Smti Femak Mangkya and Anr v. The State of Ap

ORDER

24.07.2023

Heard Mr. T. Lamgu, learned counsel for the petitioner. Also heard Mr. J. Tsering, learned Public Prosecutor representing the State respondent.

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

24.07.2022, in connection with GR.No.606/2022, which is pending against the present petitioner No. 2 before the Court of learned Chief Judicial Magistrate, Yupia, arising out of the ITA WPS Case No.87/2022, under Section 498(A) of IPC and subsequent P.S. Charge Sheet No.08/2023 dated 23.02.2023.

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

¶4The brief facts leading to the filing of the present criminal petition is that, the petitioner No.1 is 2nd wife of the petitioner No.2 and they got married in the month of December' 2021 as well as their marriage has been socially recognized. The petitioner No.1 stated that both the petitioner No.2 and his 1st wife insisted her to accept the marriage proposal as a second wife. Thereafter, the petitioner No.1 has accepted the marriage proposal of the petitioner No.2 and got married in presence of their families and relatives. On 19.03.2022 the 1st wife of the petitioner No.2 asked a loan amount of Rs.10,000/-(Rupees Ten thousand) only through What's App message to the petitioner No.1, however she denied to give money to her, then, both the petitioner No.2 and his 1st wife Page No.# 3/7 started torturing her and also denied to keep the petitioner No.1 as his 2nd wife and out of anger the petitioner No.1 lodged an FIR against the petitioner No.2, and the same has been registered by arresting authority as ITA WPS Case No.87/2022, under Section 376 of IPC.

¶5During the investigation, it was revealed that the petitioners are husband and wife, and found that the matter to be a matrimonial dispute as such the investigation Officer has strike out Section 376 and filed the charge-sheet under Section 498(A) of IPC and forwarded the same before the learned Chief Judicial Magistrate, Yupia for trial.

¶6The petitioner No. 1 was willing to withdraw the FIR but as the offences are non-compoundable in nature, the petitioner Nos. 1 & 2 have jointly filed this application for quashing of the entire proceeding pending before the learned Chief Judicial Magistrate, Yupia.

¶7He also submitted that the matter has been settled amicably between the parties, and also executed a Deed of Settlement dated 04.07.2023, 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. The petitioner No.1 has undertaken to support the petitioner No.2 in the proceeding before the Court of learned Trial Court in ITA WPS Case No.87/2023 under Section 498(A) of IPC.

¶8In this context, Mr. J. Tsering, learned Public Prosecutor has submitted that the matter is regarding matrimonial dispute, thus, he raised no objection on the prayer made by the petitioners; as the matter has been settled amicably between the parties. Further, it is also seen that the informant/petitioner No.1 is Page No.# 4/7 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.

¶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 Page No.# 5/7 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.

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 Page No.# 6/7 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 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" Page No.# 7/7

¶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 view that the matter was 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 24.07.2022 registered as ITA WPS Case No.87/2022 under Section 498(A) of IPC and the proceedings corresponding GR.No.606/2022 pending before the learned Chief Judicial Magistrate, Yupia, is hereby set aside and quashed.

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

JUDGE Comparing Assistant

Page No.# 1/7 GAHC040009702023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : Crl.Petn./129/2023 Smti Femak Mangkya and Anr. W/o Raj Gollo @ Yumi, Permanent resident of Mangkya PO and PS Seppa, East Kameng District, and Arunachal Pradesh. Mobile No. 9436023159 2: Raj Gollo@Yumi Age: Occupation VERSUS THE STATE OF AP represented by the Public Prosecutor Advocate for the Petitioner : T Lamgu Advocate for the Respondent : P P of AP Crl.Petn./129(AP)/2023 Page No.# 2/7 :::BEFORE::: HON'BLE MRS. JUSTICE MITALI THAKURIA