Category Archives: settlement means money

wife’s Advocate taking % CUT of alimony is professional misconduct. Denied bail & to remain in jail !!

In this case the wife / ablaa nari, the diya of the house, lodged an F.I.R. against her husband and other in-laws’ family members and accordingly, Bhubaneswar Mahila P.S. Case No.347 of 2015 was registered under sections #498A/#Ipc417/#ipc342/#ipc494/#ipc506/#ipc34 of the Indian Penal Code read with section 4 of the Dowry Prohibition Act..

Husband being scared of his job (bank employee) agreed to a “#settlement”, meaning payment of huge sums of money, as alimony even though the abalaa nari, so called #victim #wife is also an #educated lady and she is working as Asst. #Manager in #Andhra #Bank at Power House Branch, Bhubaneswar !!

Accordingly the wife was expecting Rs 50,00,000

However it seems that wife’s advocate cheated her , did NOT get her the expected INR50,00,000 (INR 50 lakhs, – INR 5 million) and also issued a notice dt 20.05.2016 to the wife / so called victim wherein it is indicated that she had promised to give 10% of the amount of permanent alimony which she would get and therefore, she has to clear Rs.2,20,000/- (rupees two lakh twenty thousand) within fifteen days of the receipt of the notice !!!!

In summary and after a lot of allegations and counter allegations the advocate is told that such, cut / share is illegal and so he is denied bail !!

The ablaa wife who already received 1650000 from the husband / ex husband is waiting for more money

Jail-Bars-and-Cuffs-2009_jpg_475x310_q851-e1333379595364


IN THE HIGH COURT OF ORISSA: CUTTACK

ABLAPL No. 5399 of 2017

An application under section 438 of the Code of Criminal Procedure in connection with C.T. case No. 2702 of 2016 pending in the Court of S.D.J.M., Bhubaneswar.


Sanjaya Narayan Sahoo ……… Petitioner

-Versus-

State of Odisha ……… Opposite party

For Petitioner – Mr. Devashis Panda

For Opp. Party: – Mr. Chita Ranjan Swain Addl. Standing Counsel

For informant – Mr. Srinivas Mohanty


P R E S E N T:

THE HONOURABLE MR. JUSTICE S.K. SAHOO


Date of Hearing: 18.04.2018 Date of Order: 01.05.2018


S. K. SAHOO, J.

  1. The petitioner Sanjaya Narayan Sahoo has filed this application under section 438 of Cr.P.C. seeking pre-arrest bail in connection with C.T. Case No.2702 of 2016 pending in the Court of learned S.D.J.M., Bhubaneswar which arises out of Kharavela Nagar P.S. Case No.188 of 2016 for offences punishable under sections 294, 323, 354, 420, 427, 468, 471 of the Indian Penal Code.
  2. One Pravati Swain, wife of Ashok Kumar Gupta filed a complaint petition in the Court of learned S.D.J.M., Bhubaneswar on 13.5.2016 against her husband and the petitioner who is an advocate of Bhubaneswar Bar. The said complaint petition was sent by the learned S.D.J.M., Bhubaneswar under section 156(3) of Cr.P.C. to the Inspector in charge, Kharavela Nagar police station for registration of the case and investigation and accordingly on 12.06.2016 Kharavela Nagar P.S. Case No.188 of 2016 was registered. It is the case of the complainant-victim that her husband Ashok Kumar Gupta married to another lady and tortured her demanding more dowries for which one F.I.R. was lodged by her against her husband who was an employee of Oriental Bank of Commerce. Since the service of her husband would have been affected due to institution of the first information report, in order to save his service, he made an attempt for amicable settlement. The victim, her husband and their respective family members decided to dissolve the marriage between the victim and her husband and it was agreed upon that the victim would be paid a sum of Rs.35,00,000/- (rupees thirty five lakh) as permanent alimony by her husband. The victim engaged the petitioner as her advocate who was known to her to safeguard her interest. The petitioner was engaged as an advocate in Civil Proceeding No.32 of 2016 which was filed by the victim and her husband jointly under section 7 of the Family Courts Act, 1984 read with section 28 (1) of this Special Marriage Act, 1954 in the Court of Judge, Family Court, Bhubaneswar. It is the case of the victim that on the advice of the petitioner, she signed the divorce petition and agreement for permanent alimony and she received only Rs.9.5 lakh on 11.01.2016 but her husband in criminal conspiracy with the petitioner cheated her sum of Rs.18.5 lakh. Both the accused persons denied their liability to pay money to the victim after taking fraudulent illegal deed of divorce. On the deed of divorce, the petitioner took her signatures illegally giving her an impression regarding receipt of payment of Rs.7 lakh in the month of March 2016. The victim engaged a new advocate doubting the conduct and character of the accused persons and through her new advocate, she came to know that fraud/cheating has been practised on her. On 12.05.2016 when the victim asked her husband about such fraud/cheating, he abused her in filthy language, pushed and dragged her before public with intent to disrobe her and threatened to kill her.

