Crlmc3447/09, 3712/09 & WP(Crl.) 858/09 Page 1 of 38 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: October 20, 2009 Pronounced on: November 05, 2009 + (1) CRL.M.C. No. 3447/2009 # Narayani Gautam & Ors. ..... Appellant ! Through: Mr. Vijay Aggarwal and Mr. T.S. Atwal, Advocates Versus $ State …..Respondent ^ Through: Mr.Amit Sharma, Addl.P.P. for the State + (2) CRL.M.C. No. 3712/2009 & Crl.M.A.12619/09 Reserved on: October 30, 2009 Pronounced on: November 05, 2009 # Guddu & Ors. ..... Appellant ! Through: Mr. Brahman Singh, Advocate Versus $ State & Ors. …..Respondent ^ Through: Mr.R.N. Vats, Addl.P.P. for the State with Insp. Sukhdev Meena From P.S. Dwarka Crlmc3447/09, 3712/09 & WP(Crl.) 858/09 Page 2 of 38 + (3)W.P.(Crl.) No. 858/2009 Reserved on: November 03, 2009 Pronounced on: November 05, 2009 # Than Singh & Anr. ..... Appellant ! Through: Mr. Sanjeev Narula, Advocate Versus $ State N.C.T. of Delhi & Anr. …..Respondent ^ Through: Mr.Piyush Singh for Mr. Vikas Pahwa, Addl. Standing Counsel for CBI. CORAM: HON'BLE MR. JUSTICE V.K. JAIN 1. Whether Reporters of Local newspapers may be allowed to see the Judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the Judgment should be reported in the Digest? Yes V.K.Jain, J. These are two petitions u/s 482 of the Code of Criminal Procedure and the one under Article 226 of the Constitution read with Section 482 of Cr.P.C., for quashing the FIR and the proceedings arising therefrom. The petitioner in Criminal Misc. Case No.3447/2009 has sought quashing of Crlmc3447/09, 3712/09 & WP(Crl.) 858/09 Page 3 of 38 FIR No.118/2009 registered at P.S. Narela u/s 376/506 of IPC, whereas the petitioner in Criminal Misc. Case No.3712/2009 has sought quashing of the proceedings arising from FIR No.826/2007 which was initially registered u/s 304-B/498-A of IPC and in which the petitioners were discharged of the offence u/s 304-B of IPC. In WP (Crl.) 858/09, the petitioner has sought quashing of FIR registered u/s 323/186/353/332/34 of IPC and consequential proceedings. 2. In Crl.M.C. No.3447/2009, the prosecutrix who is a married woman, alleged that on 25th April, 2009, she fell sick and informed her husband on telephone who, then sent the petitioner Rajender to her house, for taking her to hospital. The prosecutrix was in semi-conscious state, when the petitioner came to her house. Taking advantage of her condition, the petitioner raped her and then fled from the house before arrival of her maid servant. It has been stated in the petition that since the parties belong to the same family, they have resolved all their disputes and differences. Crlmc3447/09, 3712/09 & WP(Crl.) 858/09 Page 4 of 38 3. In Criminal Case No.3712/2009, one Mehrunissa, who was married to petitioner No.1, Guddu died on 20th August, 2007. The cause of her death was opined to be broncho pneumonia, which resulted in respiratory failure and death. It was alleged in the FIR lodged by the father of the deceased that since the time of marriage, the husband, mother and sister of the deceased used to harass her for dowry. In between he also gave financial assistance to them to the extent it was possible for him. He further stated that about 8-10 days ago, the petitioner asked his daughter to demand Rs.80,000/- from him, over telephone, for construction of a house. The complainant was unable to pay that amount. Thereupon at about 7.30 p.m. on 20th August, 2007, petitioner Guddu called them from a STD Booth and threatened to marry again, in case Rs.80,000/- were not paid to him. The learned Additional Sessions Judge vide her order dated 4th July, 2008 held that since cause of her death was found to be broncho-pneumonia, no case u/s 304-B of IPC was made out. The matter was sent back for trial by a Magistrate for the offence punishable u/s 498-A of IPC. Crlmc3447/09, 3712/09 & WP(Crl.) 858/09 Page 5 of 38 4. In WP(Crl.) 858/09, the allegation against the petitioner, who is working in Delhi Police, is that when the officials of Delhi Jal Board, disconnected his unauthorized water connection, he came there in uniform, abused a Junior Engineer who had disconnected the supply and gave him beating. 5. Quashing of FIR and criminal proceedings pursuant to a compromise have been subject matter of a judicial pronouncement from time to time and the learned counsel for the petitioner in Crl.M.C. No.3447/2009 also has referred to a number of decisions of the Hon’ble Supreme Court and this court in which criminal proceedings were quashed in exercise of power u/s 482 of the Code of Criminal Procedure. 