IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO.No. 112 of 2006. Date of Decision: 5.4.2011.. _______________________________________________ Vikas Joshi and others. ….Petitioners. Versus. State of H.P. and another. ….Respondents. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1?.yes. For the petitioners :Mr.Atul Jhingan, Advocate., For Respondent-1. :Mr.P.K.Sharma, Addl. Advocate General with Ms. Shubh Mahajan, Dy. Advocate General. For respondent-2: Mr.Abhishekh, Advocate vice Mr. Ramakant Sharma, Advocate. Dev Darshan Sud, J.(Oral). The petitioners seek quashing of the proceedings in F.I.R. No. 224/2005 dated 3.11.2005 registered at Police Station, Nahan against the petitioners under Sections 380, 498-A and 406 I.P.C. The petitioners are British citizen who reside in England. It is pleaded that the respondent-wife Ms. Aradhana Sharma is also a permanent resident of the United kingdom. First Information Report No. 224 of 2005 dated 3.11.2005 was instituted by the respondent on Whether reporters of the Local papers are allowed to see the judgment.yes. 2 the basis of Daily Diary Report (Annexure:PE) was registered with the Police Station Nahan stating inter alia that the pass port of respondent No.2 has been stolen. The allegations read: “I was married to Mr. Vikas Joshi son of Sh. Naresh Joshi resident of 2, Chartwell Grove, Mapperley, NG 35 RD Nottingham U.K .according to Hindu right at Nahan on 27.8.2002. That during this period I was harassed physically and mentally by my in-laws. That on 7.9.2005 I alongwith my husband and in-laws Mr. Naresh HJoshi and Mrs. Aruna Joshi came to India and came to Nahan. We were supposed tos go back today by British Airways at xx p.m. But my in-laws and husband without informing me have left to U.K. through British Airways at 2.10 a.m. today. That they have intentionally, stealingly have taken away my passport valid up to 2010 and which carried a valid permanent U.K. Visa. The act of the above-said persons is illegal and criminal and, therefore, suitable action may be taken immediately so that my passport can be recovered from them on their arrival on Hitro Airport.” F.I.R. subject matter of the present petition came to be lodged vide Annexure:PF with the intervention of the Chief judicial Magistrate on the allegation that the complainant is a resident of Mukam, Jhanda Ji, Nahan. The marriage of the complainant was solemnized with Vikas Joshi at Nahan on 27.8.2002 in accordance with custom and ceremonies governing the community to which the parties belong. The marriage was arranged by Sh. S.S.Sharma, retired Assistant Engineer. The allegations are that the parents of the complainant on demand from the accused gifted dowry articles as per list attached with the complaint. After sometime, the complainant realized that the accused were not satisfied with the dowry gifted by the parents and as such the husband as also his relation have been pressing the complainant to claim money in cash from her parents. 3 The gist of the complaint is that a sum of Rs.10,00,000/- was demanded as dowry so that the husband of the complainant could purchase a house in England. When this amount was not paid, he slapped her in the presence of his parents. This in a nutshell is the grievance made in the complaint. I have not referred to the other allegations made as it is a long drawn story. It is undisputed before me that the marriage between the petitioner and the complainant has been dissolved by the Telford County Court in England on 5th July, 2006. It is also undisputed that this order (Annexure: PD) has not been challenged by any of the parties to this petition. The order reads: “The marriage of Vikas Joshi and Aradhana Joshi .Before District Judge Chapman sitting at Telford County Court, Telford Square, Malinsgate, Town Centre, Telford, TF 3 4 JP. Upon hearing counsel for the applicant wife and Solicitor for the respondent Husband. And upon the husband and wife agreeing that the terms of this order are accepted in full and final satisfaction of all claims for income, capital and property adjustment and pension sharing orders and of any other nature whatsoever which either may be entitled to bring against arising in relation to the marriage. And upon the husband and wife agreeing that the contents of the former matrimonial home, 20 Hornet Way, The Rock, Telford shall remain the absolute property of the husband. And upon the husband undertaking to the Court and agreeing that he shall make available over the course of the next 28 days for the Wife’s collection the list of item annexed hereto. And upon the wife undertaking to the court and agreeing to take all the necessary steps to ensure that the joint HSBC account numbered 91809903 is transferred into the sole name of the husband. And upon the husband undertaking to the court and agreeing that he shall assume full responsibility for the outstanding joint HSBC account referred to above and indemnify the wife in respect of any liability thereof, it being noted that the account currently stands at 2502.46. 4 And upon the husband undertaking to the Court and agreeing to use his best endeavour to procure the release of the wife within 56 days of the date of this order in respect of any outstanding mortgage upon 20 Hornet Way, The Rock, Telford and to indemnify the wife in respect of any liability thereof. And upon the husband and wife agreeing that neither of them has any legal or equitable interest in the property or assets owned by the other except as provided for in this order. And upon being agreed and recorded that the husband and wife’s interest in the land at plot 11 Axeland Park, Surrey be held in the names of the husband and wife in equal shares. By consent is ordered that: 1. The husband do pay or cause to be paid to the wife the sum of $ 5500.00 within 56 days of the date of this order. 2. Pursuant to paragraph 1 above, the wife do transfer within 56 days of the date of this order all her legal an beneficial interest in the property 20 Hornet Way, The Rock, Telford to the husband, subject to the outstanding mortgage in favour of HSBC. 3. Save as aforesaid, the Husband and Wife’s claim for financial provision, pension sharing and property adjustment orders do stand dismissed. Neither the husband nor the wife shall be entitled: (a) to make any further applications in relation to their marriage under the matrimonial Causes Act 1973 S.23(1) (a) or (b) or (b) to make an application to the Court on the death of the other for provision out of his or her estate. 