  3. Mr. Devashis Panda, learned counsel appearing for the petitioner contended that the victim is an educated lady and she is working as Asst. Manager in Andhra Bank at Power House Branch, Bhubaneswar and she has deliberately suppressed her status in the complaint petition as well as in the original mutual divorce proceeding. It is contended that the victim married Ashok Kumar Gupta on 08.08.2013 before the Sub-Registrar, Bhubaneswar but after marriage, dispute arose between the parties. When the victim came to know about the marital status of her husband, she lodged an F.I.R. against her husband and other in-laws’ family members and accordingly, Bhubaneswar Mahila P.S. Case No.347 of 2015 was registered under sections 498-A/417/342/494/506/34 of the Indian Penal Code read with section 4 of the Dowry Prohibition Act. It is further contended that after lodging of the F.I.R. by the victim, the matter was amicably settled between the parties and as per their own decision, a divorce proceeding was filed. It is further contended that as per the agreement between the parties, a sum of rupees nine lakh fifty thosand was transferred from the account of the husband of the victim to the account of Panchu Swain who is the father of the victim on 11.01.2016 on the date of filing of the divorce petition. Subsequently on 19.03.2016 the husband of the victim issued four cheques in favour of the victim, total amounting to rupees seven lakh which was also encashed by the victim. It is contended that the victim and her husband executed a mutual divorce deed before the D.S.R., Bhubaneswar on 19.03.2016 and in the said deed of divorce, there was no mention about the quantum of permanent alimony. It is contended that the petitioner has never executed any document with regard to the quantum of permanent alimony and the victim never produced any original document with regard to permanent alimony as alleged before the Court or before the Investigating Officer and therefore, the conduct of the victim is suspicious. It is further contended that after filing of the complaint petition/F.I.R., the victim filed a petition before the learned Judge, Family Court, Bhubaneswar for declaration of the registered divorce deed dated 19.03.2016 as fraudulent and void with a further prayer for permanently restraining her husband in using the divorce deed for any purpose and also for recovery of Rs.18,50,000/- (rupees eighteen lakh fifty thousand) only from her husband and the said proceeding was registered as C.P. No.330 of 2016 which was ultimately dismissed on 16.01.2017. It is further contended that after changing the counsel, the victim has instituted a false case against the petitioner to harass him on the accusation of preparation of forged document and cheating. It is further contended that if any outstanding dues was there towards permanent alimony, the victim could have instituted appropriate proceeding for recovery of such amount from her husband and the petitioner has been unnecessarily dragged into the dispute between the victim and her husband. It is further contended that there is no chance of absconding or tampering with the evidence and since the petitioner is an advocate of Bhubaneswar Bar, unless he is released on anticipatory bail, he will face unnecessary humiliation in the society. The petitioner filed an additional affidavit annexing certain relevant documents. Mr. Srinivas Mohanty, learned counsel appearing for the victim in his imitable style vehemently opposed the prayer for bail and contended that the conduct of the petitioner as an advocate is highly suspicious and he was in hand in glove with the husband of the victim although he was the advocate for the victim and he conspired with the husband of the victim, created forged documents in order to cheat the victim who without knowing the niceties of law reposed trust on the petitioner and believed the petitioner and signed on different documents as told to her by the petitioner on good faith and she was unaware about the ill intention of her husband and also the petitioner. It is contended by the learned counsel for the victim that knowing full well that a mutual divorce petition can only be entertained by the learned Judge, Family Court, Bhubaneswar, a divorce deed as per mutual consent was prepared on the advice of the petitioner wherein nothing was mentioned about the permanent alimony deliberately and the victim put her signatures thereon on good faith as advised by the petitioner. It is contended by the learned counsel that after coming to know about the illegal activities of her husband and the petitioner, the victim filed Civil Proceeding No.330 of 2016 before the learned Judge, Family Court, Bhubaneswar for declaring the registered deed dated 19.03.2016 purporting divorce as fraudulent and void and also permanently restraining her husband for using the divorce deed 19.03.2016 for any purpose and for recovery of rupees eighteen lakh fifty thousand from her husband. The learned Judge, Family Court, Bhubaneswar vide order dated 16.01.2017 declared the registered deed 19.03.2016 as illegal, void and inoperative and restrained the husband of the victim permanently from using the said deed till a decree of divorce dissolving the marriage between the victim and her husband is pronounced by a competent Court. The prayer for recovery of rupees eighteen lakh fifty thousand as was claimed by the victim from the salary of her husband stood dismissed. Mr. Chita Ranjan Swain, learned Addl. Standing counsel produced the case records and opposed the prayer for bail and contended that the allegation against the petitioner is serious in nature and being an Advocate, since he has flouted the professional ethics, he is not entitled to be released on anticipatory bail.

  4. During hearing of the bail application, on 05.07.2017 the learned counsel for the State took time for recording the 164 Cr.P.C. statement of the victim and accordingly, the 164 Cr.P.C. statement of the victim was recorded on 12.07.2017. In her statement recorded under section 164 Cr.P.C., the victim has stated, inter alia, that when dissention started with her husband Ashok Kumar Gupta, she agreed for a mutual divorce with permanent alimony of Rs.50,00,000/- (rupees fifty lakh) only and accordingly, she instructed the petitioner who was her friend and an advocate to prepare the divorce agreement with a sum of Rs.50,00,000/- (rupees fifty lakh) only. She stated that the petitioner took her signatures in Vakalatnama, stamp papers and also in blank papers but the petitioner prepared an agreement for permanent alimony of Rs.35,00,000/- (rupees thirty five lakh) only. The original agreement was not given to the victim and after ten days, a xerox copy of the agreement was given to her. She further stated that Rs.9.5 lakh was given to her by way of cheques and in the agreement, it was written that Rs.15.5 lakh would be given in the month of February 2016 which was not given to her. In March 2016, cheques amounting to Rs.7,00,000/- (rupees seven lakh) only in total were given to her and some of her signatures were taken in the Marriage Registration Office in the deed of divorce and it was told to her that notice would be issued to her and the balance amount of Rs.8.5 lakh would be given to her afterwards. It is further stated that the petitioner avoided receiving phone calls from her and she came to know from her husband that there has already been divorce between them and accordingly, she filed a petition to cancel the deed of divorce. It is further stated in her 164 Cr.P.C. statement that after she lodged F.I.R. against the petitioner, the petitioner came to her Branch Office and threatened her to kill and she also received a legal notice on behalf of the petitioner demanding 10% of the alimony which she received from her husband.

