Friday, 25 April 2014

limitation for filing of domestic violence case in india.

Supreme Court of India
Inderjit Singh Grewal vs State Of Punjab & Anr on 23 August, 2011
Author: . B Chauhan
Bench: P. Sathasivam, B.S. Chauhan
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1635 of 2011
(Arising out of SLP(Crl.) No. 7787 of 2010)
Inderjit Singh Grewal …Appellant Versus
State of Punjab & Anr. …Respondents J U D G M E N T
Dr. B.S. CHAUHAN, J.

1. Leave granted.

2. The instant appeal reveals a very sorry state of affair where the wife files a criminal complaint before the competent court to initiate criminal proceedings against her husband alleging that they had obtained decree of divorce by playing fraud upon the court without realising that in such a fact-situation she herself would be an accomplice in the crime and equally responsible for the offence. More so, the appeal raises a substantial question of law as to whether the judgment and decree of a competent Civil Court can be declared null and void in collateral proceedings, that too, criminal proceedings.
3. This criminal appeal arises from the judgment and final order dated 9.8.2010 in Criminal Misc. No. M-29339 of 2009 (O&M) passed by the High Court of Punjab & Haryana at Chandigarh, by which the High Court has dismissed the application filed by the appellant under Section 482 of Code of Criminal Procedure, 1973 (hereinafter called as `Cr.P.C.’) for quashing the complaint No. 87/02/09 dated 12.6.2009 filed by respondent no. 2 under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter called the `Act 2005′).

4. Facts and circumstances giving rise to present case are as under: A. That the appellant and respondent no. 2 got married on 23.9.1998 at Jalandhar as per Sikh rites and from the said wedlock a son, namely, Gurarjit Singh was born on 5.10.1999. The parties to the marriage could not pull on well together because of temperamental differences and decided to get divorce and, therefore, filed HMA Case No. 168 of 19.9.2007 before the District Judge, Ludhiana under 2
Section 13-B of Hindu Marriage Act, 1955 (hereinafter called the `Act 1955′) for dissolution of marriage by mutual consent. In the said case, statements of appellant and respondent no. 2 were recorded on 19.9.2007 and proceedings were adjourned for a period of more than six months to enable them to ponder over the issue. B. The parties again appeared before the court on 20.3.2008 on second motion and their statements were recorded and both of them affirmed that it was not possible for them to live together and, therefore, the learned District Judge, Ludhiana vide judgment and order dated 20.3.2008 allowed the said petition and dissolved their marriage.
C. Respondent no. 2 filed a complaint before Senior Superintendent of Police, Ludhiana against the appellant on 4.5.2009 under the provisions of the Act 2005 alleging that the decree of divorce obtained by them was a sham transaction. Even after getting divorce, both of them had been living together as husband and wife. She was forced to leave the matrimonial home. Thus, she prayed for justice. The said complaint was sent to SP, City-I, Ludhiana for conducting inquiry. The said SP, City-I conducted the full-fledged inquiry and submitted the report on 4.5.2009 to the effect that the parties had been living 3
separately after divorce and, no case was made out against the present appellant. However, he suggested to seek legal opinion in the matter. D. Accordingly, legal opinion dated 2.6.2009 was sought, wherein it was opined that the parties had obtained the divorce decree by mutual consent and the allegations made by respondent no. 2 against the appellant were false and baseless and the purpose of filing the complaint was only to harass the appellant.
E. Respondent no. 2 subsequently filed a complaint under the Act 2005 on 12.6.2009. The learned Magistrate issued the summons to the appellant on the same date. The Magistrate vide order dated 3.10.2009 summoned the minor child for counseling. The appellant, being aggrieved of the order of Ld. Magistrate dated 12.6.2009, filed application dated 13.10.2009 under Section 482 Cr.P.C. for quashing the complaint dated 12.6.2009.
F. In the meanwhile, respondent no. 2 filed Civil Suit on 17.7.2009 in the court of Civil Judge (Senior Division), Ludhiana, seeking declaration that the judgment and decree dated 20.3.2008, i.e. decree of divorce, was null and void as it had been obtained by fraud. The said suit is still pending.
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G. Respondent no. 2 also filed application dated 17.12.2009 under Guardians and Wards Act, 1890 for grant of custody and guardianship of the minor child Gurarjit Singh and the same is pending for consideration before the Additional Civil Judge (Senior Division), Ludhiana.
H. Respondent no. 2 on 11.2.2010 also lodged an FIR under Sections 406, 498-A, 376, 120-B of the Indian Penal Code, 1860 (hereinafter called `IPC’) against the appellant and his mother and sister.
I. The High Court vide impugned judgment and order dated 9.8.2010 dismissed the application filed by the appellant. Hence, this appeal.

