C482/790/2010 of VISHNU @ VISHNU KHANNA Vs STATE OF UTTARAKHAND AND ANR

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Misc. Application (C-482) No.789 of 2010

Vishnu @ Vishnu Khanna & others … Applicants

State of Uttarakhand and another

… Respondents

AND

Criminal Misc. Application (C-482) No.790 of 2010

Vishnu @ Vishnu Khanna & others … Applicants

State of Uttarakhand and another

… Respondents

Mr. G. D. Joshi, Advocate for the applicants. Mr. P. S. Saun, A.G.A. for the State of Uttarakhand. Mr. Bhuwan Bhatt, Advocate for the respondent no.2.

U. C. Dhyani, J. (Oral)

1.Since the applicants and respondents in both the aforesaid petitions are the same and the parties have settled their disputes amicably in both the aforesaid petitions, therefore, they are being decided by this common judgment and order for the sake of brevity and convenience.

2.The applicants, by means of Application (under Section 482 Cr.P.C.) bearing no.789/2010, seek to quash the summoning order dated 08.07.2010 passed by the Special Judicial Magistrate, C.B.I., Dehradun in Criminal Case No.7328 of 2010 titled as Smt. Ritu Khanna vs. Vishnu @ Vishnu Khanna. The applicants also seek to quash the proceedings of the aforementioned criminal case pending before the said court.

3.On the basis of complaint filed by respondent no.2, applicants were summoned to face the trial under Sections 18, 19 & 20 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as ‘the Act’). Aggrieved against the same, C482 no.789/2010 was filed by the accused-applicants.

4.By way of filing another petition (under Section 482 Cr.P.C.) bearing no.790/2010, the applicants seek to quash the charge-sheet dated 18.05.2010 and summoning order dated 22.06.2010 passed by the Chief Judicial Magistrate, Dehradun in Case No.1466 of 2010 titled as State vs. Vishnu @ Vishnu Khanna, under Sections 498A, 323, 504, 506 IPC and Section ¾ Dowry Prohibition Act. The applicants also seek to quash the proceedings of the aforementioned case pending before the said court.

5.On the basis of an FIR filed by respondent no.2 against the applicants on 14.04.2010, charge-sheet was submitted against the accused-applicants for the offences punishable under Sections 498A, 323, 506 IPC and ¾ Dowry Prohibition Act. The cognizance was taken by the Chief Judicial Magistrate, Dehradun, vide order dated 22.06.2010 and accused-applicants were summoned to face the trial. Aggrieved against the same, petition (under Section 482 Cr.P.C.) bearing no.790/2010 was filed by the accused-applicants.

6.A Compounding Application (CRMA No.22 of 2014) is filed before this Court in C482 no.789/2010 to show that the parties have settled their disputes amicably. Complainant-respondent no.2 Smt. Ritu Khanna is present in person, who is duly identified by her counsel Mr. Bhuwan Bhatt. The husband of complainant (i.e. applicant no.1-Vishnu @ Vishnu Khanna) is also present in person in the Court, who is duly identified by his counsel Mr. G. D. Joshi. Applicant no.1-Vishnu @ Vishnu

Khanna and respondent no.2-Smt. Ritu Khanna have also filed affidavits to indicate that they have settled their dispute amicably. The terms of settlement are also mentioned in CRMA no.22/2014.

7.Likewise, in petition no.790/2010 also, the parties have filed Compounding Application (CRMA No.23 of 2014) before this Court to show that the parties have settled their disputes amicably. The said compounding application is supported by the affidavits of applicant no.1 and respondent no.2.

8.As stated above, both the parties to the dispute, i.e., estranged couple is present in person before this Court. Respondent no.2 stated that she is not keen to prosecute the applicants. She stated that she has no objection, if the proceedings of case no.7328/2010 pending in the court of Special Judicial Magistrate, C.B.I., Dehradun and Criminal Case no.1466/2010 pending in the court of Chief Judicial Magistrate, Dehradun are quashed against the applicants.

9. Offences punishable under Sections 323, 504 & 506 I.P.C. are compoundable offences within the scheme of Section 320 Cr.P.C. Offences under Section 498-A IPC, Section ¾ Dowry Prohibition Act are non-compoundable offences within the scheme of Section 320 Cr.P.C. and Sections 18, 19 & 20 of the Act are also not the compoundable offences. The question is – whether the complainant should be permitted to compound such offences against the applicants or not?

10.Reliance was placed upon the pronouncements of the Hon’ble Apex Court in Gian Singh vs. State of Punjab and another, (2013) 1 SCC (Cri) 160, Nikhil Merchant vs.

Central Bureau of Investigation and another, (2008) 9 SCC 667 and B. S. Joshi vs. State of Haryana, (2003) 4 SCC 675. Hon’ble Apex Court in B. S. Joshi’s case (supra)and Nikhil Merchant’s case (supra)held that Section 320 Cr.P.C. will not come in the way of High Court in exercising it’s inherent jurisdiction under Section 482 Cr.P.C.

11.In Gian Singh’s case (supra), Hon’ble Apex Court has observed as below:-

“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 thecompromise 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.”

12.The reply to the question posed in para 9 of this judgment is, therefore, in the ‘affirmative’. Since the complainant has buried all her differences against the applicants, therefore, she should be permitted to compound such offences against the applicants in the interest of justice.

13.Both the Compounding Applications (CRMA No.22/2014 & 23/2014) are allowed in the interest of justice. As consequence thereof, both the petitions under Section 482 Cr.P.C. are allowed. The summoning order dated 08.07.2010 and the proceedings of Case No.7328 of 2010 titled as Smt. Ritu Khanna vs. Vishnu @ Vishnu Khanna pending in the court of Special Judicial Magistrate, C.B.I., Dehradun are hereby quashed. The charge-sheet dated 18.05.2010 as well as the summoning order dated 22.06.2010 and the proceedings of Criminal Case No.1446 of 2010 titled as State vs. Vishnu @ Vishnu Khanna pending in the court of Chief Judicial Magistrate, Dehradun are also quashed on the basis of compromise entered into between the parties.

(U. C. Dhyani, J.)

Dated 04[th] January, 2014 Rawat