  5. On going through the case records and documents filed by the respective parties, it appears that an agreement for permanent alimony was executed between the victim and her husband namely Ashok Kumar Gupta on 11.01.2016 before Sri P.K. Nanda, Notary Public, Bhubaneswar wherein it is mentioned that due to misunderstanding between the parties, they decided to divorce each other and divorce suit bearing C.P. No.32 of 2016 was filed before the Family Court, Bhubaneswar. It is further indicated that the husband of the victim agreed to pay a sum of Rs.35,00,000/- (rupees thirty five lakh) to the victim and on that day he paid a sum of Rs.9,50,000/- (rupees nine lakh fifty thousand) to the victim by way of a cheque. It is further indicated that the husband of the victim shall pay a further sum of Rs.15,50,000/- (rupees fifteen lakh fifty thousand) to the victim in the month February 2016 and before the close of C.P. No.32 of 2016 filed before the Marriage Officer, Bhubaneswar, the husband of the victim would pay Rs.10,00,000/- (rupees ten lakh) to the victim for permanent alimony/compensation. According to the victim as per her 164 Cr.P.C. statement, by taking her signatures in stamp papers and blank papers, such a document was prepared. On bare perusal of the agreement for permanent alimony, it appears that the petitioner as advocate has certified that the agreement was drafted by him as per the instruction of the parties. If the victim had specifically instructed to the petitioner to prepare divorce agreement with a sum of Rs.50,00,000/- (rupees fifty lakh), there was no earthly reason on the part of the petitioner to prepare an agreement for permanent alimony with a sum of Rs.35,00,000/- (rupees thirty five lakh) without intimating the victim in that respect. The victim was not provided with the original of the agreement for permanent alimony instantly but after ten days, she was given a xerox copy. It appears that the agreement paper was purchased by Ashok Kumar Gupta, husband of the victim on 11.01.2016 from C.R. Prusty, Stamp Vender and he has also received the original agreement on 11.01.2016 which would be evident from the endorsement made in the agreement. On 11.01.2016 a petition for divorce by mutual consent under section 28 of the Special Marriage Act, 1954 was filed before the Judge, Family Court, Bhubaneswar by the victim and her husband which was registered as Civil Proceeding No.32 of 2016. In the said petition, the victim is shown to have been identified by the petitioner on 11.01.2016 before Jagyneswar Acharya, Notary Public, Bhubaneswar. Most peculiarly there is no mention about any fixation of permanent alimony between the parties which is to be given by the husband of the victim to her. Similarly in the agreement for permanent alimony, it is mentioned that C.P. No.32 of 2016 was filed before Marriage Officer, Bhubaneswar which is not correct. Therefore, prima facie it appears that on 11.01.2016 agreement for permanent alimony was executed so also petition for divorce by mutual consent was filed before the learned Judge, Family Court, Bhubaneswar in C.P. No.32 of 2016. The agreement for permanent alimony was drafted by the petitioner and he also certified the contents of the agreement to have been drafted as per the instruction of the parties. The petitioner has also identified the victim before the Notary Public on the very day in the petition for divorce by mutual consent. The petitioner has filed an additional affidavit before this Court which is dated 02.08.2017 in which he has mentioned in paragraph 7 that he had no knowledge about the quantum permanent alimony which is obviously an incorrect statement in view of the fact that he has himself drafted the agreement for permanent alimony and certified the same to be correct on 11.01.2016 before Mr. P.K. Nanda, Notary Public, Bhubaneswar. Again in paragraph 10 of the additional affidavit dated 02.08.2017, the petitioner has mentioned that he had never executed any document with regard the quantum of permanent alimony which is again an incorrect statement. It is further mentioned that the victim never produced any original document with regard to quantum of permanent alimony before any Court or before the investigating officer which creates serious doubt. When as per the endorsement made in the agreement for permanent alimony, the original agreement was retained by the husband of the victim on 11.01.2016 and a xerox copy of the same was handed over to the victim after ten days by the petitioner as per her 164 Cr.P.C. statement, the averments taken in the additional affidavit in that respect looses all its sanctity. On 19.03.2016 a divorce deed per mutual consent was presented before the Registering Officer, Bhubaneswar in which the victim’s husband was the first party and the victim was the second party and in this divorce deed, nothing was mentioned about the fixation of permanent alimony. According to the victim, this mutual divorce deed was procured illegally without explaining the contents of the deed to her and when she came to know about the same, she filed a petition before the Judge, Family Court, Bhubaneswar vide Civil Proceeding No.330 of 2016 to declare the divorce deed dated 19.03.2016 as fraudulent and void and also with a prayer to restrain her husband from using the divorce deed for any purpose and for recovery of Rs.18,50,000/- from her husband. The learned Judge, Family Court, Bhubaneswar vide judgment and order dated 16.01.2017 in Civil Proceeding No.330 of 2016 declared the divorce deed document dated 19.03.2016 as illegal, void and inoperative and the husband of the victim was also permanently restrained from using the said deed till a decree of divorce dissolving the marriage between the parties is pronounced by a competent Court. However, the prayer of the victim directing her husband for recovery of Rs.18,50,000/-(rupees eighteen lakh fifty thousand) from his salary was not accepted. Most peculiarly the petitioner in his additional affidavit filed before this Court has mentioned in paragraph 11 that the petition filed by the victim before the learned Judge, Family Court, Bhubaneswar in Civil Proceeding No.330 of 2016 was dismissed vide judgment dated 16.01.2017. This is apparently a false statement. The learned counsel for the victim has drawn the attention of this Court to the legal notice issued on behalf of the petitioner on dated 20.05.2016 to the victim by S & S Legal Services wherein it is indicated that she had promised to give 10% of the amount of permanent alimony which she would get and therefore, she has to clear Rs.2,20,000/- (rupees two lakh twenty thousand) within fifteen days of the receipt of the notice and if failed, legal proceeding is to be instituted. It is contended by the learned counsel for the informant that an advocate like the petitioner demanding percentage on the permanent alimony is against professional ethics which is not permissible in law. On 20.03.2018 Miss Sandhyarani Singh, Inspector of Police, Kharvela Nagar police station was present and she submitted that as per the agreement between the parties, a sum of Rs.18,50,000/- (rupees eighteen lakh fifty thousand) is yet to be paid to the victim by her husband. The learned counsel for the petitioner submitted on that day that the balance amount as per agreement has also been paid to Panchu Swain, the father of the victim. Taking note of such submission of the learned counsel for the petitioner, the Inspector in charge of Kharavela Nagar police station was asked to file an affidavit in that respect. The Inspector in charge filed an affidavit which is dated 27.03.2018. In the affidavit she has mentioned that as per the agreement of permanent alimony of Rs.35,00,000/-, the father of the victim Panchu Swain and the victim have received a sum of Rs.16,50,000/- and they have not received the rest of the amount of Rs.18,50,000/- from the husband of the victim. Therefore, the statement which was made by the learned counsel for the petitioner on instruction that the balance amount as per agreement has also been paid to Panchu Swain is also not correct.

  6. In view of the forgoing discussions, it prima facie appears that there is ring of truth in the statement of the victim that her Vakalatnama along with her signatures in stamp papers and blank papers were collected by the petitioner. The conduct of the petitioner who was the advocate for the victim is also highly suspicious. Reflection of permanent alimony of Rs.35,00,000/- (rupees thirty five lakh) instead of Rs.50,00,000/- (rupees fifty lakh) in the agreement for permanent alimony dated 11.01.2016, non-mentioning of the permanent alimony amount in Civil Proceeding No.32 of 2016 filed before the learned Judge, Family Court, Bhubaneswar on the same day, presenting a divorce deed as per mutual consent on dated 19.03.2016 before the Registering Officer, Bhubaneswar without mentioning the permanent alimony amount which was declared to be illegal and void and inoperative by the learned Judge, Family Court, Bhubaneswr in Civil Proceeding No. 330 of 2016 indicates prima facie conspiracy between the petitioner and the husband of the victim. The victim entrusted the petitioner to conduct her case on good faith as he was known to her but the petitioner has breached the trust and acted against the interests of the victim.

