CRLR/2/2005 of KISHAN GARKOTI and ORS. Vs STATE

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Revision No. 02 of 2005

Kishan Garkoti and others

……. Revisionists

versus

State of Uttarakhand

……. Respondents

Mr. M.C. Pande, Sr. Advocate assisted by Mr. Devesh Upreti, Advocate for the revisionists. Mr. P.S. Saun, Dy. Advocate General for the respondent State.

U.C. Dhyani, J.(Oral)

Present criminal revision is directed against the judgment and order dated 04.01.2005, passed by learned Sessions Judge, Champawat, in criminal appeal no. 04 of 2004, whereby said Court has confirmed the judgment and order dated 29.06.2004 passed by learned Judicial Magistrate, Champawat, in criminal case no. 29 of 2003, convicting the accused-revisionists under Section 498A of IPC and Section 3 / 4 of the Dowry Prohibition Act. The convicts were sentenced to undergo three years’ rigorous imprisonment alongwith fine of Rs. 2000/- each under section 498A of IPC. Convicts were also sentenced to rigorous imprisonment for period of three years alongwith fine of Rs. 5,000/- each and rigorous imprisonment for period of two years alongwith fine of Rs. 2,000/- each under Sections 3 and 4 of the Dowry Prohibition Act, respectively.

2) Consequent upon filing of charge-sheet, revisionists faced trial for the offences punishable under

Section 498A of IPC and Section ¾ of the Dowry Prohibition Act. Learned trial court convicted and sentenced the revisionists appropriately for the aforesaid offences. Aggrieved against the same, criminal appeal was preferred before the Sessions Judge, which was dismissed. Still aggrieved against the same, present criminal revision was filed by the convicts.

3) An application, being CRMA No. 1115 of 2012, was moved by the revisionists for compounding the offences for which they were convicted and for setting aside the sentence awarded to them. The said application is supported by an affidavit of one of the convicts. It is the statement of learned counsel for the revisionists that the parties have entered into compromise and on the basis of such compromise, the suit instituted by the victim against the present revisionists for return of stree-dhan was decided on 29.09.2008. copy of the judgment rendered by learned District Judge in O.S. no. 02 of 2006, captioned as Smt. Mamta Garkoti vs Kishan Garkoti and others, on 29.09.2008, is enclosed. In the said original suit, the victim, on having received Rs. 90,000/- agreed to decide the suit on the basis of compromise. Copies of the statements of the victim (estranged wife) and accused Kishan Garkoti (husband) have also been filed in support of the contention that the parties have settled their dispute amicably.

4) Victim stated, among other things, on 20.09.2008, that divorce has taken place between her and

Kishan Garkoti. She has agreed to settle the dispute by accepting Rs.90,000/- in lieu of the articles given in the marriage. In her cross-examination, she (wife) has specifically stated that no cause for grievance is left after her husband and in-laws agreed to pay Rs. 90,000/- to her. She does not want to pursue the matter any further. She has no concern with Kishan Garkoti or his family members after her marriage with Kishan Garkoti was dissolved. Likewise, Kishan Garkoti, in his statement recorded on the selfsame day, also stated that his marriage with Mamta Garkoti has been dissolved. Both of them have entered into compromise. It has been agreed between the parties that Kishan Garkoti and others will pay Rs. 90,000/- in four equal installments within year (to which the victim agreed). No demand for dowry was ever made by Kishan Garkoti. In his cross-examination, husband said that stree-dhan of Mamta Garkoti was lying in his house and the matter is agreed to be settled by paying sum of Rs. 90,000/- to the victim (wife). Whereas the impugned judgments were passed on 29.06.2004 and 04.01.2005, such compromise took place on 20.09.2008.5) Both the offences, for which the revisionists were convicted are non-compoundable offences within the scheme of Section 320 of Cr.P.C.

6) The only question which is left for consideration of this Court is whether the victim (estranged wife) should be permitted to compound such offences against the accused-revisionists or not?

7) Hon’ble Supreme Court has permitted compounding in non-compoundable offences in the cases of B.S. Joshi and others vs State of Haryana, (2003) 4 SCC 675; Nikhil Merchant vs. C.B.I. and another, 2008 AIR SCW 7501 andDimpey Gujral vs Union Territory through Administrator U.T. Chandigarh and others, [2013 (123) AIC 119 (S.C.). Further, the Hon’ble Apex Court inGian Singh vs. State of Punjab and another (2013) 1 SCC (Cri) 160,has observed, in the context of such cases, as under:

“The position that emerges from the above discussion can be summarized thus: the power of the High Court in quashing criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint of F.I.R. may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statues like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the

parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceedings or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.”

8) Since the victim has made statement in the court below that she has settled the dispute amicably with the accused-revisionists, therefore, the conviction and sentence awarded to the revisionists should be set aside in the interest of justice.

9) Before parting with the judgment, it will also be worthwhile to mention here the pronouncement of Hon’ble Supreme Court in Preeti Gupta and another vs State of Jharkhand and another, (2010) 7 SCC 667. Relevant extract of Preeti Gupts’s case (supra) is reproduced hereinunder:

“To find out the truth is Herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic

realities into consideration while dealing with matrimonial cases.”

10) Compounding Application CRMA No. 1115 of 2012 is allowed. Consequently, the criminal revision is also allowed. The conviction and sentence awarded to the revisionists by the courts below is hereby set aside. Accused-revisionists are on bail. Their bail bonds are cancelled and sureties stand discharged. They need not surrender.

11) For avoidance of doubt, it is made clear that it will be open to the victim to move for restoration of present criminal revision, if, in her perception, no such compromise has taken place. In that event, this Judgment and order, which is purely based upon the compounding application, will be set aside and the matter will be heard on merits. Let copy of this judgment, therefore, be sent to the victim at her latest address for information.

12) copy of this judgment alongwith the lower court records be sent to the Court below for compliance.

(U.C. Dhyani, J.)

Dt. April 23, 2014. Negi