Dr. Kanhaiya Singh @ Kanhaiya Jee Singh v. The State Of Bihar

Patna High Court Cr.Misc. No.2394 of 2011 (20) dt.19-12-2013 No. 37241 of 2010 for restoring the application being Cr. Misc. No. 13296 of 2003, which was also dismissed on 04.10.2010, which is Annexure-6 series to the present quashing application. A joint compromise petition has been filed by the parties. Paragraph Nos. 6 and 7 of which suggest that petitioner has issued ten post dated cheques, bearing dates of December, 2013 and January, 2014, for total amount of Rs. 75,000,00/-(seventy five lacs) in favour of complainant and also returned jewellery and other articles and on the aforesaid terms, it was agreed between the parties that they have no objection if the present prosecution is quashed. The parties further agree to withdraw other cases going on between them. This Court is inclined to quote paragraph Nos. 6 and 7 of the joint compromise petition for the sake of clarity which read as follows:- “6. That the petitioner has given postdated cheques of Rs- 75000000/-(Seventy Five Lakhs) to O.P. No. 2. Details of cheques are as follows :- Sr No Bank 1 2 3 4 5 6 7 8 9 10 Cheque No Amount A/C No 840151 10899388448 SBI Ara 840152 10899388448 SBI Ara 840153 10899388448 SBI Ara SBI Ara 840154 10899388448 HDFC Bank 19421930000201 046284 HDFC Bank 19421930000201 046285 HDFC Bank 19421930000201 046286 HDFC Bank 19421930000201 046287 HDFC Bank 19421930000201 046288 HDFC Bank 19421930000201 046289 800000/- 800000/- 800000/- 800000/- 800000/- 800000/- 800000/- 800000/- 800000/- 300000/- Dated 26/12/2013 26/12/2013 26/12/2013 25/01/2014 26/12/2013 25/01/2014 25/01/2014 25/01/2014 25/01/2014 26/12/2013

7. That the petitioner Dr. Kanhaiya Singh has handed over the personal belongings(including jewellary) to O.P. No. 2 Pratibha Rani Singh. She has accepted all her belongings. An inventory has been prepared and is annexed herewith. 3 Patna High Court Cr.Misc. No.2394 of 2011 (20) dt.19-12-2013

8. That now both the parties agrees and undertakes that they will withdraw all the proceeding pending in different court against each other and will file an affidavit in this regard within two weeks that they have withdrawn all the cases and only after filing of such affidavit the compromise shall become final. And since there is stay on Complaint Case no. 109(C) of 2003 pending in the court of learned Chief Judicial Magistrate, Ara, the opposite party/complainant will have no objection if the entire case is quashed by this Hon’ble court.” It is submitted by learned counsel for the petitioner that second quashing application is maintainable in exercise of power under Section 482 of the Cr.P.C since initial quashing application was dismissed for default and was not considered on merits, hence, it can not be treated to be a judgment under Section 362 of the Cr.P.C. Reliance has been placed in the case of State of Bihar versus Ranjeet Kumar Chatterjee reported in 2000(1) PLJR-25. Paragraph No. 5 of the judgment reads as follows :-

5. The objection of the opposite party as to the maintainability of the present application should first of all be disposed of. The petitioners had as in the instant petition, jointly challenged the impugned order of cognizance earlier by preferring Criminal Misc. No. 13772 of 1992 which was admitted on

13.5.93. The same was laid before a learned Single Judge of this court for hearing on 10.1.94, but it was dismissed for default. The petitioners had preferred a restoration application which was registered as Criminal Misc. No. 645/94, to recall the 4 Patna High Court Cr.Misc. No.2394 of 2011 (20) dt.19-12-2013 said order dated 10.1.94, and to restore Criminal Misc. No.13772/92 to its original file, which was also dismissed by a learned single Judge of this court by order dated 2.2.94(Annexure-1). Relying on provisions of section 362 of the Code as well as the judgment of the Supreme court reported in AIR 1990 SC 1605 (Simrikhia vs. Dolley Mukherjee), learned counsel for the O.P. submitted that the inherent powers cannot be exercised by this court to review its own judgment. I am unable to accede to this contention. Section 362 of the Code reads as follows:- “362. Court not to alter judgment.- Save as otherwise provided by this Court or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.” It is manifest from the aforesaid facts that this court had not delivered any judgment on the merits of the case. It was rather dismissed for non- appearance of the counsel and the provisions of section 362 of the Code are not at all attracted. Therefore, the aforesaid judgment of the Supreme Court for the same reason is wholly inapplicable to the present case which basically dealt with the scope and content of section 362 of the Code.

