Judgment:
1. This petition is filed to quash C.C. No.47071 of 2010 pending trial for an offence punishable under Section 419-A of the Indian Penal Code, 1860 and an offence under Section 67 of the Information Technology Act, 2000.
2. The petitioner and first respondent are before this Court and admit that the matrimonial disputes between them have been settled and marriage has been dissolved by a decree of divorce and they have no claims against each other and they have no issues. They have filed a joint memo. Today, petitioner (husband) has given a Demand Draft bearing No.003313, dated 21-1-2012 for a sum of Rs.9.00 lakhs drawn in favour of respondent (wife) on HDFC Bank. She acknowledges the receipt of the Demand Draft.
3. The learned Government Pleader relying on the judgment of the Supreme Court in the case of Gian Singh v State of Punjab and Another (2011 AIR SCW 305), would submit that this Court by exercising its power under Section 482 of the Criminal Procedure Code, 1973, cannot convert a non-compoundable offence to a compoundable offence. The learned Government Advocate would submit that in the case of Gian Singh, the Supreme Court has held that the decisions rendered by the Supreme Court in the case of Nikhil Merchant v Central Bureau of Investigation and Another (AIR 2009 SC 428 : (2008) 9 SCC 677 : (2008) 3 SCC (Cri.) 858 : 2008 AIR SCW 7501; in the case of B.S. Joshi and Others v. State of Haryana and Another (ILR 2003 Kar.1785 (SC) : AIR 2003 SC 1386 : (2003) 4 SCC 675 : 2003 SCC (Cri.) 848 : 2003 Cri.L.J. 2028 (SC)) and in the case of Manoj Sharma v State and others(AIR 2008 SC (Supp.) 1171 : (2008) 16 SCC 1), do not appear to be correctly decided. The Supreme Court in Gian Singh’s case has directed that the matter be placed before the larger Bench to consider the correctness of the aforesaid three decisions.
4. The learned Counsel for petitioner and first respondent relying on the judgment of the Supreme Court in the case of Shiji alias Pappu and Others v Radhika and Another (2012 AIR SCW 445 : (2011) 10 SCC 705), submit that if the Court is satisfied that the proceedings have to quash under Section482 of the Cr.P.C. by taking into consideration, the settled principles of law and the scope of Section 482 of Cr.P.C. the fact that the offences alleged in the impugned proceedings are non-compoundable would come in the way of quashing the proceedings.
5. The learned Counsel would submit that in the case of Shiji, (a subsequent judgment), the Supreme Court has referred to the earlier judgments in the case of Nikhil Merchant, B.S Joshi and Manoj Sharma. Therefore, the learned Counsel would submit that notwithstanding the fact that the case pending before the Court below involves non-compoundable offences there is no need to continue with the proceedings as the parties have settled matrimonial disputes.
6. In the decision in Gian Singh’s case, the case sought to be quashed involved an offence under Section 120-B of IPC, which is a non-compoundable offence. The accused had been convicted and the appeal against judgment of punishment was pending before the learned Sessions Judge. Before the Appellate Court, an application was filed for compounding of offences. Thereafter, petition under Section 482 of Cr.P.C. for quashing the FIR was filed on the ground that the parties have compounded the offence. The petition under Section 482 of Cr.P.C. was dismissed by the High Court and the same was taken before the Supreme Court in Special Leave Appeal (Cri.) No.828 of 2010.