4. It is ordered that the husband and wife shall each hear their own costs insofar as this application and the negotiations ancillary thereto are concerned.” There is no doubt in my mind after reading this order that the entire dispute between the parties stands settled. What I find from the allegation is that both the parties are permanent resident of the United Kingdom who choose to manipulate the process of law in India only for the sake of satisfying their egos. Learned counsel appearing for the respondents has raised a preliminary objection to the maintainability of the petition. In 5 particular, he refers to the judgment of the Supreme Court in Central Bureau of Investigation Vs. Ravi Shankar Srivastava, AIR 2006 SC. 2872 to urge that the High Court, exercising powers under Section 482 Cr.P.C. should not enter into an inquiry as to whether the evidence adduced is reliable or not. Learned counsel also relies on State of Punjab Vs. Subhash Kumar and others (2004) 13 SCC 437 to urge that the factual arena cannot be traversed by the Court when considering a petition under Section 482 Cr.P.C. To similar effect is the judgment of the court in Ravindra Kumar Madhanlal Goenka and another Vs. Rugmini Ram Raghav Spinners Private Ltd. (2009) 11 SCC 529 detailing and enumerating the jurisdiction of this Court. Last decision relied upon by the learned counsel is in D.K. Ganesh Babu Vs. State of Tamil Nadu and others, 2010 (2) Scale 698 where the court holds that in proceedings under Sections 498-A, 306 and 304-B IPC, it is not the domain of the Court to analyze evidence at the stage of quashing a F.I.R. Learned counsel for the petitioners relies upon the decision in Preeti Gupta and another Vs. State of Jharkhand and another (2010) 7 S.C.C. 667 holding : “30. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this Court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society. 32. It is a matter of common experience that most of these complaints under Section 498-A IPC are filed in the heart of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the 6 same time, rapid increase in the number of genuine cases of dowry harassment is also a matter of serious concern. 33. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fibre of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under Section 498-A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fibre, peace and tranquillity of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases. 36. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband’s relations had to remain in jail even for a few days, it would ruin the chances of an amicable settlement altogether. The process of suffering is extremely long and painful. 37. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislature. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the 7 legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law. (Pp. 676 & 677) He urges that in B.S.Joshi and others Vs. State of Haryana and another, (2003) 4 SCC 675 ,the court ruled: 6. In Pepsi Foods Ltd vs. Special Judicial Magistrate, (1998) 5 SCC 749, this Court with reference to Bhajan Lal case observed that the guidelines laid therein as to where the court will exercise jurisdiction under Section 482 of the Code could not be inflexible or laying rigid formulae to be followed by the courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. It is well settled that these powers have no limits. Of course, where there is more power, it becomes necessary to exercise utmost care and caution while invoking such powers. 7…………………………………………… 8………………………………………….. 9………………………………………….. 10. In State of Karnataka v. L. Muniswamy, (1977) 2 SCC 699 considering the scope of inherent power of quashing under Section 482, this Court held that in the exercise of this wholesome power, the High Court is entitled to quash proceedings if it comes to the conclusion that the ends of justice so require. It was observed that in a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceedings in the interest of justice and that the ends of justice are higher than the ends of mere law though justice had got to be administered according to laws made by the legislature. This Court said that the compelling necessity for making these observations is that without a proper realization of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and 8 its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction. On facts, it was also noticed that there was no reasonable likelihood of the accused being convicted of the offence. What would happen to the trial of the case where the wife does not support the imputations made in the FIR of the type in question. As earlier noticed, now she has filed an affidavit that the FIR was registered at her instance due to temperamental differences and implied imputations. There may be many reasons for not supporting the imputations. It may be either for the reason that she has resolved disputes with her husband and his other family members and as a result thereof she has again started living with her husband with whom she earlier had differences or she has willingly parted company and is living happily on her own or has married someone else on the earlier marriage having been dissolved by divorce on consent of parties or fails to support the prosecution on some other similar grounds. In such eventuality, there would almost be no chance of conviction. Would it then be proper to decline to exercise power of quashing on the ground that it would be permitting the parties to compound non-compoundable offences ? The answer clearly has to be in the “negative”. It would, however, be a different matter if the High Court on facts declines the prayer for quashing for any valid reasons including lack of bona fides. 11. In Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, (1988) 1 SCC 692, it was held that while exercising inherent power of quashing under Section 482, it is for the High Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. Where, in the opinion of the court, chances of an ultimate conviction are 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. 