6. In Mahesh Chand and Another versus State of Rajasthan, 1990 (Supp) SCC 681, the accused was acquitted by the trial court but convicted by the High Court for the offence under Section 307 IPC. One of the accused was a lawyer practising in the lower court and there was a counter case arising out of the same transaction. That case had also been compromised. Permission was sought to compound the Crlmc3447/09, 3712/09 & WP(Crl.) 858/09 Page 6 of 38 offence under Section 307 of IPC. After examining the nature of the case and the circumstances under which the offence was committed, the Hon’ble Court directed the trial court to permit the parties to compound the offence. 7. In Central Bureau of Investigation, Vs. Duncans Agro Industries Ltd., (1996) 5 SCC 591, the FIR was registered by CBI Under Section 120B of IPC read with Sections 409, 420, 467 and 471 thereof, in respect of credit facilities extended by United Bank of India to a division of the Duncans Agro Industries Ltd. The second FIR was registered under Section 120B, read with Section 420 of IPC. The criminal proceedings were quashed by the High Court on a petition filed by Duncans Agro Industries Ltd. It was noted by the Hon’ble Supreme Court that the advances had already paid before civil courts in suits for recovery of their dues and those suits had been compromised on receipt of payments from the Companies. The Hon’ble Court observed that even if an offence of cheating is prima facie constituted, such offence is a compoundable offence and compromise decrees passed in the suits instituted by the Crlmc3447/09, 3712/09 & WP(Crl.) 858/09 Page 7 of 38 Banks, for all intents and purposes, amounts to compounding of the offence of cheating. It was also noted that investigations had not been completed till 1991 though the complaint was filed in 1987. In these circumstances, the Hon’ble Court felt that it would not be expedient to proceed further with the complaint and, dismissed the appeal, thereby maintaining the order of the High Court. 8. In Pepsi Foods Ltd. and Anr.VS. Special Judicial Magistrate and Ors., (1998) 5 SCC 549, the Hon’ble Supreme Court observed that power of the Court under Section 482 of the Code had no limit and were not inflexible though exercise of such powers would depend upon the facts and circumstances of each case, the sole purpose is being to prevent the abuse purpose of the Court or otherwise to secure the ends of justice. 9. In B.S. Joshi & Ors v State of Haryana and Anr (2003) 4 SCC 675, the Hon’ble Supreme Court, after reviewing case law on the subject quashed the criminal proceedings pursuant to settlement of disputes between husband and wife and on a joint prayer made by them. The Hon’ble Crlmc3447/09, 3712/09 & WP(Crl.) 858/09 Page 8 of 38 Supreme Court held that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, section 320 would not be a bar to the exercise of power of quashing it. It was noted that there would be almost no chance of conviction when the complainant was not likely to support the prosecution either because she had resolved disputes with her husband and other family members and as a result thereof, she had again started living with him or had parted company with him or was living happily on her own or had married someone else on earlier marriage having been dissolved by divorce with mutual consent of the parties. The Hon’ble Court was of the view that where in the opinion of the court, chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may, while taking into consideration the special facts of a case, also quash the proceedings. It was observed that in such matrimonial matters, it becomes the duty of the Court to encourage genuine settlements of matrimonial disputes. Crlmc3447/09, 3712/09 & WP(Crl.) 858/09 Page 9 of 38 10. In Jagdish Channana and Ors v. State of Haryana, AIR 2008 SC 1968, an FIR was registered in Sonepat under Sections 419, 420, 465, 468, 469, 471, 472 and 474 read with Section 34 of IPC. During pendency of these proceedings the parties entered into a compromise and one of the terms of the compromise was that the proceedings pending in the court would be withdrawn, compromised or quashed, as the case may be. The Hon’ble Supreme Court noticing that in the light of the compromise, it was unlikely that the prosecution will succeed in the matter and also noticing that the dispute was purely personal one and no public policy was involved in the transactions that had been entered into between the parties, held that continuing with the proceedings would be a futile exercise and quashed the FIR and all consequent proceedings. 