  7. The legal profession which is essentially a service-oriented profession is the major component of the justice delivery system. Role of the legal profession in strengthening the administration of justice is unique. The relationship between the lawyer and the client is one of trust and confidence. The client entrusts the whole obligation of handling legal proceedings to an advocate and the advocate has to act with utmost good faith, integrity, fairness and loyalty. Nothing should be done by any member of the legal fraternity which might tend to lessen in any degree the confidence of the public in the fidelity, honesty and integrity of the profession. The conduct of members of the legal profession who do not follow ethics contributes to obstruction of administration of justice. If a legal practitioner fails to understand the significance of the profession and his role in providing access to justice and assisting the citizens in securing their fundamental and other rights then he has no right to continue as a member of this noble profession. Any violation of the principles of professional ethics by an advocate is unfortunate and unacceptable. In Re: Sanjiv Dutta and Ors. reported in (1995) 3 Supreme Court Cases 619, it is held as follows:- “20. The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by its members by their exemplary conduct both in and outside the Court. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilised society. Both as a leading member of the intelligential of the society and as a responsible citizen, the lawyer has to conduct himself as a model for others both in his professional and in his private and public life. The society has a right to expect of him such ideal behavior. It must not be forgotten that the legal profession has always been held in high esteem and its members have played an enviable role in public life. The regard for the legal and judicial systems in this country is in no small measure due to the tiredness role played by the stalwarts in the profession to strengthen them. They took their profession seriously and practised it with dignity, deference and devotion. If the profession is to survive, the judicial system has to be vitalised. No service will be too small in making the system efficient, effective and credible. The casualness and indifference with which some members practise the profession are certainly not calculated to achieve that purpose or to enhance the prestige either of the profession or of the institution they are serving. If people lose confidence in the profession on account of the deviant ways of some of its members, it is not only the profession which will suffer but also the administration of justice as a whole. The present trend unless checked is likely to lead to a stage when the system will be found wrecked from within before it is wrecked from outside. It is for the members of the profession to introspect and take the corrective steps in time and also spare the Courts the unpleasant duty. We say no more.” It prima facie appears that the petitioner has completely betrayed the trust reposed in him by the victim. He has even gone to the extent of claiming percentage on the permanent alimony given to the victim which is illegal. The Bombay High Court in Re: K.L. Gauba reported in A.I.R. 1954 Bombay 478 held that fees conditional on the success of a case and which gives the lawyer an interest in the subject matter tends to undermine the status of the profession. The same has always been condemned as unworthy of the legal profession. If an advocate has interest in success of litigation, he may tend to depart from ethics. In the case of Mr. ‘G’., A Senior Advocate of the Supreme Court reported in (1955) 1 Supreme Court Reporter 490, the Hon’ble Supreme Court held that the claim of an advocate based on a share in the subject matter is a professional misconduct. In case of B. Sunitha -Vrs.- The State of Telengana and Ors. reported in (2018) 69 Orissa Criminal Reports (SC) 400, it is held that claim based on percentage of subject matter in litigation cannot be the basis of a complaint under section 138 of the N.I. Act.

  8. After evaluating the available materials on record with utmost care and caution, considering the nature and gravity of the accusation, availability of the prima facie material to constitute the ingredients of the offences, the manner in which the petitioner betrayed the trust reposed on him by the victim and tried to mislead this Court by filing additional affidavit in giving incorrect and false statement and the possibility of tampering with the evidence, I am not inclined to exercise the discretionary power under section 438 of the Code by granting pre-arrest bail to the petitioner.

Accordingly, the ABLAPL application being devoid of merits, stands dismissed.

………………………..

S. K. Sahoo, J.

Orissa High Court, Cuttack

The 1st May 2018/Pravakar/Sukanta

Hon HC is very concerned that wife’s getting ONLY 84 LAKHS from 498a quash & settlement. ONLY 84 lakhs !

Hon HC says it repeatedly checked with the wife before she agreed to take ONLY 84 lakhs …… before quasing 498a etc cocktail !!

By the way, she filed a 498a cocktail to get the settlement done !!


IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO.1260 OF 2017
1. Nipul Chandravadan Panchal,
Age 40 years, Occ: Architect

2. Mrs. Neela Chandravadan Panchal,
Age 63 years, Occ: Housewife

3. Chandravadan Panchal,
Age 70 years, Occ: No

Residing at 302, Mary Anne Heights, 3rd Road, GPS III, Opp: Cafe-Coffee Day,
Santacruz (East), Mumbai-400 055. …. Petitioners

– Versus –

1. The State of Maharashtra

2. Mrs. Vaishali Nipul Panchal,
Age 36 years, Occ: Service,
R/a Room No.7, Building No.1,
Kangra Bhavan, 232, Dr. Anny
Besent Road, Opp: Potdaar
Hospital, Warli, Mumbai. …. Respondents
Mr. P.R. Yadav i/by Ms Priyanka Dubey for the Petitioners.
Dr. F.R. Shaikh, APP, for the Respondent-State.
Mr. D.V. Saroj for Respondent No.2.
CORAM: S.C. DHARMADHIKARI & PRAKASH D. NAIK, JJ.

DATE : APRIL 07, 2017 ORAL JUDGMENT

(Per Shri S.C. DHARMADHIKARI, J.) :

 

  1. 1. Rule. The respondents waive service. By consent, rule is made returnable forthwith and the petition is taken up for final disposal.
  2. 2. The complainant Vaishali is present in Court. She admits that on 4-6-2015 her statement was recorded by the concerned police station, namely, Vakola Police Station, Mumbai and an FIR was registered. The FIR No.254/2015 alleges offences punishable under Sections 498A, 406, 341, 504, 323 and 34 of the Indian Penal Code.
  3. 3. A request is made by the accused including the husband of the respondent/original complainant to quash this FIR.
  4. 4. The only contention raised in support of this petition is that, this is a fall out of a matrimonial dispute. That discord and dispute led to the husband approaching the Family Court at Bandra, Mumbai with a petition seeking divorce. That petition bearing No.A-1425 of 2015 was later on sought to be converted into a petition and a joint one. The relief was altered to that of a decree of divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955.
  5. 5. Our attention has been invited to the Consent Terms tendered in the Family Court and the altered Consent Terms. Pages 77 to 84 of the paper-book have been perused by us carefully. One of the clauses in the Consent Terms postulates that the sum deposited in the account and mentioned in the Terms cannot be withdrawn by the complainant/wife unless she agrees to quashing of this criminal proceedings.
  6. 6. The nature of this settlement and which prima facie appears to us to be one sided, compelled us to call upon the Advocate appearing for the second respondent/complainant to request her to remain present.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick.
  7. 7. She has remained present and has tendered an affidavit confirming the above arrangement.
  8. 8. She says that she is completely familiar and can speak and equally read and write in English language. She has perused the affidavit. That is drafted as per her instructions and reflects the position correctly.
  9. 9. Though she is not aware of the legal proceedings and provisions, we have sufficiently clarified to her that the affidavit being tendered on record and the prosecution being quashed on the ground that it is purely a private one arising out of a strained matrimonial relationship, then, she would have waived her rights which she has as wife and stated to be voluntarily. We called upon her and repeatedly, whether this arrangement and as reflected in the affidavit is arrived at willingly and her consent is free and unequivocal.
  10. 10. This query was raised by us especially because there are rights of a child, a minor son at the relevant time aged eight years. The custody of this minor son is handed over to the wife. The mother is now going to fend for herself in a City like Mumbai with only a sum of Rs.84 lakhs, that too deposited in the Bank account and as permanent alimony. The same is full and final settlement for all claims of the wife/mother including for permanent alimony. No separate amounts are provided for the child as well.
  11. 11. Upon our limited questioning, she says that she wants an end to all these proceedings and desires to resume her life with her son. She wants nothing more from the in-laws or the husband.
  12. 12. Once she repeatedly says that she is agreeable to the criminal prosecution being quashed and with the above understanding as well, then, we have no alternative but to quash this criminal prosecution which is a fall out of a dispute between the husband and wife, a direct impact after the complaint for domestic violence was lodged, the husband’s petition for Divorce. Then going by this settlement and which is confirmed, we allow the petition. Rule is made absolute in terms of prayer clause (a). No order as to costs.
  13. 13. The consequence being not only the FIR is quashed but even the criminal case and charge-sheet which is filed in the Court of the Metropolitan Magistrate, 71st Court, Bandra, Mumbai.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick.
  14. 14. However, since the complainant/wife says that in the interest of her child as also on account of her lack of faith, trust and love for the husband, the criminal prosecution should be quashed and she is ready for the same, in the event the Family Court’s jurisdiction under Section 26 of the Hindu Marriage Act, 1955 r/w Section 114 of the Code of Civil Procedure, 1908 is invoked for variation or modification of the Terms and particularly the clause for payment, our order passed today quashing the criminal prosecution shall not be an impediment for the Family Court to exercise its jurisdiction and in accordance with law. Clarifying thus, the petition is allowed.

