Azad Mohammad and 4 Others v. State of U.P. and Another

Court No. - 90 Case :- APPLICATION U/S 482 No. - 11353 of 2023 Applicant :- Azad Mohammad And 4 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Tufail Hasan Counsel for Opposite Party :- G.A.,Atul Kumar Singh,M.Z. Hoda Hon'ble Dinesh Pathak,J.

¶1Heard learned counsel for the applicants, learned opposite party No. 2, learned AGA and perused the record.

¶2The present applicants have invoked the inherent power of this Court under Section 482 CrPC beseeching the quashing of cognizance/summoning order dated 22.10.2021, charge sheet dated

17.9.2021 as well as entire criminal proceeding of Case No. 1418 of 2021 (State Vs. Azad Mohammad and others) arising out of the Case Crime No. 6 of 2021, under Sections 498A, 323, 504 IPC, 3/4 Dowry Prohibition Act, Police Station Mahila Thana, District Aligarh pending before Judicial Magistrate-II, District Aligarh on the basis of compromise.

¶4Instant matter is arising out of matrimonial discord. Having been aggrieved with the behaviour of her in-laws, Opposite Party No. 2 has lodged an FIR, being Case Crime No. 6 of 2021 levelling allegation of harassment and cruelty for demand of dowry and molestation etc. During pendency of the criminal proceedings, both the parties have arrived at compromise. Having considered the amicable settlement between the parties, this Court, vide order dated 19.4.2023, has referred the matter before the mediation centre to explore the possibility of reconciliation between them. For ready reference, the order dated 19.4.2023 is quoted hereinbelow:- "This is an application under Section 482 of the Code of Criminal Procedure, 1973 seeking to quash the proceedings of Case No. 1418 of 2021, State v. Azad Mohammad and others (arising out of Case Crime No. 6 of 2021) under Sections 498-A, 323, 504 of the Indian Penal Code, 1860 and Section 3/4 of the Dowry Prohibition Act, 1961, Police Station Mahila Thana, District Aligarh, pending in the Court of the Judicial Magistrate-II, Aligarh. Without going into the merits of the applicants' case at this stage, since the matter is a matrimonial dispute between the applicant no. 1 and opposite party no. 2, who are husband and wife, it is desirable that the parties be required to attempt a reconciliation of their differences with the assistance of Allahabad High Court Mediation and Conciliation Centre. Learned Counsel for the applicants is in agreement with the aforesaid course of action. It is directed that applicants shall deposit a sum of Rs. 20,000/- within three weeks from today with the Mediation Centre of this Court, of which Rs. 8,000/- would be paid to the opposite party no. 2 for appearance before the Mediation Centre. Upon deposit aforesaid being made good, the Mediation Centre shall issue notice to both the parties, fixing an early date for appearance and further proceedings before the Centre. The Mediation Centre shall submit their report within two months from the date parties are required to first appear before the Centre. Thereafter the case shall be listed before the Court on 14.07.2023. Till the next date of listing, the further proceedings in Case No. 1418 of 2021, State v. Azad Mohammad and others (arising out of Case Crime No. 6 of 2021) under Sections 498-A, 323, 504 of the Indian Penal Code, 1860 and Section 3/4 of the Dowry Prohibition Act, 1961, Police Station Mahila Thana, District Aligarh, pending in the Court of the Judicial Magistrate-II, Aligarh shall remain stayed. In case, the requisites are not deposited as directed, the interim order granted above shall automatically stand vacated."

¶5On sincere efforts being made in the mediation centre, both the parties have entered into a settlement agreement dated 6.10.2023. As per the settlement agreement, both the parties are separated through the process of Talaq-e-Ahsan on 6.10.2023 and finally one time settlement amount i.e. Rs. 3,00,000/- has been given to the wife. For ready reference, the settlement/agreement dated

6.10.2023 is quoted hereinbelow: "This SETTLEMENT AGREEMENT entered into on 06.10.2023, between Azad Mohammad (Applicant No.1-Husband) and Smt. Atika Sheikh (O.P. No.2-Wife). WHEREAS

¶1Disputes and differences had arisen between the Parties hereto Application U/s 482 No. 11353 of 2023 as filed before the Hon'ble High Court.

¶2The matter was referred to mediation/conciliation vide order dated

19.04.2023 passed by bench of Hon'ble J. J. Munir, J.

¶3The parties agreed that Mr. Rajesh Kumar Pandey, Advocate would act as their Conciliator/Mediator, in the Mediation Case No. 2667/2023.

¶4Several Joint and separate meetings were held during the process of Conciliation/Mediation on 12.07.2023, 21.07.2023, 25.08.2023, 22.09.2023 and 06.10.2023 and the parties have with the assistance of the Mediator/Conciliater voluntarily arrived at an amicable solution resolving the above-mentioned disputes and differences.

¶5The marriage of Azad Mohammad (Applicant No.1-Husband) and Smt. Atika Sheikh (O.P. No.2-Wife) was solemnized on 29.10.2019. Out of aforesaid wedlock, parties have no issue. The parties have been living separately since 19.02.2020.

¶6The parties hereto confirm and declare that they have voluntarily and of their own free will arrived at this Settlement Agreement in the presence of the Mediators Conciliators.

