Bomyir Bam Nani and Anr v. The State of Ap

ORDER Date : 02-08-2023 Heard Mr. K. Mibang, learned counsel for the petitioners. Also heard Ms. L. Hage, learned Additional Public Prosecutor representing the State respondent.

¶2This is an application filed under Section 482 of the Code of Criminal Procedure, 1973, praying for quashing and setting aside of the FIR dated

30.11.2016, in connection with GR.No.818/2016, arising out of the Itanagar W.P.S Case No.115/2016, registered under Section 498(A)/323 of IPC and subsequent Charge-Sheet No.46/2017 dated 30.05.2017.

¶3I have given my anxious consideration to the submissions at the Bar, with circumspection.

¶4It is stated that both the petitioners are husband and wife, and out of their wedlock, they have two children. On 30.11.2016 an FIR was lodged by the petitioner No.1/wife against the petitioner No.2/husband due to some misunderstanding, and family disputes between them. However, they have settled their differences considering the future of their children on the intervention of both the parties family members and at present they are living happily as a husband and wife.

¶5During the investigation, it was revealed that the matter to be a matrimonial dispute and filed the charge-sheet under Section 498(A)/323 of IPC and forwarded the same before the Court of learned Judicial Magistrate First Page No.# 3/7 Class, Yupia for trial.

¶6The learned counsel for the petitioners, Mr. K. Mibang has submitted the petitioner No.1 had lodged the FIR only to teach a lesson to him and at present the misunderstanding has been settled amicably between the parties, and also executed a Deed of Settlement dated 16.06.2023, before the Court of learned Executive Magistrate, Yupia. The settlement between the parties has been arrived because of the intervention of the family members and relatives of the parties.

¶7He also submitted that the petitioner No.1 is not at all interested to proceed with the case, however, Section 498(A) of IPC is non-compoundable offence and the learned Trial Court is not in a position to consider the same in terms of Section 320 of Cr.P.C. Thus, this application has been preferred jointly by both the petitioners praying for quashing and setting aside of the same.

¶8In this context, Ms. L. Hage, learned Additional Public Prosecutor has submitted that the matter is regarding matrimonial dispute, thus, she raised no objection on the prayer made by the petitioners; as the matter has been settled amicably between the parties. On the other hand, it is also seen that the petitioner No.1 is not at all willing to proceed with this case and thus, it is an admitted fact that both the parties have entered into amicable settlement with some terms and conditions and thus there is remote chance of conviction even if the proceeding is continued. Page No.# 4/7

¶9Further, the learned counsel for the petitioners has relied on the decision of the Hon'ble Supreme Court in the case of State of Madhya Pradesh-vs-Laxmi Narayan; reported in (2019) 5 SCC 688, wherein, it has been observed as under:- "11.3 In the case of Narinder Singh vs. State of Punjab (2014) 6 SCC 466, after considering the decision in the case of Gian Singh (supra), in paragraph 29, this Court summed up 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 Page No.# 5/7 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.

29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.

29.6. Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore are to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section

307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used, etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship.

29.7. While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge-sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after Page No.# 6/7 the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime." 9.4 In the case of Parbatbhai Aahir (supra), again this Court has had an occasion to consider whether the High Court can quash the FIR/complaint/criminal proceedings, in exercise of the inherent jurisdiction under Section 482 Cr.P.C. Considering a catena of decisions of this Court on the point, this Court summarised the following propositions"

¶10In the instant case, both the parties have amicably settled their disputes, therefore, possibility of conviction appears to be remote and bleak and the disputes between the parties are predominantly private in nature and further proceeding will be an abuse of the process of the Court.

¶11So considering the view of the decision made by the Hon'ble Apex Court in the case of Laxmi Narayan (Supra) as well as the fact that the matter has been compromised between the parties, I am of the view that is a fit case where the provision under Section 482 Cr.P.C. can be invoked.

¶12In view of the foregoing discussions, the FIR, dated 30.11.2016 registered as ITA W.P.S Case No.115/2016 under Section 498(A) of IPC and the proceedings corresponding GR.No.818/2016 as well as chargesheet No.46/2017 dated 30.05.2017, pending before Court of learned Judicial Magistrate First Class, Yupia, is hereby set aside and quashed. Page No.# 7/7

¶13In terms of the above, this Criminal Petition stands allowed and disposed of. JUDGE Comparing Assistant

Page No.# 1/7 GAHC040008112023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : Crl.Petn./107/2023 Bomyir Bam Nani and Anr. D/o Harbom Bam, Resident of D Sector, Naharlagun, PO/PS Naharlagun, Dist. Papum Pare, Arunachal Pradesh. Phone No. 918787637220 2: Nani Tagia Age: Occupation VERSUS THE STATE OF AP Represented by Public Prosecutor. Advocate for the Petitioner : Vijay Jamoh Advocate for the Respondent : P P of AP Page No.# 2/7 BEFORE HONBLE MRS. JUSTICE MITALI THAKURIA