$~10 IN THE HIGH COURT OF DELHI AT NEW DELHI Decided on:-

'09th July, 2019 + CRL.M.C. 71/2019 and Crl. M.A . 347/2019 ARVIND KUMAR SAXENA & ORS .....

... Petitioner

s Through: Mr. Lohit Ganguly and Ms. Reeta Puniya, Advocates versus STATE (GOVT OF NCT OF DELHI) & ANR .....

... RESPONDENTS

Through: Ms. Meenakshi Chauhan, APP for the State with SI Pradeep Sharma, PS Govindpuri Ms. Anita Sharma, Advocate for R-2 with R-2 in person CORAM: HON'BLE MR. JUSTICE R.K.GAUBA ORDER (ORAL) 1. The second respondent was married to the first petitioner as per Hindu rites and ceremonies on 15.03.2010. From out of the said wedlock, a girl child named Kanika took birth on 14.02.2011. The marriage ran into rough weather, the second respondent raised allegations of she having been subjected to cruelty and deprived of her stridhan, first information report (FIR) no.853/2015 having been registered on 02.07.2015 by police station Govind Puri on her complaint involving offences punishable under Sections 498A, 406, 34 of Indian Penal Code, 1860 (IPC), the case being directed against Crl. M.C. No.71/2019 Page 1 of 8 her husband (first petitioner), his father (second petitioner) and his mother (third petitioner). On conclusion of the investigation, police filed report under Section 173 of the Code of Criminal Procedure, 1973 (Cr. PC) on which cognizance was taken, the said matter now pending on the file of the Metropolitan Magistrate.

2. It appears that the dispute between the parties also involved a claim of title over property no.624-F, third floor, gali no.6, Govind Puri, Kalkaji, New Delhi (“the residential property”), as indeed the claim of the second respondent for maintenance for self and the daughter, she also having initiated certain other proceedings including proceedings under Protection of Women from Domestic Violence Act, 2005 in the court of the Metropolitan Magistrate and a petition for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 in the Family Court; besides two other cases, one arising out of FIR no.202/2017 involving offences punishable under Section 279, 337, 506 IPC, and another arising out of NCR No.304/2015 alleging offences punishable under Sections 323 IPC. In addition, there is yet another case arising out of FIR no.483/2015 of police station Govind Puri, wherein allegations are stated to be made against the first two petitioners constituting offences punishable under Sections 323, 354, 354D, 34 IPC. The last mentioned case is subject matter of similar prayer for quashing under Section 482 Cr. PC in Crl. M.C. 171/2019, also listed today in the court.

3. The parties were referred to the process of mediation in the context of proceedings arising out of claim for maintenance under Crl. M.C. No.71/2019 Page 2 of 8 Domestic Violence Act and the aforementioned civil suit which has been initiated by the petitioners against the second respondent, the residential property being held and mutated in her name, they instead claiming declaration as to their title besides reliefs in the nature of injunction.

4. The process of mediation succeeded and the parties arrived at an amicable settlement, which was reduced into writing on 18.01.2018, copy whereof has been submitted as Annexure P3.

5. The learned counsel for the petitioners explained that the aforementioned civil suit preferred by the petitioners has already been withdrawn, they having conceded that the title over the residential property vests in the second respondent only in whose name it stands registered and mutated. The counsel for the second respondent submitted for record, and the counsel for the petitioners fairly conceded the same to be the correct representation of facts, a certified copy of the proceedings recorded by the court of the Additional District Judge on 25.01.2018 in the said civil suit. It is noted that, by their statements, the third petitioner being represented by her counsel, the petitioners had given up their claim over the said residential property, they having received from the second respondent at that stage an amount of Rs.1,00,000/- in terms of the mediation settlement.

6. It is conceded by the second respondent that on a joint petition for divorce by mutual consent (HMA7142018), the marriage of the parties i.e. the first petitioner and the second respondent was dissolved by the Family Court by a judgment and decree passed on 28.05.2018. Crl. M.C. No.71/2019 Page 3 of 8 7. It appears from the settlement terms that the second respondent has given up her right to claim maintenance from the first petitioner. She has submitted an affidavit sworn on 29.06.2019, pursuant to the directions in the earlier order confirming that the settlement agreement dated 18.01.2018 has been acted upon and complied with, she having no objection to the prayer for quashing of the aforementioned FIR no.853/2015. She has submitted for record copy of her aadhar card as proof of her identity.

8. Pertinent to note here that offence under Section 498A IPC is not compoundable. The parties are constrained to move this court for quashing on the basis of amicable resolution arrived at by them in the facts and circumstances noted above.