5. Shri Ranjit Kumar, learned senior counsel appearing for the appellant has submitted that the High Court erred in rejecting the application of the appellant under Section 482 Cr.P.C., as none of the reliefs claimed by the respondent no.2 could be entertained by the criminal court while dealing with the complaint; the complaint itself is time barred, thus, the Magistrate Court could not take cognizance thereof. The complaint has been filed because of malice in order to extract money from the appellant. More so, the plea of fraud alleged 5
by the respondent no.2 in the complaint for obtaining the decree of divorce before the Civil Court as per her own version, succinctly reveals that she herself had been a party to this fraud. The High Court failed to appreciate as to what extent her version could be accepted as she herself being the accomplice in the said offence of fraud committed upon the court. Even if the allegations made therein are true, she is equally liable for punishment under Section 107 IPC. More so, the reliefs claimed by the respondent no. 2 in the civil suit for declaring the decree of divorce as null and void and in another suit for getting the custody of the child referred to hereinabove, would meet her requirements. Thus, the appeal deserves to be allowed.
6. On the contrary, Shri Manoj Swarup, learned counsel appearing for the respondent no.2 has vehemently opposed the appeal contending that decree of divorce is a nullity as it has been obtained by fraud. The relationship of husband and wife between the appellant and respondent no.2 still subsists and thus, complaint is maintainable. The court has to take the complaint on its face value and the allegations made in the complaint require adjudication on facts. The issue of limitation etc. can be examined by the Magistrate Court itself. The appeal lacks merit and is liable to be dismissed. 6

7. We have considered the rival submissions made by learned counsel for the parties and perused the record.

8. Before we proceed to determine the case on merit, it is desirable to highlight the admitted facts of the case:
I. Appellant and respondent no.2 are highly qualified persons. Both of them are employed and economically independent. Appellant is an Assistant Professor and respondent no. 2 is a Lecturer. The appellant is Ph.D and respondent no.2 has registered herself for Ph.D. They are competent to understand the complications of law and other facts prevailing in the case.
II. Both of them got married in year 1998 and had been blessed with a son in year 1999. There was no complaint by respondent no.2 against the appellant of any cruelty, demand of dowry etc. before getting the decree of divorce dated 20.3.2008 by mutual consent. III. The decree of divorce has been obtained under Section 13-B of the Act 1955. Respondent no.2 was examined by the court on first motion on 19.9.2007 wherein she stated, inter-alia, as under: "We are living separately from each other since 23.9.2005. Now there is no chance of our living
together as husband and wife."
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IV. Respondent no.2 was examined in the second motion by the learned District Judge, Ludhiana on 20.3.2008, wherein she stated as under:
"My statement was recorded on 19.9.2007 alongwith the statement of my husband Inderjit Singh Grewal. Six months time was given to us to
ponder over the matter but we could not reconcile. One child was born from our wedlock namely Gurarjit Singh Grewal whose custody has been handed over by me to my husband Inderjit Singh
Grewal and he shall look after the welfare of the
said child. We have settled all our disputes regarding dowry articles and past and future permanent alimony. Now there is nothing left out
against each other. A draft of Rs.3,00,000/- ….has been received by me towards permanent alimony and maintenance and in lieu of dowry articles left by me in the matrimonial home. We are living separately since 23.9.2005. After that there is no co-habitation between us. There is no scope of our living together as husband and wife. I will remain bound by the terms and conditions as enshrined in
the petition. I have left with no claim against petitioner No.1. Our marriage may be dissolved by
passing a decree of divorce by mutual consent." V. The learned District Judge, Ludhiana granted the decree of divorce dated 20.3.2008 observing as under:
"They have settled all their disputes regarding dowry articles, past and future alimony….They are living separately from each other since
23.9.2005…The petitioners have not been able to
reconcile….The petitioners have settled all their disputes regarding dowry, stridhan and past and 8
future permanent alimony….The custody of the son of the petitioners is handed over to Inderjit Singh Grewal by Amandeep Kaur. The petition is
allowed. The marriage between the petitioners is henceforth declared dissolved…."
VI. The complaint dated 4.5.2009 filed by respondent no. 2 before the Senior Superintendent of Police, Ludhiana was investigated by the Superintendent of Police, City-I, Ludhiana. He recorded statements of several neighbours and maid servant working in appellant’s house and submitted the report to the effect that as the husband and wife could not live together, they obtained the decree of divorce by mutual consent. However, the complainant Amandeep Kaur had alleged that she was induced by her husband to get divorce for settling in the United States and it was his intention to kick her out from the house. However, the husband stated that she had been paid Rs.3,00,000/- in the court by draft and Rs.27,00,000/- in cash for which the husband Inderjit Singh Grewal had entered into an agreement to sell his ancestral property. The complainant had not been living with the appellant after the decree of divorce and they were not having physical relationship with each other. It was further suggested in the report that legal opinion may also be taken.
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VII. Legal opinion dated 2.6.2009 had been to the effect that the parties had taken divorce by mutual consent due to their differences. The allegation to the extent that they had been living together even after divorce were false and baseless and had been labelled only to harass the appellant.