 

(PRAKASH D. NAIK, J.)

(S.C. DHARMADHIKARI, J.)


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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting


28 lakhs before anticipatory bail in dowry case, Marriage WITHOUT kids. Patna HC

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.4864 of 2016

Arising Out of PS.Case No. -39 Year- 2014 Thana -MAHILA P.S. District- SARAN

======================================================

Prashant Kumar Singh @ Sonu, Son of Dilip Kumar Singh Resident of
Sarvamangal E/256 A- Block, Khuntadih Sonari (East), Police Station-
Sonari Jamshedpur, District- East Singhbhum, Jharkhand. …. …. Petitioner/s

Versus

1. The State of Bihar
2. Nutan Kumari Singh, Daughter of Samrendra Kumar Singh, Residing at
Mohalla- Ware House Gudari Bazar Main Road, Police Station- Bhagwan
Bazar, Chapra, District- Saran. …. …. Opposite Party/s

======================================================

Appearance :
For the Petitioner/s : Mr. Satya Prakash
For the Opposite Party/s : Mr. S.Ehteshmuddin(App)

======================================================

CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH

ORAL ORDER

01-09-2016

The petitioner being the husband of the informant is apprehending arrest in a case registered for the offences punishable under Sections 341, 323, 504 and 498A/34 of the Indian Penal Code and 3/4 of the Dowry Prohibition Act.

The basic accusation is of torture for non-fulfillment of the dowry demand.

It is submitted by the learned counsel for the petitioner that the petitioner admits his marriage with the informant having no issue. The petitioner and the informant have now decided to part ways on payment of permanent alimony. A joint compromise petition has been filed stipulating that the petitioner has agreed to make payment of one time settlement amount of 28,00,000/-, out of which the petitioner has brought a bank draft of15,00,000/- vide draft no. 098028 drawn in Union Bank of India, Tin Plate Branch, Jamshedpur. . Counsel for the petitioner is handing over the draft to the counsel for opposite party no.2 for its being handed over to opposite party no.2. Rest of `13,00,000/- will be paid at the time of filing of Matrimonial Suit under Section 13(B) of the Hindu Marriage Act before the learned Principal Judge, Family Court, Chapra. The parties have also agreed to withdraw all the cases lodged against each other.

Learned counsel for the informant has not controverted the contention of counsel for the petitioner and admits that he has received the draft of `15,00,000/-.

It is expected from the learned counsel for the informant to make endorsement of draft of `15,00,000/- on record.

Considering the present stand of the parties, let the above named petitioner be released on anticipatory bail, in the event of arrest or surrender before the learned Court below within a period of 12 weeks from today, on furnishing bail bond of `10,000/– (ten thousand) with two sureties of the like amount each to the satisfaction of the learned A.C.J.M., 1st Saran at Chapra in connection with Saran Mahila P.S. Case No. 39 of 2014, subject to the conditions as laid down under Section 438(2) Cr.P.C.

(Dinesh Kumar Singh, J)

Amrendra/-

U T

=== Select references ===

Section 341 in The Indian Penal Code : 341. Punishment for wrongful restraint.—Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.

Section 323 in The Indian Penal Code : 323. Punishment for voluntarily causing hurt.—Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

Section 504 in The Indian Penal Code : 504. Intentional insult with intent to provoke breach of the peace.—Whoever intentionally insults, and thereby gives provoca­tion to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Section 498A in The Indian Penal Code : [498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means—
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.]

======================

1 plot @ Delhi, 1 at Merrut & a shop to “settle” matri case, where IN LAW ARRESTED & home allegedly cleaned of valuables !

A sad tale of how property and money is continually taken away from men in the name of matrimonial “settlement”.

It’s an open secret that men are dragged to courts and milked of money. they are defamed and dragged into criminal cases

In this case it is alleged that when the FIL was locked up the house was also “cleaned” of all valuables and finally it ends up a “settlement”

=======================

IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL.M.C. 2586/2016 & Crl.M.A. No. 11093/2016

Date of Decision: September 2nd, 2016

MAMTA ….. Petitioner
Through: Mr.A.K.Padhy, Advocate.

versus

STATE & MANGAT RAM ….. Respondents
Through: Ms.Meenakshi Chauhan, APP.
Mr.D.K.Singh and Mr.Pankaj Chauhan, Advocates for R-2.

CORAM: HON’BLE MR. JUSTICE P.S.TEJI

P.S.TEJI, J.