9. The scope and ambit of the power conferred on this court by Section 482 of the Code of Criminal Procedure, 1973 (Cr. PC) read with Articles 226 and 227 of the Constitution of India, in the particular context of prayer for quashing criminal proceedings, has been the subject matter of scrutiny and comment by the Supreme Court in a catena of judgments. It is well settled that in exercise of this “inherent” and “wholesome power”, the touchstone is as to whether “the ends of justice so require”. This court had the occasion to trace the relevant law on the subject in a batch of matters led by Yashpal Chaudhrani vs. State (Govt. of NCT Delhi), 2019 SCC Online Del 8179 wherein after taking note, inter alia, of State of Karnakata v. L Muniswamy, (1977) 2 SCC699 State of Karnataka v. M. Devendrappa, (2002) 3 SCC89 B.S. Joshi v. State of Haryana, Crl. M.C. No.71/2019 Page 4 of 8 (2003) 4 SCC675 Gian Singh Vs. State of Punjab and Anr. (2012) 10 SCC303 Jitendra Raghuvanshi v. Babita Raghuvanshi, (2013) 4 SCC58 K Srinivas Rao v. D.A. Deepa, (2013) 5 SCC226 Narinder Singh v. State of Punjab, (2014) 6 SCC466 State of Rajasthan v. Shambhu Kewat, (2014) 4 SCC149 Parbhatbhai Aahir Parbatbhai Bhimsinhbhai Kurmur, (2017) 9 SCC641and State of Madhya Pradesh v. Laxmi Narayan and others, (2019) 5 SCC688 the broad principles were culled out as under :-

'“55. Though the above-noted authoritative pronouncements of the Supreme Court have consistently laid down the broad principles governing the exercise of power of the High Court under Section 482 of the Cr. PC for bringing an end to the criminal process, for addressing the concerns noted at the outset and future guidance of trial courts, some of the crucial ones may be flagged as under:— (i). The inherent jurisdiction vested in the High Court, as recognized and preserved by Section 482 Cr. PC, is primarily to “prevent abuse of the process of court” or to “otherwise secure the ends of justice”. (ii). The ends of justice are higher than the ends of mere law, the prime principle governing the exercise of inherent power being “to do real, complete and substantial justice” for which the court exists. (iii) It is the duty of the court to give “adequate treatment to the settlement between the parties” particularly involving compoundable offences, the exercise of inherent power of the High in cases Crl. M.C. No.71/2019 Page 5 of 8 Court under Section 482 Cr.P.C., however, not being inhibited in case of non-compoundable offences though, for the latter category, such power is to be “exercised sparingly and with caution”. (iv). If the criminal case has “overwhelmingly and predominantly civil character”, particularly if it arises out of “commercial” (financial, mercantile, partnership or such other) transaction - and this would include the “cheque bouncing cases” under Section 138 N.I. Act - or “matrimonial dispute” or “family dispute”, genuine resolution on equitable terms, in entirety, by the parties should result in criminal proceedings being quashed. (v). Since the institution of marriage has an important role to play in the society, the court is to make every effort to encourage the parties to terminate such discord amicably and if it appears that elements of settlement exist, and the parties are willing, they are to be directed to the process of mediation to explore the possibility of settlement, it being desirable to do so even at the “pre-litigation stage”. (vi). While examining the prayer for quashing of a non compoundable offence, on the basis of settlement of the dispute between the wrongful doer and the victim, the High Court is to bear in mind as to whether the possibility of conviction is “remote and oblique” and further, if the continuation of the criminal case would lead to “oppression and prejudice” or “extreme injustice” for the accused. Crl. M.C. No.71/2019 Page 6 of 8 (vii). The considerations which would weigh with Court include the antecedents of the accused, possible lack of bona fides, his past conduct and that includes the question as to whether he had earlier absconded and as to how he had managed with the complainant to enter into a compromise. depravity”, as “mental (viii). But, the High Court, when called upon to exercise the power under Section 482 Cr. PC to bring the criminal case to an end on the basis of settlement, must steer clear of intervention in “heinous” or “serious” offences, including those involving indeed “economic offences” affecting “the financial and economic well being of the State”, such as murder, attempt forgery, rape, dacoity, financial or economic frauds, cases under Arms Act, etc., the reason being that such offences are “not private in nature” but have “a serious impact upon society”, and continuation of trial thereof is essential due to “overriding element of public interest”. to murder, extortion, (ix). The court, however, is not to go by mere use of label of a serious offence (e.g. offence under Section 307 IPC), it being open to it to examine, by scrutiny of the evidence gathered, to find as to whether there are sufficient grounds to frame charge for such offence and, in this view, it being “not permissible” to intervene till the matter has been properly investigated.” 10. In a case where criminal proceedings arise essentially out of matrimonial dispute and the parties have decided to bury the hatchet, Crl. M.C. No.71/2019 Page 7 of 8 the court must examine if there is any likelihood of the criminal prosecution resulting in conviction. In fact-situation wherein the matrimonial relation has been brought to an end by mutual consent and the parties are eager to move on with their respective lives seeking closure and if there is nothing to indicate lack of bonafide on the part of any side, denial of the prayer for quashing the criminal case would restore acrimony rather than bring about peace. Allowing continuance of the criminal action would be fruitless and clearly an abuse of judicial process.

11. The case at hand passes the muster of the above-noted tests.

12. In the above facts and circumstances, the petition is allowed. The crime registered by the police vide FIR8532015 under Sections 406, 498A, 34 IPC of Police Station Govind Puri and the proceedings emanating therefrom against the petitioners are hereby quashed.

13. The petition and the application filed therewith are disposed of accordingly. Dasti to both sides. R.K.GAUBA, J.

JULY09 2019 yg Crl. M.C. No.71/2019 Page 8 of 8