7. In the subsequent judgment in Shiji’s case, the accused and complainant were the owners of the two adjacent properties. The first information was registered for offences punishable under Sections 354 and 394 of IPC. A petition under Section 482 of Cr.P.C. was filed to quash the proceedings and when the petition was pending for consideration, the parties/appellants arrived at a compromise and sought for quashing of the proceedings. The Supreme Court referring to the earlier judgments reported in:
(i) Ishwar Singh v State of Madhya Pradesh (AIR 2009 SC 675: (2008) 15 SCC 667 : 2008 AIR SCW 7865 : (2009) 3 SCC (Cri.) 1153);
(ii) State of Karnataka v. L. Muniswamy and others (1977 (2) Kar.L.J. 483 (SC) : AIR 1977 SC 1489 : (1977) 2 SCC 699 : 1977 Cri.L.J. 1125 (SC));
(iii) Madhavrao Jiwaji Rao Scindia and another v Sambhajirao Chandrojirao Angre and Others (AIR 1988 SC 709 : (1988) 1 SCC 692 : 1988 Cri.L.J.853 (SC));
(iv) B.S. Joshi’s case;
(v) Madhu Limaye Abbot v State of Maharashtra (AIR 1978 SC 47 : (1977) 4 SCC 551 : 1978 Cri.L.J.165 (SC) : 1978 SCC (Cri.) 10);
(vi) Madan Mohan Abbot v. State of Punjab (AIR 2008 SC 1969 : (2008) 4 SCC 582 : (2008) 2 SCC (Cri.) 464 : 2008 AIR SCW 2287 : 2008 Cri.L.J.2243 (SC));
(vii) Nikhil Merchant’s case;
(viii) Manoj Sharma’s case;
has held:
“It is manifest that simply because an offence is not compoundable under Section 320 of Cri.P.C. is by itself no reason for the High Court to refuse exercise of its power under Section 482 of Cr.P.C. That power can in our opinion be exercise in cases where there is no chance of recording a conviction against the accused and the entire exercise of a trial is destined to be an exercise in futility. There is a subtle distinction between compounding of offences by the parties before the Trial Court or in appeal on one hand and the exercise of power by the High Court to quash the prosecution under Section 482 of Cr.P.C. on the other. While a Court trying an accused or hearing an appeal against conviction, may not be competent to permit compounding of an offence based on a settlement arrived at between the parties in cases where the offences are not compoundable under Section 320 of the Cr.P.C., the High Court may quash the prosecution even in cases where the offences with which the accused stand charged are non-compoundable. The inherent powers of the High Court under Section 482 of Cr.P.C. are not for that purpose controlled by Section 320 of Cr.P.C. Having said so, we must hasten to add that the plenitude of the power under Section 482 of Cr.P.C. by itself, makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the power itself demands that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. It is neither necessary nor proper for us to enumerate the situations in which the exercise of power under Section 482 maybe justified. All that we need to say is that the exercise of power must be for securing the ends of justice an only in cases where refusal to exercise that power may result in the abuse of the process of law. The High Court may be justified in declining interference if it is called upon to appreciate evidence, for, it cannot assume the role of an Appellate Court while dealing with a petition under Section 482 of the Criminal Procedure Code. Subject to the above, the High Court will have to consider the facts and circumstances of each case to determine whether it is a fit case in which the inherent powers may be invoked”.
8. The decision in the case of State of Kerala v Raneef (AIR 2011 SC 340: (2011) 1 SCC 784 : (2011) 1 SCC (Cri.) 409 : 2011 AIR SCW 306), was rendered by the two Judges on 3-1-2011. The decision in the case of Shiji was rendered by the two Judges on 14-11-2011.
9. In a decision in the case of Govindanaik G. Kalaghatigi v. West Patent Press Company Limited and Another (ILR 1979 Kar. 1401 (CB):AIR 1980 Kant.92(CB)), a Constitutional Bench of this Court has held:
“If two decisions of the Supreme Court on a question of law cannot be reconciled and if both such Benches of the Supreme Court consist of equal number of Judges, the later of the two decisions should be followed by High Courts and other Courts”.
10. In the case on hand, the first respondent has filed first information alleging an offence punishable under Section 419-A of IPC and also for an offence punishable under Section 67 of the Information Technology Act against her husband (petitioner).
11. The petitioner and first respondent are before this Court. The petitioner and first respondent submit that their marriage has been dissolved by a decree of divorce and they are living separately. The first respondent submits that she has no issues and she is not interested in prosecuting the case.
12. In the circumstances, even if the proceedings before the Court below are continued and a trial is held, there are no chances of recording a conviction and the entire exercise of a trial would be an exercise in futility. Therefore, following the decision in Shiji’s case and having regard to the facts and circumstances of the instant case, I accept the petition and quash the proceedings in C.C.No.47071 of 2010 on the file of VI ACMM, Bangalore.