is also agreedthat respondent no.2 shall withdraw her application filed before thisCourt, which is fixed for hearing on 05.03.2015 within one month ofthis settlement by fling an application for withdrawal. It is also agreedthat neither of the parties to this settlement shall pursue any pendingcases or file new complaint(s) against each other. It is also agreed thatthe parties shall not interfere in each other’s life in the future.Respondent No.2 affirmed the contents of the aforesaid settlement andof her affidavit dated 03.10.2015 supporting this petition. In theaffidavit, the respondent no.2 has stated that she has no objection ifthe FIR in question is quashed. All the disputes and differences havebeen resolved through mutual consent. Now no dispute with petitionersurvives and so, the proceedings arising out of the FIR in question bebrought to an end. Statement of the respondent No.2 has been

recorded in this regard in which she stated that she has entered into

compromise with the petitioner and has settled all the disputes with

him. She further stated that she has no objection if the FIR in question

is quashed.

5.In Gian Singh v. State of Punjab (2012) 10 SCC 303 Apex

Court has recognized the need of amicable resolution of disputes in

cases like the instant one, by observing as under:-

“61.In other words, the High Court must considerwhether it would be unfair or contrary to the interestof justice to continue with the criminal proceedingsorcontinuationofcriminalproceedingswouldtantamount to abuse of process of law despitesettlement and compromise between the victim andthe wrongdoer and whether to secure the ends ofjustice, it is appropriate that criminal case is put to anend and if the answer to the above question(s) is inthe affirmative, the High Court shall be well withinits jurisdiction to quash the criminal proceedings.”

6.The aforesaid dictum stands reiterated by the Apex Court in

recent judgment in Narinder Singh v. State of Punjab (2014) 6 SCC

466. The relevant observations of the Apex Court in Narinder Singh

(Supra) are as under:-

“29. In view of the aforesaid discussion, we sum upand lay down the following principles by which theHigh Court would be guided in giving adequatetreatment to the settlement between the parties andexercising its power under Section 482 of the Codewhile accepting the settlement and quashing the

proceedings or refusing to accept the settlement withdirection to continue with the criminal proceedings:

29.1 Power conferred under Section 482 of the Codeis to be distinguished from the power which lies inthe Court to compound the offences under Section320 of the Code. No doubt, under Section 482 of theCode, the High Court has inherent power to quash thecriminal proceedings even in those cases which arenot compoundable, where the parties have settled thematter between themselves. However, this power is tobe exercised sparingly and with caution.

29.2. When the parties have reached the settlementand on that basis petition for quashing the criminalproceedings is filed, the guiding factor in such caseswould be to secure:

(i) ends of justice, or

(ii) to prevent abuse of the process of any court.While exercising the power the High Court is to forman opinion on either of the aforesaid two objectives.

29.3. Such power is not to be exercised in thoseprosecutions which involve heinous and seriousoffences of mental depravity or offences like murder,rape, dacoity, etc. Such offences are not private innatureandhaveaseriousimpactonsociety.Similarly, for the offences alleged to have beencommitted under special statute like the Prevention ofCorruption Act or the offences committed by publicservants while working in that capacity are not to bequashed merely on the basis of compromise betweenthe victim and the offender.29.4. On the other hand, those criminal cases havingoverwhelmingly and predominantly civil character,particularlythosearisingoutofcommercialtransactions or arising out of matrimonial relationshipor family disputes should be quashed when the partieshave resolved their entire disputes among themselves.

7.The inherent powers of the High Court ought to be exercised to

prevent the abuse of process of law and to secure the ends of justice.The respondent no.2 agreed to the quashing of the FIR in question andhas stated that the matter has been settled out of her own free will. Asthe matter has been settled and compromised amicably, so, therewould be an extraordinary delay in the process of law if the legalproceedings between the parties are carried on. So, this Court is ofthe considered opinion that this is fit case to invoke the jurisdictionunder Section 482 Cr.P.C. to prevent the abuse of process of law andto secure the ends of justice.

8.The incorporation of inherent power under Section 482 Cr.P.C.is meant to deal with the situation in the absence of express provisionof law to secure the ends of justice such as, where the process isabused or misused; where the ends of justice cannot be secured;where the process of law is used for unjust or unlawful object; toavoid the causing of harassment to any person by using the provisionof Cr.P.C. or to avoid the delay of the legal process in the delivery ofjustice.Whereas, the inherent power is not to be exercised tocircumvent the express provisions of law.

9.It is settled law that the inherent power of the High Court under

Section 482 Cr.P.C. should be used sparingly. The Hon’ble ApexCourt in the case of State of Maharashtra through CBI v. VikramAnatrai Doshi and Ors. MANU/SC/0842/2014 and in the case ofInder Singh Goswami v. State of Uttaranchal MANU/SC/0808/2009has observed that powers under Section 482 Cr.P.C. must beexercised sparingly, carefully and with great caution. Only when theCourt comes to the conclusion that there would be manifest injusticeor there would be abuse of the process of the Court if such power isnot exercised, Court would quash the proceedings.

10.It is well settled law that where the High Court is convincedthat the offences are entirely personal in nature and therefore do notaffect public peace or tranquillity and where it feels that quashing ofsuch proceedings on account of compromise would bring about peaceand would secure ends of justice, it should not hesitate to quash them.In such cases, pursuing prosecution would be waste of time andenergy. Non-compoundable offences are basically an obstruction inentering into compromise.In certain cases, the main offence iscompoundable but the connected offences are not. In the case of B.S.Joshi and others v. State of Haryana and another 2003 (4) SCC 675

the Hon’ble Apex Court observed that even though the provisions ofSection 320 Cr.P.C. would not apply to such offences which are notcompoundable, it did not limit or affect the powers under Section 482Cr.P.C. The Hon’ble Apex Court laid down that if for the purpose ofsecuring the ends of justice, quashing of FIR becomes necessary,section 320 Cr.P.C. would not be bar to the exercise of power ofquashing.In the nutshell, the Hon’ble Apex Court justified theexercise of powers underSection 482 Cr.P.C. to quash theproceedings to secure the ends of justice in view of the special factsand circumstances of the case, even where the offences were non-compoundable.

In the light of the aforesaid, this Court is of the view that thereshould be no impediment in quashing the FIR under Sections65/66/67 IT Act, if the Court is otherwise satisfied that the facts andcircumstances of the case so warrant.

11.In the facts and circumstances of this case and in view ofstatement made by the respondent No.2, the FIR in question warrantsto be put to an end and proceedings emanating thereupon need to bequashed.

12.Accordingly, this petition is allowed and FIR No.284/2013dated01.10.2013,underSections65/66/67ofInformation&Technology Act, 2000 registered at Police Station Paschim Vihar andthe proceedings emanating therefrom are quashed against thepetitioner.

13.This petition is accordingly disposed of.

14.The application Crl.M.A. No.16323/2015 is also disposed of.

MARCH 10, 2016dd

(P.S.TEJI)JUDGE