11. In Madan Mohan Abbot Vs. State of Punjab, (2008) 4 SCC 582; an FIR was registered under Sections 379/406/409/418/34 of IPC in Police Station Kotwali of Amritsar. The parties entered into compromise under which the complainant party undertook to cooperate with the Crlmc3447/09, 3712/09 & WP(Crl.) 858/09 Page 10 of 38 accused to get the FIR cancelled / quashed. On the basis of compromise, an application was filed in the High Court for quashing the proceedings. The High Court having dismissed the application, the matter came up before the Hon’ble Supreme Court. Noticing that the dispute was purely personal one between two contesting parties and had arisen on extensive business dealings between them and there was absolutely no public policy involved, in the nature of the allegations made against the accused, the Hon’ble Supreme Court was of the opinion that no purpose would be served in continuing with the proceedings. The Hon’ble Court observed that it is advisable that in disputes where the question involved is purely personal in nature, the court should ordinarily accept the terms of compromise even in criminal proceedings as keeping the matter alive, with no possibility of a result in favour of the prosecution is a luxury, which the Courts, grossly overburdened as they are, cannot afford and that the time so saved can be utilized in deciding more effective and meaningful litigation. The Hon’ble Court held that this is public opinion and common sense approach Crlmc3447/09, 3712/09 & WP(Crl.) 858/09 Page 11 of 38 to the matter based on ground of realities and bereft of the technicalities of the law. 12. In Nikhil Merchant V. Central Bureau of Investigation and Anr, (2008) 9 SCC 677, CBI filed a charge sheet against 5 accused persons under Section 120-B r/w section 420, 467, 468 and 471 of IPC r/w 5(2) and 5(1) (b) of Prevention of Corruption Act, 1947 and Section 13(2) read with Section 13(1) (b) of Prevention of Corruption Act, 1988. This was a case about grant of financial assistance by a bank to a company which defaulted in repayment of the loan. The allegations in the charge sheet included that the accused conspired with each other for fraudulently diverting funds of the bank. Offences alleging forgery were also included in the charge sheet. A civil suit was also filed by the bank against the company which resulted into compromise. Consequent upon the compromise which provided that neither party had any claim against the other and the parties were withdrawing all allegations and counter allegations made against each other, the appellant, who was a Director of the Company, filed an application for his discharge from Crlmc3447/09, 3712/09 & WP(Crl.) 858/09 Page 12 of 38 criminal complaint in respect of which charge sheet had been filed by CBI. The application was rejected by the Trial Court as well as by High Court. The prayer for quashing the criminal proceedings was opposed by learned Solicitor General, who appeared for CBI and pointed out that the case also involved commission of forgery. It was also submitted by him that as pointed out by the Constitutional Bench in Supreme Court Bar Association Vs. Union of India & Anr, (1998) 4 SCC 409, in exercise of its plenary powers under section 142 of Cr. P.C., the Supreme Court should not ignore any substantive statutory provisions dealing with the subject. While observing that technically there was force in the statement made by Addl. Solicitor General, the Hon’ble Court felt that facts of the case warranted interference as dispute had overtones of a civil dispute with certain criminal facets and was a fit case where continuance of the criminal proceedings after the compromise would be a futile exercise. In that case clause 11 of the Consent Terms read as under: “Clause 11. Agreed that save as aforesaid neither party has any claim against the other and parties do hereby withdraw all the allegations and Crlmc3447/09, 3712/09 & WP(Crl.) 858/09 Page 13 of 38 counter allegations made against each other.” Thus, withdrawal of all accusations was the hallmark of the compromise in that case. 13. In a recent decision Central Bureau of Investigation vs. A Ravishankar Prasad & Ors, (2009) 6 SCC 351, CBI challenged an order passed by the High Court of Madras quashing criminal proceedings initiated by it under Section 120B with Section 420 of IPC and Section 13(2) read with Section 13(1) (d) of Prevention of Corruption Act, 1988. The case involved respondents entering onto a conspiracy with Chairman and Managing Director and other officials of Indian Bank with the object to cheat bank in the matter of obtaining credit facilities. The respondents cleared entire dues, by paying an amount of Rs. 1.57 crore to the bank and filed an application under section 482 of Cr. P.C. pursuant to which proceedings against the respondents were quashed by the High Court. The Hon’ble Supreme Court noted that charge sheet incorporated complicity of some public servants and private servants to defraud the bank. The Hon’ble Court also noted that the respondents and other Crlmc3447/09, 3712/09 & WP(Crl.) 858/09 Page 14 of 38 bank officials shared charge sheet under Section 120B read with Section 420 of IPC and was of the view that quashing charges against them would also have serious repercussions on the pending cases against other bank officials. The appeal filed by CBI was, therefore, allowed and the order passed by the High Court was set aside. During the course of judgment, the Hon’ble Court was of the view that exercise of inherent power would entirely depend on the facts and circumstances of each case, the object of incorporating such power in the Code being abuse of process of the court or to secure ends of justice. 