9 12. The special features in such matrimonial matters are evident. It becomes the duty of the court to encourage genuine settlements of matrimonial disputes. 13. The observations made by this Court, though in a slightly different context, in G.V Rao v. L.H.V Prasad (2000) 3 SCC 693 are very apt for determining the approach required to be kept in view in a matrimonial dispute by the courts. It was said that there has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counseled and brought about rapproachement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their “cases” in different courts.” (Pp. 679,680,681&682) I also take note of the decision of the Full Bench of the Punjab and Haryana High Court in Kulwinder Singh and others Vs. State of Punjab and another, 2007 3 PLR 439 which only follows the settled principles as laid down by the Supreme Court. The court holds: 25. To conclude, it can safely be said that there can never be any hard and fast category which can be prescribed to enable the Court to exercise its power under Section 482 of the Cr.P.C. The only principle that can be laid down is the one which has been incorporated in the Section itself, i.e., “to prevent abuse of the process of any Court” or “to secure the ends of justice”. 10 26. In Mrs. Shakuntala Sawhney V. Mrs. Kaushalya Sawhney and others, (1980) 1 SCC 63, Hon’ble Krishna Iyer, J. aptly summoned up the essence of compromise in the following words:- “The finest hour of justice arrives propitiously when parties, despite falling apart, bury the hatchet and weave a sense of fellowship of reunion”. 27. The power to do complete justice is the very essence of every judicial justice dispensation system. It cannot be diluted by distorted perceptions and is not a salve to anything, except to the caution and circumspection, the standards of which the court sets before it, in exercise of such plenary and unfettered power inherently vested in it while donning the cloak of compassion to achieve the ends of justice. 28. No embargo, be in the shape of Section 320(9) of the Cr. P.C; or any other such curtailment, can whittle down the power under Section 482 of the Cr. P.C. The compromise, in a modern society, is the sine qua non of harmony and orderly behaviour. It is the soul of justice and if the power under Section 482 of the Cr. P.C is used to enhance such a compromise which, in turn, enhances the social amity and reduces friction, then it truly is “finest hour of justice”. Disputes which have their genesis in a matrimonial discord, landlord-tenant matters, commercial transactions and other such matters can safely be dealt with by the Court by exercising its powers under Section 482 of the Cr. P.C in the event of a compromise, but this is not to say that the power is limited to such cases. There can never be any such rigid rule to prescribe the exercise of such power, especially in the absence of any premonitions to forecast and predict eventualities which the cause of justice may throw up during the course of a litigation. 29. The only inevitable conclusion from the above discussion is that there is no statutory bar under the Cr. P.C which can affect the inherent power of this Court under Section 482. Further, the same cannot be limited to matrimonial cases alone and the Court has the wide power to quash the proceedings even in non-compoundable offences 11 notwithstanding the bar under Section 320 of the Cr. P.C; in order to prevent the abuse of law and to secure the ends of justice. 30. The power under Section 482 of the Cr. P.C is to be exercised Ex-Debitia Justitia to prevent an abuse of process of Court. There can neither be an exhaustive list nor the defined para-meters to enable a High Court to invoke or exercise its inherent powers. It will always depend upon the facts and circumstances of each case. The power under Section 482 of the Cr. P.C has no limits. However, the High Court will exercise it sparingly and with utmost care and caution. The exercise of power has to be with circumspection and restraint. The Court is a vital and an extra-ordinary effective instrument to maintain and control social order. The Courts play role of paramount importance in achieving peace, harmony and ever- lasting congeniality in society. Resolution of dispute by way of a compromise between two warning groups, therefore, should attract the immediate and prompt attention of a Court which should endeavour to give full effect to the same unless such compromise is abhorrent to lawful composition of the society or would promote savagery. (Pp.450 & 451) The facts in the present case leave no doubt in my mind that it is a matrimonial dispute between the parties which now stands settled by both of them in U.K. where they are residing. In these circumstances, it would be in the fitness of things if the First Information Report subject matter of this petition is quashed including all subsequent actions taken thereon. On the submission made by the learned counsel for the respondent that this Court is traversing the principle/ratio of the judgment of the Supreme Court which laid down that this Court should not readily quash the criminal proceedings, I hold that the proposition urged in such a wide manner cannot be accepted. The Court has to be circumspect in exercising its powers but where the facts themselves 12 make out a case for intervention, no fetters can be placed on its powers save and except that it is an exercise to meet the ends of justice. To repeat, the parties are resident of United Kingdom, they have settled the matrimonial disputes there and this case only clogs the docket of the court. In these circumstances, continuation of the proceeding before this Court would serve no purpose. Taking into consideration the ratio in Preeti Gupta, B.S.Joshi and Kulwinder Singh’s case (supra), I hold that this litigation is nothing but un-necessarily clogging the docket of the Court. The petition is accordingly allowed. F.I.R. No. 224 of 2005 dated 3.11.2005 is quashed and set aside. (Dev Darshan Sud), Judge. April 5, 2011(R) 13