5.1 The petitioners have placed reliance on the judgment of a learned single Judge of 5 Patna High Court Cr.Misc. No.2394 of 2011 (20) dt.19-12-2013 this court reported in 1988 PLJR 121 (Tarkeshwar Mishra vs. State of Bihar). In that case, the first quashing petition was dismissed as withdrawn long time ago. There was no progress in the trial inspite of complete absence of laches on the part of the accused persons therein. In those circumstances, this Court had held that dismissal of the earlier application was no bar to the maintainability of a second application for quashing the prosecution.

5.2. Law is well settled that if an earlier quashing petition has been dismissed, not on merits, but on grounds like non-appearance of the counsel, non-payment of court fee etc. then a second application is maintainable. Accordingly I have no hesitation in concluding that the present application in the circumstances stated above is maintainable. Considering the rival submissions of the parties, this Court is of the view that in spite of the fact that the offences under Section 498A of the I.P.C. is non-compoundable, but in exercise of power under Section 482 of the Cr.P.C., in the interest of justice quashing of prosecution is permissible in view of the ratio laid down in the case of B.S. Joshi and others versus State of Haryana and another, reported in (2003) 4 SCC 675. Paragraph 8 of the judgment reads as under :-

8. It is, thus clear that Madhu Limaye case does not lay down any general proposition limiting power of quashing the criminal proceedings or 6 Patna High Court Cr.Misc. No.2394 of 2011 (20) dt.19-12-2013 FIR or complaint as vested in Section 482 of the Code or extraordinary power under Article 226 of the Constitution of India. We are, therefore, of the view 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 is, however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power. The quashing of private nature of dispute in non cognizable offences on the basis of compromise has been reiterated in the case of Jitendra Raghuvanshi versus Babita Raghuvanshi reported in (2013) 4 SCC-58. Paragraph Nos. 14 and 15 of the judgment reads as under :-

14. The inherent powers of the High Court under Section 482 of the Code are wide and unfettered. In B.S. Joshi versus State of Haryana, (2003) 4 SCC 675, this Court has upheld the powers of the High Court under Section 482 to quash criminal proceedings where dispute is of a private nature and a compromise is entered into between the parties who are willing to settle their differences amicably. We are satisfied that the said decision is directly applicable to the case on hand and the High Court ought to have quashed the criminal proceedings by accepting the settlement arrived at.

15. In our view, it is the duty of the courts to encourage genuine settlements of matrimonial 7 Patna High Court Cr.Misc. No.2394 of 2011 (20) dt.19-12-2013 disputes, particularly, when the same are on considerable increase. Even if the offences are non- compoundable, if they relate to matrimonial disputes and the Court is satisfied that the parties have settled the same amicably and without any pressure, we hold that for the purpose of securing ends of justice, Section 320 of the Code would not be a bar to the exercise of power of quashing of FIR, complaint or the subsequent criminal proceedings. In view of the present stand of the parties, no useful purpose will be served in allowing the present prosecution to continue and thus, to secure the ends of justice, the entire prosecution of Complaint Case No. 109(C) of 2003 including the order dated 07.04.2003, whereby processes were directed to be issued with regard to the petitioner is hereby quashed. However, it is made clear that if the post dated cheques are dishonored due to laches of the petitioner, the complainant will have liberty to file appropriate application before this Court for passing necessary orders. Accordingly the application is allowed. Shageer/- (Dinesh Kumar Singh, J)