 

  1. The present petition under Section 482 Cr.P.C. has been filed by the petitioner, namely, Sh. Mamta for quashing of FIR No. 337/2014 dated 29.05.2014, under Section 380 IPC registered at Police Station Gandhi Nagar on the basis of Mediation report of the Delhi Mediation Centre, Karkadooma Courts, Delhi in view of the settlement arrived at between petitioner and respondent no.2, namely, Mr. Mangat Ram along with Sh. Vijay Kumar on 24.01.2015.
  2. Learned Additional Public Prosecutor for respondent-State submitted that the respondent No.2, present in the Court has been identified to be the Complainant/First-informant of the FIR in question by SI P.S. Rawat.
  3. The factual matrix of the present case is on the allegation that that the complainant was falsely implicated and held in custody in a FIR by his daughter-in-law. Upon being released from police custody, the complainant requested SHO Gandhi Nagar to send two constables to assist him to his house. Upon reaching his house, the complainant saw that his house lay unlocked and all the articles as listed in his statement to the Police were missing from his house. Thereafter, the police was informed and a complaint was lodged following which, the FIR in question was registered against the accused person. Later, parties arrived at an amicable settlement.
  4. Respondent No.2, present in the Court, submitted that the dispute between the parties has been amicably resolved. It is agreed that respondent no.2’s son, Sh. Vijay Kumar, shall transfer (a) the plot bearing no.169, Pocket-D, sector 4-C, Shatabadi Nagar, Meerut (UP); (b) plot bearing no.136, Pocket-D, sector 4-C, Shatabadi Nagar, Meerut (UP) and (c) Shop no. X/916, Chand Mohalla, Gandhi Nagar, Delhi in favour of the petitioner as well as two daughters namely Disha and Prachi, towards full and final settlement of all the claims arising out of the marriage which includes maintenance (past, present and future) of the petitioner as well of the children, permanent alimony, istridhan etc. It is agreed that Sh. Vijay Kumar shall handover the title documents in respect of shop no. X/916, Chand Mohalla, Gandhi Nagar, Delhi in favour of the petitioner and minor daughters at the time of quashing of the FIR in question before this court, which shall be filed by the concerned party within 15 days after passing of the order of second motion and the concerned party shall co-operate at the time of such quashing. It is further agreed that the petitioner shall be entitled to receive the rent pertaining to shop no. X/916, Chand Mohalla, Gandhi Nagar, Delhi w.e.f. February, 2015 and Sh. Vijay Kumar shall give his no objection, if need arises. It is agreed that the parties shall withdraw the cases filed by them against each other within 15 days after recording of their statements in first motion petition. It is agreed that the custody of the minor daughters shall remain with the petitioner and Sh. Vijay Kumar shall not have any visitation rights and he shall not claim their custody at any point of time. It is agreed that after receipt of the above said properties, the petitioner shall be left with no dispute/claim against Sh. Vijay Kumar or any of his family members in future. It is agreed that if any case/complaint is pending between the parties arising out of their marriage, the same shall be withdrawn by the concerned party. Respondent No.2 affirmed the contents of the aforesaid settlement and of his affidavit dated 18.07.2016 supporting this petition. In the affidavit, he has stated that he has no objection if the FIR in question is quashed. All the disputes and differences have been resolved through mutual consent. Now no dispute with petitioner survives and so, the proceedings arising out of the FIR in question be brought to an end. Statement of the respondent No.2 has been recorded in this regard in which he stated that he has entered into a compromise with the petitioner and has settled all the disputes with her. He further stated that he has no objection if the FIR in question is quashed. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  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 consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceedings or continuation of criminal proceedings would tantamount to abuse of process of law despite settlement and compromise between the victim and the 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 the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceedings.”
  6.  aforesaid dictum stands reiterated by the Apex Court in a 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 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:
    • 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: (i) ends of justice, or (ii) to prevent abuse of the process of any court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.
    • 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.
    • 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.
  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 and stated that the matter has been settled out of his own free will. As the matter has been settled and compromised amicably, so, there would be an extraordinary delay in the process of law if the legal proceedings between the parties are carried on. So, this Court is of the considered opinion that this is a fit case to invoke the jurisdiction under Section 482 Cr.P.C. to prevent the abuse of process of law and to 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 provision of law to secure the ends of justice such as, where the process is abused or misused; where the ends of justice cannot be secured; where the process of law is used for unjust or unlawful object; to avoid the causing of harassment to any person by using the provision of Cr.P.C. or to avoid the delay of the legal process in the delivery of justice. Whereas, the inherent power is not to be exercised to circumvent 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 Apex Court in the case of State of Maharashtra through CBI v. Vikram Anatrai Doshi and Ors. MANU/SC/0842/2014 and in the case of Inder Singh Goswami v. State of Uttaranchal MANU/SC/0808/2009 has observed that powers under Section 482 Cr.P.C. must be exercised sparingly, carefully and with great caution. Only when the Court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the Court if such power is not exercised, Court would quash the proceedings.
  10. It is a well settled law that where the High Court is convinced that the offences are entirely personal in nature and therefore do not affect public peace or tranquility and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, it should not hesitate to quash them. In such cases, pursuing prosecution would be waste of time and energy. Non-compoundable offences are basically an obstruction in entering into compromise. In certain cases, the main offence is compoundable 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 of Section 320 Cr.P.C. would not apply to such offences which are not compoundable, it did not limit or affect the powers under Section 482 Cr.P.C. The Hon’ble Apex Court laid down that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, section 320 Cr.P.C. would not be a bar to the exercise of power of quashing. In the nutshell, the Hon’ble Apex Court justified the exercise of powers under Section 482 Cr.P.C. to quash the proceedings to secure the ends of justice in view of the special facts and circumstances of the case, even where the offences were non- compoundable. In the light of the aforesaid, this Court is of the view that notwithstanding the fact that the offence under Section 380 IPC is a non-compoundable offence, there should be no impediment in quashing the FIR under this section, if the Court is otherwise satisfied that the facts and circumstances of the case so warrant.
  11. In the facts and circumstances of this case and in view of statement made by the respondent no.2, the FIR in question warrants to be put to an end and proceedings emanating thereupon need to be quashed.
  12. Accordingly, this petition is allowed and FIR No. 337/2014 dated 29.05.2014, under Section 380 IPC registered at Police Station Gandhi Nagar registered and the proceedings emanating therefrom are quashed against the petitioner.
  13. This petition is accordingly disposed of.
  14. Application Crl.M.A. No. 11093/2016 is also disposed of.

(P.S.TEJI) JUDGE

SEPTEMBER 02, 2016/dd

 
=========== the case between the husband and wife is given below ==========

IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL.M.C. 2542/2016

Date of Decision: September 1st, 2016

VIJAY KUMAR & ORS.                           ….. Petitioners
Through: Mr.D.K.Singh and Mr.Pankaj Chauhan, Advocates.

versus

STATE & ORS.                                ….. Respondents
Through: Mr.Izhar Ahmad, APP.
Mr.A.K.Padhy, Advocate for R-2.

CORAM:

HON’BLE MR. JUSTICE P.S.TEJI

P.S.TEJI, J.

