Sri Deepak Devaiah vs State of Karnataka and Smt. Binny Deepak

N. Ananda

This petition is filed to quash the proceedings in C.C. No. 45591/2010 pending trial for offences punishable u/s 49S-A and 506 IPC. The petitioner and second respondent are before this Court and they have filed a joint memo reading as hereunder:

The petitioner and the respondent No. 2 herein humbly submits that the petitioner had filed G & WC No. 144/2010 and M.C. No. 1665/2010 before the Principal Judge, Family Court at Bangalore, seeking certain reliefs therein. The parties entered into a settlement agreement through the Court mediation process and have settled their disputes amicably. The said mediation report has been accepted by the Family Court. In pursuance of the settlement arrived at between the parties and put a quietus to all the disputes between the parties, the parties have also agreed that they will seek for quashing of C.C. No. 45591/2010. As such, the captioned case is filed before this Hon''ble Court and this Hon''ble Court be pleased to quash C.C. No. 45591/2010 in the interest of justice.

The learned Counsel for parties have also enclosed the proceedings and decree made in M.C. No. 1566/2010 under which, the marriage between parties has been dissolved by a decree of divorce.

The learned Government Pleader, relying on the judgment of the Supreme Court reported in 2011 AIR SCW 305 (in the case of Gian Singh -vs- State of Punjab and another) would submit that this Court by exercising its power u/s 482 Cr.P.C. 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 AIR 2009 SC 428 (in the case ofNikhil Merchant -us-Central Bureau of Investigation and another); B.S. Joshi and Others Vs. State of Haryana and Another, and AIR 2008 SC (Supp) 1171 fin the case of Manof Sharma -vs- State and others) 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.

The learned Counsel for petitioner and second respondent relying on the judgment of the Supreme Court reported in 2012 AIR SCW 445 (in the case of Shiji alias Pappu and others -vs- Radhika and another) submit that if the Court is satisfied that the proceedings have to quashed u/s 482 Cr.P.C. by taking into consideration, the settled principles of law and the scope of Section 482 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.

The learned Counsel would submit that in the case of Shiji alias Pappu and others -vs- Radhika and another (a subsequent judgment), the Supreme. Court has referred to the earlier judgments reported in AIR 2009 SC 428 in the case of Nkhil Merchant-vs- Central Bureau of Investigation and another); B.S. Joshi and Others Vs. State of Haryana and Another, and AIR 2008 SC (Supp) 1171 fin the case of Manoj Sharma -vs- State and others). Therefore, the teamed 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 parries have settled matrimonial disputes.

In the decision reported in 2011 AIR SCW 305 (Gian Singh''s case), the case sought to be quashed involved an offence u/s 120 (B) 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 u/s 482 Cr.P.C. for quashing the FIR was filed on the ground that the parties have compounded the offence. The petition u/s 482 Cr.P.C. was dismissed by the High Court and the same was taken before the Supreme Court in Spl. Leave Appeal (Crl.) No. 828/2010.

In the subsequent judgment reported in 2012 AIR SCW 445, the accused and complainant were the owners of the two adjacent properties. The first information was registered for offences punishable under Sections 354 & 394 of IPC. A petition u/s 482 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) AIR 2009 SC 675

ii) State of Karnataka Vs. L. Muniswamy and Others,

iii) Madhavrao Jiwajirao Scindia and Others Vs. Sambhajirao Chandrojirao Angre and Others,

iv) B.S. Joshi and Others Vs. State of Haryana and Another,

v) Madhu Limaye Vs. The State of Maharashtra,

vi) AIR 2008 SCW 2287

vii) AIR 2009 SC 428

viii) AIR 2008 SC (Supp) 1171

has held:

It is manifest that simply because art offence is not compoundable u/s 320 IPC is by itself no reason for the High Court to refuse exercise of its power u/s 482, 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 that 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 u/s 482 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, 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 u/s 482 Cr.P.C. are not for that purpose controlled by Section 320, Cr.P.C. Having said so, we must hasten to add that the plenitude of the power u/s 482 Cr.P.C. by itself makes it obligatory fir 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 u/s 482 may be 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 white dealing with a petition u/s 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.

The decision reported in 2011 AIR SCW 306 (in the case of State of Kerala v. Raneef) was rendered by the two judges on 3.1.2011. The decision reported in 2012 AIR SCW 445 (in the case of Shiji alias Pappu and Ors. -vs- Radhika and Another) was rendered by the two judges on 14.11.2011.

In a decision reported in AIR 1980 KAR 93 (in the case of Govindanaik G. Kalaghatigi -vs- West Patent Press C. Ltd. and another), a full Bench of this Court has held:

If two decisions of the Supreme Court on a question of law cannot be reconciled and if both 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 Court.

In the case on hand, second respondent had filed first information alleging offences under Sections 498-A and 506 of the Indian Penal Code against petitioner.

The first petitioner and second respondent are before this Court. The petitioner and second respondent submit that their marriage has been dissolved by a decree of divorce and they are living separately. The second respondent submits that she is not interested in prosecuting the case. The Learned Counsel for parties have filed a joint memo as a fore stated. The petitioner and second respondent have submitted that matrimonial disputes between them have been settled. Therefore the, proceedings before the Court below are quashed. Therefore, by following the decision reported in 2012 AiR SCW 445 (in the case of Shiji alias Pappu and others -vs- Radhika and another) and having regard to the facts and circumstances of the instant case, I accept the petition and quash the proceedings in C.C. No. 45591/2010 on the file of II Addl CMM., Bangalore.