9. The instant case is required to be considered in the aforesaid factual backdrop.
So far as the complaint dated 12.6.2009 is concerned, there had been allegation of mis-behaviour against the appellant during the period of year 2005. Respondent no. 2 alleged that during that period she had not been treated well by the appellant, thus, she had to take shelter in the house of her parents; all her belongings including the dowry articles were kept by the appellant and his parents. She has further given details how both of them have obtained decree of divorce by mutual consent as they wanted to settle in United States and therefore, they had decided to get divorce on paper so that the appellant may go to U.S.A. and get American citizenship by negotiating a marriage of convenience with some U.S. citizen and divorce her and again re-marry the complainant. She further alleged that even after decree of divorce she had been living with the appellant till 7.2.2009 1
and continued co-habitation with him. They had visited several places together during this period. The child had been forcibly snatched from her by the appellant. Therefore, she was entitled to the custody of the minor child along with other reliefs.

10. The question does arise as to whether reliefs sought in the complaint can be granted by the criminal court so long as the judgment and decree of the Civil Court dated 20.3.2008 subsists. Respondent no.2 has prayed as under:
"It is therefore prayed that the respondent no.1 be directed to hand over the custody of the minor child Gurarjit Singh Grewal forthwith. It is also prayed that the respondent no.1 be directed to pay to her a sum of Rs.15,000/- per month by way of rent of the premises to be hired by her at Ludhiana for her residence. It is also prayed that all the respondents be directed to restore to her all the dowry articles as detailed in Annexure A to C or in the alternative they be directed to pay to her a sum of Rs.22,95,000/- as the price of the dowry
articles. Affidavit attached." Thus, the reliefs sought have been threefolds (a) Custody of the minor son; (b) right of residence; and (c) restoration of dowry articles.
11. It is a settled legal proposition that where a person gets an order/office by making misrepresentation or playing fraud 1
upon the competent authority, such order cannot be sustained in the eyes of the law as fraud unravels everything. "Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law". It is a trite that "Fraud and justice never dwell together" (fraus et jus nunquam cohabitant). Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. Fraud and deception are synonymous. "Fraud is an anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine". An act of fraud on court is always viewed seriously. (Vide: Meghmala & Ors. v. G. Narasimha Reddy & Ors., (2010) 8 SCC 383)
12. However, the question does arise as to whether it is permissible for a party to treat the judgment and order as null and void without getting it set aside from the competent court.
The issue is no more res integra and stands settled by a catena of decisions of this Court. For setting aside such an order, even if void, the party has to approach the appropriate forum. (Vide: State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) & Ors., AIR 1996 SC 906; and Tayabbhai M.  Bagasarwalla & Anr. v. Hind Rubber Industries Pvt. Ltd., AIR 1997 SC 1240).
13. In Sultan Sadik v. Sanjay Raj Subba & Ors., AIR 2004 SC 1377, this Court held that there cannot be any doubt that even if an order is void or voidable, the same requires to be set aside by the competent court.
14. In M. Meenakshi & Ors. v. Metadin Agarwal (dead) by Lrs. & Ors., (2006) 7 SCC 470, this Court considered the issue at length and observed that if the party feels that the order passed by the court or a statutory authority is non-est/void, he should question the validity of the said order before the appropriate forum resorting to the appropriate proceedings. The Court observed as under:-
"It is well settled principle of law that even a void order is required to be set aside by a competent Court of law, inasmuch as an order may be void in respect of one person but may be valid in respect
of another. A void order is necessarily not non-est. An order cannot be declared to be void in collateral proceedings and that too in the absence of the authorities who were the authors thereof." (Emphasis added)
Similar view has been reiterated by this Court in Sneh Gupta v. Devi Sarup & Ors., (2009) 6 SCC 194.
From the above, it is evident that even if a decree is void ab initio, declaration to that effect has to be obtained by the person aggrieved from the competent court. More so, such a declaration cannot be obtained in collateral proceedings.
