Criminal Writ Petition No. 3088 of 2011

24th April, 2012

Petitioner Counsel: Ms. DEEPTI CHAND
Respondent Counsel: Mr. J.P. KHARGE, Mr. GYANESH PRASAD SHARMA

JUDGMENT

JUDGMENT :- Rule. By consent, rule is made returnable forthwith.

2. Mr.Kharge, learned APP waives service of notice on respondent no.1-State. Mr.Gyanesh Prasad Sharma-respondent no.3, who is present in person, waives service for himself and also for and on behalf of respondent nos.2 and 4. He states that he has been authorized by respondent nos.2 and 4 to represent them in the present proceedings.

By consent, heard finally.

3. By this petition under Article 227 of Constitution of India and under Section 482 of the Code of Criminal Procedure Code, the petitioner seeks that the proceedings vide C.C.No.879/PW/2010, pending before Metropolitan Magistrate, Railway Mobile Court, Andheri, Mumbai, be quashed.

4. The petitioner is the original first informant. On her report lodged with the police, a case in respect of offences punishable under sections 406 and 498-A of the Indian Penal Code read with Section 34 of the IPC, came to be registered against respondent nos.2, 3 and 4. Respondent no.2 is the husband of the petitioner, while respondent nos.3 and 4 are the father and mother, respectively, of the petitioner's husband. During the pendency of the said criminal case in the Court of Metropolitan Magistrate, the marriage between the petitioner and respondent no.2 was dissolved by a consent decree passed by the Family Court, in the petition for divorce filed by the petitioner's husband. This took place on 15.12.2010.

5. The consent decree was passed on the basis of a 'compromise agreement' entered into by and between the parties with the assistance of a qualified mediator. One of the terms of the compromise between the parties was 'withdrawal of the criminal case pending before the Metropolitan Magistrate i.e. Case No.879/PW/2010.'

6. Based on this compromise, an application was made before the learned Magistrate seeking permission to compound the offences in question. The Magistrate, by his order dated 4.07.2011, granted permission to compound the offence punishable under Section 406 of the IPC. With regard of the offence punishable under Section 498-A, however, the learned Magistrate observed that it was non-compoundable. He therefore directed that the case shall be proceeded further against respondent nos.2, 3 and 4 (accused before the Magistrate) with respect to the offence punishable under Section 498A of the IPC.

7. It is, under these circumstances, the constitutional and inherent jurisdiction of this Court is invoked saying that it would be in the interest of justice to quash the proceedings of the said case.

8. I have carefully considered the matter.

9. The constitutional and the inherent powers vested in this Court are wide. The inherent powers available to this Court are to be used for securing the ends of justice or to prevent the abuse of the process of any Court. The inherent power vested in this Court can, in a given case, be used, for quashing a criminal prosecution on the basis of an agreement or a compromise or settlement arrived at between the parties. Undoubtedly, the offences which are non-compoundable, cannot be permitted to be compounded by the subordinate Courts, but the powers available to this Court to quash criminal prosecution, in a given case, has nothing to do with the classification of offences as compoundable and non-compoundable. Thus, there is no bar or prohibition for exercising the inherent power of this Court to quash a criminal prosecution in a given case, based on the understanding arrived at between the parties. It is true that, simply because, the matter has been amicably settled between the parties, this Court would not quash the criminal prosecution, which is in respect of the non-compoundable offences. The legislative policy of not permitting some offences to be compounded, ought to be kept in mind by this Court, when a prayer of quashing of prosecution involving non-compoundable offences is advanced on the claim that the matter has been settled between the parties.

However, as aforesaid, since the inherent powers are too wide, if the Court, guided by the well settled principles and considerations and for securing the ends of justice, thinks it fit that a prosecution in a given case needs to be quashed, then the factor that the offences involved are non-compoundable, cannot be an impediment in exercise of such powers. Thus, the legal position seems to be that merely because the parties have chosen to settle their disputes amicably, this Court would not, on their prayer, quash criminal prosecution, particularly, when it relates to non-compoundable offences. However, that the offences involved are non-compoundable, cannot be an impediment in the exercise of the inherent power for quashing a criminal prosecution, if otherwise, there is a case for exercise of such power. Thus, it would depend on the facts of each case, whether the criminal prosecution should be quashed based on an agreement, settlement or understanding arrived at between the parties.

10. In the present case, I find that an elaborate compromise agreement was drawn by and between the parties. The withdrawal of the prosecution of the said criminal case was a significant and prominent condition for arriving at the settlement. It is based on this settlement, that the marriage came to be dissolved by the consent decree. If a significant and important term of the settlement which resulted in the dissolution of marriage by a consent decree, is not given effect to, it would create several complications. If such a significant and prominent condition for arriving at the settlement viz. withdrawal of the said criminal case, is not given effect to, while allowing the settlement, inter-alia, based on such a condition / consideration to have full effect, then it will not be proper.

11. The State does not offer any resistance to the prayer for quashing the proceedings.

12. Considering all the aforesaid aspects, it would be proper that the compromise arrived at between the parties be given an effect to by quashing the proceedings, as prayed for. Directing or insisting on the continuation of such proceedings would not be in the interest of justice. Rather, forcing the parties to proceed with the said matter, under these circumstances, would amount to the abuse of the process of law.

13. The petition is, therefore, allowed in terms of prayer (a).

Rule is made absolute accordingly.

Petition allowed.