¶7The following settlement has been arrived at between the Parties hereto:-

(a) That the parties have decided to take Talaq and in this regard, the O.P. No.2 has filed a divorce petition under Section 2 of Muslim Act, 1939, bearing Case No. 1690 of 2023 before Principal Judge, Family Court, Aligarh. The certified copy of the aforesaid divorce petition is being annexed to this settlement for kind perusal of the Hon'ble Court.

(b) That it has been agreed between the parties that the Applicant No.1-Husband shall pay one time settlement amount of Rs.3,00,000/- (Rupees Three Lakh only) which includes the amount of Mehar, Iddat, Muddat, maintenance and other financial claims of wife by way of demand draft in her favour.

(e) That today i.e. 06.10.2023, the Applicant No.1-husband has handed over a demand draft bearing No. 508923 dated 03.10.2023 for Rs.3,00,000/- (Rupees Three Lakh only) drawn on ICICI Bank in favour of Atikah Sheikh (wife) to the O.P. No.2 and she has acknowledged the receipt of the same.

(d)That wife has informed that she has obtained all her degree/Certificates from her husband, secondly, the dispute of exchange of ornaments have also been settled between the parties. Hence, there is no dispute regarding aforesaid matters.

(e) That it has also been agreed between the parties that in view of the above, all civil and criminal cases filed by them against each other regarding present matrimonial dispute shall be withdrawn by the parties concerned by taking appropriate steps before the Court/authority concerned, except divorce Petition bearing Case No. 1690 of 2023 before Principal Judge, Family Court, Aligarh.

(f) That Talaq-e-Ahsan has been announced by husband-Azad Mohammad to his wife-Smt. Atika Sheikh on 06.10.2023 and the value of Mehar of Rs. 10,000/- has been given to her which has been acknowledged by her. (g) That the parties will not file any fresh case against each other in respect of this matrimonial dispute. They have no claim against each other in future also.

(h) That it has been agreed between the parties that they shall not violate the terms and conditions of this settlement otherwise the aggrieved party will be free to take legal recourse

8.-By signing this Agreement the Parties hereto state that the Application U/s 482 No. 11353 of 2023 and all disputes and differences in this regard have been amicably settled by the Parties hereto through the Conciliation/Mediation."

¶7Learned counsel for the applicants submits that in the above eventuality of the settlement agreement took place between the parties, the instant application may be allowed and the criminal proceeding initiated against the present applicants may be quashed. It is further submitted that both the parties have buried the hatchet and there is no grudges between them against each other. To quash the cognizance order as well as criminal proceeding, learned counsel for the applicant has relied upon the following judgments of the Hon'ble Apex Court :-

(i) B.S.Joshi & Others Vs. State of Haryana & Others; (2003) 4 SCC 675.

(ii) Nikhil Merchant Vs. Central Bureau of Investigation;

(2008) 9 SCC 667.

(iii) Manoj Sharma Vs. State & Others; (2008) 16 SCC 1.

(iv) Gyan Singh Vs. State of Punjab (2012) 10 SCC 303.

(v) Narindra Singh & Others Vs. State of Punjab (2014) 6 SCC

466.

¶8In a recent judgment passed by a Three Judges' Bench of the Apex Court in the Case of Parbatbhai Aahir alias Parbatbhai Bhimsinhbhai Karmur and others Vs. State of Gujarat and another, reported in AIR 2017 SC 4843, Hon'ble Supreme Court has summarized the ratio of all the cases decided earlier with respect to quashing of F.I.R./charge-sheet/criminal proceeding on the ground of settlement between the parties and expounded the ten categories in which application under Section 482 could be entertained for quashing the F.I.R./charge-sheet/criminal proceeding on the basis of compromise. Para no. 15 of the said judgement summarizing the proposition in this respect is reproduced below:- "15. (i) Section 482 preserves the inherent power of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;

(ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.

(iii) In forming an opinion whether a criminal proceeding or compliant should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;

(iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised;(i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;

(v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;

(vi) In exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot approximately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;

(vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing insofar as the exercise of the inherent power to quash is concerned;

(viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;

(ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and

(x) There is yet an exception to the principle set out in propositions (viii) and

(ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance."

¶9Learned AGA has no objection, in case, the instant application is decided by this Court on the basis of settlement agreement took place between the parties.

¶10Learned counsel for the opposite party No. 2 has nodded the factum of the settlement agreement entered into between the parties and he has no objection, if the instant application is decided finally on the basis of the said settlement agreement. He also submits that both the parties have voluntarily entered into settlement agreement and opposite party no. 2 does not wants to prosecute the present case against the applicants any more as no dispute remains between the parties.

¶11Having considered the settlement agreement and with the assistance of the aforesaid guidelines, keeping in view the nature of gravity and severity of the offence, which are more particular in private dispute, it is deemed proper that in order to meet the ends of justice, the present proceeding should be quashed. In result, dispute between the parties will put to an end, peace will be resorted and relationship between them will be smooth. No useful purpose would be served to keep the present matter pending inasmuch as both the parties have buried the hatchet and as the time passes, it will be difficult to prove the guilt of the accused. The continuation of criminal proceeding would cause oppression and prejudice.

¶12In view of the aforesaid pronouncements of the Hon'ble Apex Court and in the light of the settlement agreement arrived at between the parties, the present application under Section 482 Cr.P.C. is hereby allowed. The entire criminal proceeding of the aforementioned case is hereby quashed.

¶13Let a copy of the order be transmitted to the concerned lower Court for necessary action. Order Date :- 22.11.2023 vinay High Court of Judicature at Allahabad