  1. The present petition under Section 482 Cr.P.C. has been filed by the petitioners, namely, Sh. Vijay Kumar and Sh. Mangat Ram for quashing of FIR No.250/2014 dated 18.04.2014, under Sections 498- A/307/34 IPC registered at Police Station Gandhi Nagar on the basis of the Mediation Report of the Delhi Mediation Centre, Karkardooma Courts, Delhi executed between petitioner no. 1 and respondent no.2, namely, Smt. Mamta on 24.01.2015.
  2. Learned Additional Public Prosecutor for respondent-State submitted that the respondent No.2, present in the Court has been identified to be the complainant/first-informant of the FIR in question by her counsel.

  3. The factual matrix of the present case is that the marriage was solemnized between the petitioner no.1 and respondent no.2 on 08.05.1998 according to Hindu rites and customs. Out of the said wedlock, two female children were born. It is the case of the complainant that the accused persons used to harass and beat her. The accused persons were not happy with the complainant as she gave birth to two daughters and not sons. Allegedly, the accused persons poured kerosene oil upon the complainant and tried to set her ablaze. Thereafter, the complainant got lodged the complaint following which the FIR in question was registered against the petitioners. During the pendency of the proceedings, the matter was settled between the accused persons and respondent no.2. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  4. Respondent No.2 present in the Court, submitted that the dispute between the parties has been amicably resolved. As per the settlement, it is agreed that the parties shall dissolve their marriage by way of mutual consent. It is agreed that petitioner no.1 shall transfer (a) the plot bearing no.169, Pocket-D, sector 4-C, Shatabadi Nagar, Meerut (UP); (b) plot bearing no.136, Pocket-D, sector 4-C, Shatabadi Nagar, Meerut (UP) and (c) Shop no. X/916, Chand Mohalla, Gandhi Nagar, Delhi in favour of respondent no.2 as well as two daughters namely Disha and Prachi, towards full and final settlement of all the claims arising out of the marriage which includes maintenance (past, present and future) of respondent no.2 as well of the children, permanent alimony, istridhan etc. It is agreed that petitioner no.1 shall handover the title documents in respect of shop no. X/916, Chand Mohalla, Gandhi Nagar, Delhi in favour of respondent no.2 and minor daughters at the time of quashing of the FIR in question before this court, which shall be filed by the concerned party within 15 days after passing of the order of second motion and the concerned party shall co-operate at the time of such quashing. It is further agreed that respondent no.2 shall be entitled to receive the rent pertaining to shop no. X/916, Chand Mohalla, Gandhi Nagar, Delhi w.e.f. February, 2015 and petitioner no.1 shall give his no objection, if need arises. It is agreed that the parties shall withdraw the cases filed by them against each other within 15 days after recording of their statements in first motion petition. It is agreed that the custody of the minor daughters shall remain with respondent no.2 and petitioner no.1 shall not any visitation right and he shall not claim their custody at any point of time. It is agreed that after receipt of the above said properties, respondent no.2 shall be left with no dispute/claim against petitioner no.1 or any of his family members in future. It is agreed that if any case/complaint is pending between the parties arising out of their marriage, the same shall be withdrawn by the concerned party. Respondent No.2 affirmed the contents of the aforesaid settlement and of her affidavit dated 14.07.2016 supporting this petition. In the affidavit, she has stated that she has no objection if the FIR in question is quashed. All the disputes and differences have been resolved through mutual consent. Now no dispute with petitioners survives and so, the proceedings arising out of the FIR in question be brought to an end. Statement of the respondent no. 2 has been recorded in this regard in which she stated that she has entered into a compromise with the petitioners and has settled all the disputes with them. 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 consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceedings or continuation of criminal proceedings would tantamount to abuse of process of law despite settlement and compromise between the victim and the 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 the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceedings.”

  6. The aforesaid dictum stands reiterated by the Apex Court in a 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 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: 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:     (i) ends of justice, or     (ii) to prevent abuse of the process of any court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.     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. 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.

  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 agrees to the quashing of the FIR in question without any threat or coercion or undue influence and has stated that the matter has been settled out of her own free will. As the matter has been settled and compromised amicably, so, there would be an extraordinary delay in the process of law if the legal proceedings between the parties are carried on. So, this Court is of the considered opinion that this is a fit case to invoke the jurisdiction under Section 482 Cr.P.C. to prevent the abuse of process of law and to 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 provision of law to secure the ends of justice such as, where the process is abused or misused; where the ends of justice cannot be secured; where the process of law is used for unjust or unlawful object; to avoid the causing of harassment to any person by using the provision of Cr.P.C. or to avoid the delay of the legal process in the delivery of justice. Whereas, the inherent power is not to be exercised to circumvent 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 Apex Court in the case of State of Maharashtra through CBI v. Vikram Anatrai Doshi and Ors. MANU/SC/0842/2014 and in the case of Inder Singh Goswami v. State of Uttaranchal MANU/SC/0808/2009 has observed that powers under Section 482 Cr.P.C. must be exercised sparingly, carefully and with great caution. Only when the Court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the Court if such power is not exercised, Court would quash the proceedings.

  10. It is a well settled law that where the High Court is convinced that the offences are entirely personal in nature and therefore do not affect public peace or tranquility and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, it should not hesitate to quash them. In such cases, pursuing prosecution would be waste of time and energy. Non-compoundable offences are basically an obstruction in entering into compromise. In certain cases, the main offence is compoundable 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 of Section 320 Cr.P.C. would not apply to such offences which are not compoundable, it did not limit or affect the powers under Section 482 Cr.P.C. The Hon’ble Apex Court laid down that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, section 320 Cr.P.C. would not be a bar to the exercise of power of quashing. In the nutshell, the Hon’ble Apex Court justified the exercise of powers under Section 482 Cr.P.C. to quash the proceedings to secure the ends of justice in view of the special facts and circumstances of the case, even where the offences were non- compoundable. In the light of the aforesaid, this Court is of the view that notwithstanding the fact the offences under Sections 498A/307 IPC are non-compoundable offences, there should be no impediment in quashing the FIR under these sections, if the Court is otherwise satisfied that the facts and circumstances of the case so warrant.

  11. The Courts in India are now normally taking the view that endeavour should be taken to promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs such as, matrimonial disputes between the couple or/and between the wife and her in-laws. India being a vast country naturally has large number of married persons resulting into high numbers of matrimonial disputes due to differences in temperament, life-styles, opinions, thoughts etc. between such couples, due to which majority is coming to the Court to get redressal. In its 59th report, the Law Commission of India had emphasized that while dealing with disputes concerning the family, the Court ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement before the commencement of the trial. Further it is also the constitutional mandate for speedy disposal of such disputes and to grant quick justice to the litigants. But, our Courts are already over burdened due to pendency of large number of cases because of which it becomes difficult for speedy disposal of matrimonial disputes alone. As the matrimonial disputes are mainly between the husband and the wife and personal matters are involved in such disputes, so, it requires conciliatory procedure to bring a settlement between them. Nowadays, mediation has played a very important role in settling the disputes, especially, matrimonial disputes and has yielded good results. The Court must exercise its inherent power under Section 482 Cr.P.C. to put an end to the matrimonial litigations at the earliest so that the parties can live peacefully.