15. Respondent no.2 herself had been a party to the fraud committed by the appellant upon the civil court for getting the decree of divorce as alleged by her in the impugned complaint. Thus, according to her own admission she herself is an abettor to the crime.
A person alleging his own infamy cannot be heard at any forum as explained by the legal maxim "allegans suam turpetudinem non est audiendus". No one should have an advantage from his own wrong (commondum ex injuria sua memo habere debet). No action arises from an immoral cause (ex turpi cause non oritur action). Damage suffered by consent is not a cause of action (volenti non fit injuria). The statements/allegations made by the respondent no.2 patently and latently involve her in the alleged fraud committed upon the court. Thus, she made herself disentitled for any equitable relief. 
16. The offence of abetment is complete when the alleged abettor has instigated another or engaged with another in a conspiracy to commit offence. (Vide: Faguna Kanta Nath v. The State of Assam, AIR 1959 SC 673; and Jamuna Singh v. State of Bihar AIR 1967 SC 553). If more than one person combining both in intent and act, commit an offence jointly, each is guilty, as if he has done the whole act alone. Offence has been defined under Section 40 IPC and Section 43 IPC defines illegality. Making false statement on oath before the court is an offence under Section 191 IPC and punishable under Section 193 IPC.
17. While granting the decree of divorce, the statement of respondent no.2 had been recorded in the first as well as in the second motion as mentioned hereinabove. Period of more than 6 months was given to her to think over the issue. However, she made a similar statement in the second motion as well.
18. As per the statutory requirement, the purpose of second motion after a period of six months is that parties may make further efforts for reconciliation in order to save their marriage. There is also obligation 1
on the part of the court under Section 23(2) of the Act 1955 to make every endeavour to bring about a reconciliation between the parties. In Jagraj Singh v. Birpal Kaur, AIR 2007 SC 2083, this Court held that conjugal rights are not merely creature of statute but inherent in the very institution of marriage. Hence, the approach of a court of law in matrimonial matters should be "much more constructive, affirmative and productive rather than abstract, theoretical or doctrinaire". The court should not give up the effort of reconciliation merely on the ground that there is no chance for reconciliation or one party or the other says that there is no possibility of living together. Therefore, it is merely a misgiving that the courts are not concerned and obligated to save the sanctity of the institution of marriage.
19. In Smt. Sureshta Devi v. Om Prakash, AIR 1992 SC 1304, this Court held that mere filing the petition for divorce by mutual consent does not authorise the court to make a decree for divorce. The interregnum waiting period from 6 to 18 months is obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The court must be satisfied about the bonafides and the consent of the parties for the reason that court gets jurisdiction to make a decree for divorce only on mutual consent at the time of enquiry. The consent must continue to decree nisi and must be valid subsisting consent when the case is heard. Thus, withdrawal of consent can be unilateral prior to second motion. The Court further observed:
"The ‘living separately’ for a period of one year should be immediately preceding the presentation
of the petition. It is necessary that immediately preceding the presentation of petition, the parties must have been living separately. The expression ‘living separately’, connotes to our mind not living like husband and wife. It has no reference
to the place of living. The parties may live under the same roof by force of circumstances, and yet
they may not be living as husband and wife. The parties may be living in different houses and yet
they could live as husband and wife. What seemsto be necesssary is that they have no desire to perform marital obligations and with that mental attitude they have been living separately for a period of one year immediately preceding the presentation of the petition. The second requirement that they ‘have not been able to live together’ seems to indicate the concept of broken
down marriage and it would not be possible to reconcile themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved." (Emphasis added)
20. For grant of divorce in such a case, the Court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent. (Vide: Hitesh Bhatnagar v. Deepa Bhatnagar, AIR 2011 SC 1637).
