1.Subhasis Mishra 2.Nrushinha Mishra @ Nrusinghanath Mishra 3.Kiranbala Mishra 4.Debasis Mishra 5.Swarnaprava Mishra … v. 1.State of Odisha 2.Prachi Aparajita Tripathy
Case Details
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.2243 of 2021 1.Subhasis Mishra 2.Nrushinha Mishra @ Nrusinghanath Mishra 3.Kiranbala Mishra 4.Debasis Mishra 5.Swarnaprava Mishra …. Petitioners Mr.Debasis Panigrahi, Advocate Versus 1.State of Odisha 2.Prachi Aparajita Tripathy …. Opp. Parties Mr. P.K.Mohanty, ASC (for O.P.No.1) Ms.Tapaswini Mishra, Advocate (for O.P.No.2) CORAM: JUSTICE SAVITRI RATHO Order No. ORDER 24.02.2022 03. 1. Heard Mr. Debasis Panigrahi, learned counsel for the petitioners , Ms. Tapaswini Mishra, learned counsel for opp. party No.2 and Mr. P.K.Mohanty, learned Addl. Standing Counsel through hybrid mode. 2. In this application under Section 482 of the Code of Criminal Procedure (in short “Crl.P.C’), the petitioners have challenged the proceedings in G.R. Case No.2213 of 2017 pending in the court of learned S.D.J.M. (Sadar), Cuttack. In the said case, charge sheet has been filed against the petitioners for commission of offences under Sections 498-A/323/294/406/506/34 of I.P.C. read Page 1 of 12 // 2 // with Section 4 of the D.P. Act. Cognizance of the offences has been taken on 13.03.2018.
Legal Reasoning
Mr. Debashis Panigrahi, learned counsel for the petitioners submits that the case is posted in the learned court below for appearance of the accused persons and trial has not yet been started and in the meanwhile, the parties have settled the matter among themselves and the informant that opp. party No.2 does not want to proceed with the case. 3. Pursuant to issuance of notice in the present case, opp. party No.2, namely, Prachi Aparajita Tripathy, wife of Subhasis Mishra has entered appearance through counsel Mrs Tapaswini Mishra and has filed an affidavit. 4. Mr. Debashis Panigrahi, learned counsel for the petitioners relies on the decisions in the case of B.S.Joshi and others v. State of Haryana and another reported in (2003) 4 SCC 675 and Dimpey Gujral and others v. U.T. Chandigarh and others reported in (2013) 11 SCC 497 in support of his submissions that in view of the settlement between the parties, the order of cognizance and proceedings should be quashed in exercise of power under Section – 482 Crl.P.C even though some of the offences involved may not be compoundable under Section – 320 of the Crl.P.C. 5. Ms. T.Mishra, learned counsel appearing for the opp. party No.2 supports the submission of learned counsel for the petitioner and submits and draws my attention to the affidavit filed by Opp party No. 2 where she has stated that in view of settlement between her and petitioner No. 1, before the learned Judge, Family Court, Cuttack in Page 2 of 12 // 3 // Civil Proceeding No.260 of 2017, she has undertaken not to proceed with the above G.R. Case bearing No.2213 of 2017 any further. She has further stated that in view of the divorce between her and the petitioner, she has no objection if the prayer of the petitioner is allowed by quashing the order of cognizance under Annexure-2 as well as the entire proceeding in G.R. Case No.2213 of 2017. 6. Perusal of the judgment dated 19.04.2021 passed in C.P. No.660 of 2017 reveals that the petition filed under Section 13 (1) (i-a) (i-b) of the Hindu Marriage Act by the wife has been allowed and the marriage between the parties dissolved by a decree of divorce. The parties had filed a joint compromise petition for dissolution of marriage and a sum of Rs.8.00 lakh vide two demand drafts has been handed over to the wife towards permanent alimony. 7. The Supreme Court in the case of B.S.Joshi and others v. State of Haryana and another reported in (2003) 4 SCC 675 has held as follows “....10. In State of Karnataka v. L. Muniswamy & Ors. : (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 ends of justice so require. It was ob served 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 proceeding 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 Page 3 of 12 // 4 // 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 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 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. Answer clearly has to be in '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. Page 4 of 12 // 5 // 11. In Madhavrao Jiwajirao Scindia & Ors. v. Sambhajirao Chandrojirao Angre & Ors. : 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 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. 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 & Ors.:(2000) 3 SCC 693, are very apt for determining the approach required to be kept in view in 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 counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other Page 5 of 12 // 6 // 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. 14. There is no doubt that the object of introducing Chapter XX-A containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper-technical view would be counter productive and would act against interests of women and against the object for which this provision was added. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XXA of Indian Penal Code. 15. In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code.” The decision in B.S Joshi (supra), Nikhil Merchant and Manoj Sharma were doubted by a two judge Bench in Gian Singh vs State :(2010) 15 SCC 118 on 23.10.2010 and hence the matter was referred Page 6 of 12 // 7 // to a larger Bench and the reference was answered by a three judge Bench in Gian Singh vs. State of Punjab & Anr.: (2012) 10 SCC 303. After referring to and discussing a vast number of decisions of the Supreme Court and High court, the Supreme Court held that the decisions in B.S. Joshi (supra), Nikhil Merchant (supra) and Manoj Sharma (supra) could not be said to be not correctly decided. The relevant portions of the decision are extracted below: …“ 57. Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment.”… …“ 59. B.S. Joshi (2003) 4 SCC 675 , Nikhil Merchant