14. In Smt. Rumi Dhar Vs. State of West Bengal & Anr. , JT 2009 (5) SC 321, an FIR was registered by CBI u/s 120- B/420/467/468/471 of IPC. The bank officers were also prosecuted under Prevention of Corruption Act. There was a settlement of the appellants with the banks. An application u/s 239 of Cr.P.C. was filed for dropping the criminal proceedings. The prayer was rejected by holding that the offence being against the society and investigation having been made by CBI, settlement could not have been entered Crlmc3447/09, 3712/09 & WP(Crl.) 858/09 Page 15 of 38 into. Rejecting the Appeal, and after considering Duncans Agro and Nikhil Merchant, the Hon’ble Supreme Court held that exercise of power of quashing would depend upon the facts and circumstances of each case. 15. In Manoj Sharma vs. State & Ors., Crl.M.A. 1619/2008 decided on 16.10.2008, an FIR got registered under Sections 420/468/471/34/121 of IPC pertaining to a dispute of private nature, was quashed pursuant to a compromise between the parties. During the course of the judgment written by him, the Hon’ble Mr.Justice Markandey Katju observed as under:- “There can be no doubt that a case under Section 302 IPC or other serious offences like those under Sections 395, 307 or 304B cannot be compounded and hence proceedings in those provisions cannot be quashed by the High Court in exercise of its power under Section 482 Cr.P.C. or in writ jurisdiction on the basis of compromise. However, in some other cases, (like those akin to a civil nature) the proceedings can be quashed by the High Court if the parties have come to an amicable settlement even though the provisions are not compoundable. Where a line is to be drawn will have to be decided in some later decisions of this Court, preferably by a larger Crlmc3447/09, 3712/09 & WP(Crl.) 858/09 Page 16 of 38 bench (so as to make it more authoritative). Some guidelines will have to be evolved in this connection and the matter cannot be left at the sole unguided discretion of Judges, otherwise there may be conflicting decisions and judicial anarchy. A judicial discretion has to be exercised on some objective guiding principles and criteria, and not on the whims and fancies of individual Judges. Discretion, after all, cannot be the Chancellor’s foot. I am expressing this opinion because Sh. B.B. Singh, learned counsel for the respondent has rightly expressed his concern that the decision in B.S. Joshi’s case (supra) should not be understood to have meant that Judges can quash any kind of criminal case merely because there has been a compromise between the parties. After all, a crime is an offence against society, and not merely against a private individual.” 16. In Satnam Kaur and Ors. versus State, 135(2006) DLT 84, the complainant alleged that on 2.11.2004, her parents- in law caught hold of her, her brother in law held her breast and her husband started beating her and saying that she had not brought anything in her dowry. It appears that there was also allegation of rape in that case. During the course of trial, a joint petition was filed by the parties stating Crlmc3447/09, 3712/09 & WP(Crl.) 858/09 Page 17 of 38 therein that they had agreed to dissolve their marriage by mutual consent and had amicably settled all their matrimonial disputes. It was further stated that FIR in question was lodged due to some misunderstanding. After noticing the decision of the Hon’ble Supreme Court in the case of B.S.Joshi & Ors. Vs. State of Haryana & Anr. (Supra), a learned Single Judge of this Court felt that since the charges levelled by the complainant would tantamount to outraging the modesty of the prosecutrix, supported by MLC and report of the Forensic Science Laboratory, the Court cannot give its permission in a case like this. 17. In Sushil Suri vs. CBI & Anr., Crl.M.C. 3842/2008, decided on 4.9.2009, this court declined to quash an FIR registered by CBI under Sections 120B/409/420/468/471 of IPC, despite a settlement between the petitioner and respondent No.2 18. In Crl.M.C. 1304/2004, 6389/2006 and 6600-04/2006, all decided by a common order dated 23rd May, 2008 this court declined to quash the FIRs alleging forgery and use of forged documents despite compromise between private Crlmc3447/09, 3712/09 & WP(Crl.) 858/09 Page 18 of 38 parties noticing the report of FSL which indicated forgery of documents. 