  12. In the present case, apart from offence under Section 498A IPC, it is also alleged against the petitioners that they also committed the offence under Section 307 IPC. The complainant in her statement made to the police had alleged that kerosene oil was poured on her and the accused persons tried to set her ablaze. Apparently, there is no bodily injury on the person of the complainant. In the present case, the penal Section 307 IPC has been added on the basis of circumstances and not on the basis of any grievous bodily injury. As per the ratio of judgment in the case of Narinder Singh (supra), while accepting the compromise in cases under Section 307 IPC, the High Court should go by the nature of injury sustained, portion of bodies where the injuries were inflicted and the nature of weapons used. If on the basis of circumstances, if the High Court is of the opinion that provisions of Section 307 IPC were unnecessary included, the Court can accept the settlement between the parties.

  13. In view of the law laid down in the case of Narinder Singh (supra) and the fact that no bodily injury was sustained by the complainant and section 307 IPC was added in the present case only on the basis of circumstances and not on the basis of any bodily injury, this Court is of the considered opinion that it is a fit case to accept the settlement between the parties.

  14. Since the subject matter of this FIR is essentially matrimonial, which now stands mutually and amicably settled between the parties, therefore, continuance of proceedings arising out of the FIR in question would be an exercise in futility and is a fit case for this Court to exercise its inherent jurisdiction.

  15. In the facts and circumstances of this case, in view of statement made by the respondent No.2 and the compromise arrived at between the parties, the FIR in question warrants to be put to an end and proceedings emanating thereupon need to be quashed.

  16. Accordingly, this petition is allowed and FIR No.250/2014 dated 18.04.2014, under Sections 498-A/307/34 IPC registered at Police Station Gandhi Nagar and the proceedings emanating therefrom are quashed against the petitioners.

  17. This petition is accordingly disposed of.

(P.S.TEJI) JUDGE SEPTEMBER 01, 2016 dd

 

 

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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting


Patna HC : 15 Lakhs for a bail! How 498A bail proceedings go for mediation & end in alimony payment!

  • Husband files matrimonial suit on 14.05.2013 for dissolution of marriage
  • Wife appears on 18.02.2014 and thereafter a complaint is filed on 11.03.2014 !!, for offenses punishable u/s 498A of IPC
  • Husband apprehending arrest in this 498a case seeks bail.
  • He is granted bail on the condition of payment of Rs. 15 Lakhs as alimony !
  • This is JUST at the time of bail, meaning obviously the 498a case has NOT proceeded to evidence, inquiry or trial!.
  • Also, If you wonder as to how alimony is a pre condition for a bail, how alimony is decided in a criminal case, let me tell you that makes it two of us wondering on the state of marriages in India!
  • However numerous cases are coming to fore where mere bail applications are converted to alimony payments and / or settlement negotiations.
  • Obviously, this happens before the dowry case is decided on merits, though alimony is to be decided by a civil court on different parameters, and criminal courts handling bail are NOT expected to decide alimony !!
  • Under the fear of arrest, under fear of loosing their jobs, men are forced to pay thru their nose !!

 


IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.51240 of 2014
Arising Out of PS.Case No. -643 Year- 2014 Thana -MUZFFARPUR COMPLAINT CASE
District-MUZAFFARPUR


  • Dr. Mukesh Kumar S/o Yadunandan Prasad R/o Mohalla Friends Colony,
    Road No. 3, P.S. Rajiv Nagar, District Patna …. …. Petitioner/s

Versus

  • 1. The State of Bihar
  • 2. Priyadarshini Wife of Dr Mukesh Kumar, D/o Sri Umesh Kumar R/o
    Mohalla Bahal Khana Road, Chhoti Kalyani, P.S.Town, P.O. Ramna,
    District Muzaffarpur at present Amudh Vinayak medical College, 1st
    year P.G. Dept of Radiology Cuddalore, Main Road, Edumbakka,
    Pudduchery 607402 … …. Opposite Party/s

Appearance :
For the Petitioner/s : Mr. Rudal Prasad
For the Opposite Party/s : Mr. P.K.Choursiya(App)


CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH

ORAL ORDER

05/ 26-06-2015

Heard learned counsels for the petitioner and the State.

The petitioner being the husband of the complainant is apprehending his arrest in a complaint case wherein processes have been directed to be issued after cognizance being taken for the offences punishable under Section 498A of the Indian Penal Code.

The basic accusation is of torture.

The marriage between the petitioner and the complainant being performed on 18.04.2012 having no issue is admitted fact. Petitioner and the complainant are present.

The petitioner filed Matrimonial Suit No. 382 of 2013 on 14.05.2013 for dissolution of the marriage in which complainant appeared 18.02.2014 and thereafter the present complaint has been filed on 11.03.2014. The conciliation also not appear to be feasible at present. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Both the petitioner and the complainant agree to part ways on payment of permanent alimony of Rs.15,00,000/- (Fifteen lakhs) within a period of one year. The offer of the petitioner to make such payment is acceptable to the complainant who is present in the Court.

Considering the present stand of the parties, let the above named petitioner be released on anticipatory bail in the event of his arrest or surrender before the learned court below within a period of twelve weeks from today, on furnishing bail bonds of Rs.10,000/- (Ten thousand) with two sureties of the like amount each to the satisfaction of learned Chief Judicial Magistrate, Muzaffarpur in connection with Complaint Case No. 643 of 2014, subject to the conditions as laid down under Section 438(2) of the Cr.P.C.

The bail of the petitioner will be accepted on deposit of Rs.3,00,000/- (Three lakhs) at the time of executing of bail bond and the rest amount of Rs.12,00,000/- (Twelve lakhs) in three-four monthly installments of four lakhs each. The same will be deposited before the learned court below through bank draft. The first installment of three lakhs will be released in favour of the complainant on filing an application in Matrimonial Suit No. 382 of 2013 by both the parties under Section 13B of the Hindu Marriage Act. It is expected from learned Principal Judge, Family Court, Patna to dispose of the Matrimonial Suit No. 382 of 2013 expeditiously.

The complainant will also file an appropriate application in Complaint Case No. 643 of 2014 before the learned court below to the effect that the issue has been reconciled between the parties and it is expected from learned Chief Judicial Magistrate, Muzaffarpur to dispose of Complaint Case No. 643 of 2014 expeditiously.

The last three installments shall be deposited by the petitioner through bank draft before the learned court below within the time frame stipulated above which will be released to the complainant within one week of passing of the decree in matrimonial suit. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

(Dinesh Kumar Singh, J) DKS/-

U T

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