19. In Crl.M.C. 3030/2009, decided on 10.9.2009, the FIR was registered under Section 313/313/376/34 of IPC. The proceedings were quashed after noticing that the complainant was happily living with her husband and did not want to proceed with. The mother of the complainant had also given approval to her marriage with petitioner No.1. Considering the peculiar facts and circumstances of the case, the FIR was quashed. 20. In Cr.M.C.3627/2009, an FIR registered under Section 420/467/468/471/120B/34 of IPC, due to some misunderstanding between the parties, who were three real sisters was quashed pursuant to a compromise between them. 21. In Ajay Kumar and Others vs. State and Others, 131(2006) DLT 130, an FIR registered under Sections 420/468/471/120-B, IPC was quashed pursuant to a settlement between the parties. The dispute involved a Crlmc3447/09, 3712/09 & WP(Crl.) 858/09 Page 19 of 38 private Limited Company and was found to be commercial in nature involving no public prosecution. 22. In B.K.Sondhi vs.State, 2001(1) JCC Delhi 73, an FIR registered under Sections 420/468/471 of IPC and was quashed on the basis of compromise between the parties. In that case, the Court also took the view that even prima facie no offence had been made out. The dispute in that case involved a private farm house situated in village Satbari. 23. In Chain Sukh & Ors. vs. State & Ors., 1999(1)JCC Delhi 142, an FIR under Sections 452/323/506/34 of IPC was quashed noticing the facts and circumstances of the case which involved the complainant, his wife and his brother. 24. In Yog Raj Arora versus State & Ors., 2002(2)JCC 1103, an FIR under Sections 420/467/471 IPC pertaining to dispute on some agricultural land, was quashed pursuant to a compromise between the parties. 25. In Govind and Others vs. The State, 2003 II AD (Cr) DHC 537, an FIR under Sections 498/496/34 IPC was Crlmc3447/09, 3712/09 & WP(Crl.) 858/09 Page 20 of 38 quashed relying upon the decision of the Hon’ble Supreme Court in the case of B.S.Joshi and Ors. (Supra). 26. In D.C.Singham versus State & Anr., 133(2006)DLT 372, an FIR under Section 406/420 of IPC was quashed pursuant to an amicable settlement of dispute between the parties. 27. In Gudayan Dravid & Anr. Vs. State & Anr., Crl.M.C.227/2005, decided on 30.11.2006, a learned Single Judge of this Court quashed the FIR under Section 406/120- B IPC pursuant to a compromise between the petitioners and the I.C.I.C.I. Bank Ltd. 28. In Mideast India Ltd. & Ors. vs. State, Crl.M.C. No.8661-64/2006 decided on 10.1.2007, the FIR under Sections 420/406/409/120 of IPC was quashed pursuant to a settlement between the petitioners and respondent No.2. 29. In Daulat Zia vs. Govt. of N.C.T. of Delhi, 74(1998)DLT259, the parties who were Afghan Nationals settled their differences and did not want to pursue the Crlmc3447/09, 3712/09 & WP(Crl.) 858/09 Page 21 of 38 complaint. The proceedings arising out of the FIR registered under Section 307 IPC were therefore, quashed. 30. In Rachna Gera & Ors. vs. State & Ors., 122(2005)DLT 412, an FIR lodged under Section 406/420/468/471/34 of IPC was quashed pursuant to compromise between the parties noticing that there was no allegation of criminal intent at the inception of the transaction and the dispute appeared to be of a private nature. 31. In Anil Kumar Vs.State, Crl.M.C. 6558-60/2006, an FIR under Sections 323/341/354/356/452 IPC and Sections 3(X) Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act was quashed pursuant to a compromise between the parties, who were neighbours. 32. In Neelu Gupta & Ors. vs. State 2007(3)JCC 1938, an FIR registered under Section 120B/420/467/471 of IPC was quashed pursuant to a compromise between the parties. The FIR was registered pursuant to a dispute between the private parties. Crlmc3447/09, 3712/09 & WP(Crl.) 858/09 Page 22 of 38 33. In Ansal Buildwel Limited vs. State, Crl.M.C. No.3517/2007 decided on 21.1.2008, an FIR registered under Section 420/468/471/120B of IPC which was quashed pursuant to a compromise between the parties. 34. In Crl.M.C. 2193/2007, an FIR got registered by respondent No.2 against the petitioner, who was her husband ,under Sections 420/468/471 and Section 12 of P.P.Act was quashed pursuant to compromise between the parties. 35. In Religare Securities Ltd. & Others vs. State, 2008[2] JCC 824, an FIR under Sections 420/406/468/471/120B IPC was quashed pursuant to a compromise between respondent No.2 and