21. Respondent no.2, who did not change her stand in the second motion and obtained a sham decree of divorce as alleged by her asked the criminal court to sit in appeal against the judgment and decree of the competent Civil Court. The complaint was filed before the Magistrate, Jalandhar while the decree of divorce had been granted by the District Judge, Ludhiana i.e. of another district. Therefore, it is beyond our imagination as under what circumstances a subordinate criminal court can sit in appeal against the judgment and order of the superior Civil Court, having a different territorial jurisdiction.
22. In the facts and circumstances of the case, the submission made on behalf of respondent no.2 that the judgment and decree of a Civil Court granting divorce is null and void and they continued to be the husband and wife, cannot be taken note of at this stage unless the suit filed by the respondent no.2 to declare the said judgment and decree dated 20.3.2008 is decided in her favour. In view thereof, the evidence adduced by her particularly the record of the telephone calls, photographs attending a wedding together and her signatures in school  diary of the child cannot be taken into consideration so long as the judgment and decree of the Civil Court subsists. On the similar footing, the contention advanced by her counsel that even after the decree of divorce, they continued to live together as husband and wife and therefore the complaint under the Act 2005 is maintainable, is not worth acceptance at this stage.
23. In D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469, this Court considered the expression "domestic relationship" under Section 2(f) of the Act 2005 placing reliance on earlier judgment in Savitaben Somabhai Bhatiya v. State of Gujarat & Ors., (2005) 3 SCC 636 and held that relationship "in the nature of marriage" is akin to a common law marriage. However, the couple must hold themselves out to society as being akin to spouses in addition to fulfilling all other requisite conditions for a valid marriage.
The said judgments are distinguishable on facts as those cases relate to live-in relationship without marriage. In the instant case, the parties got married and the decree of Civil Court for divorce still subsists. More so, a suit to declare the said judgment and decree as a nullity is still pending consideration before the competent court.  
24. Submissions made by Shri Ranjit Kumar on the issue of limitation, in view of the provisions of Section 468 Cr.P.C., that the complaint could be filed only within a period of one year from the date of the incident seem to be preponderous in view of the provisions of Sections 28 and 32 of the Act 2005 read with Rule 15(6) of The Protection of Women from Domestic Violence Rules, 2006 which make the provisions of Cr.P.C. applicable and stand fortified by the judgments of this court inJapani Sahoo v. Chandra Sekhar Mohanty, AIR 2007 SC 2762; and Noida Entrepreneurs Association v. Noida & Ors., (2011) 6 SCC 508.
25. In view of the above, we are of the considered opinion that permitting the Magistrate to proceed further with the complaint under the provisions of the Act 2005 is not compatible and in consonance with the decree of divorce which still subsists and thus, the process amounts to abuse of the process of the court. Undoubtedly, for quashing a complaint, the court has to take its contents on its face value and in case the same discloses an offence, the court generally does not interfere with the same. However, in the backdrop of the factual matrix of this case, permitting the court to proceed with the complaint would 2 be travesty of justice. Thus, interest of justice warrants quashing of the same.
26. The appeal succeeds and is allowed. The impugned judgment and order dated 9.8.2010 is hereby set aside. Petition filed by the appellant under Section 482 Cr.P.C. is allowed. Complaint No. 87/02/09 pending before the Magistrate, Jalandhar and all orders passed therein are quashed.
Before parting with the case, we clarify that respondent no.2 shall be entitled to continue with her other cases and the court concerned may proceed in accordance with law without being influenced by the observations made herein. The said observations have been made only to decide the application under Section 482 Cr.P.C. filed by the appellant.
………………………………….J.
(P. SATHASIVAM)
…………………………………..J.
(Dr. B.S. CHAUHAN)
New Delhi
August 23, 2011

accused never served with summon process under sec.82 of Cr.P.C. uncalled for.

The appellants took the stand that the proceedings were nothing but an abuse of the process of Court. It was pointed out that the summons issued were never served and bailable warrant of arrest and subsequently non-bailable warrant has been issued and even proceedings under Section 82 of the Code have been initiated. The High Court accepted that without service of summons the issuance of bailable as well as non-bailable warrant was uncalled for. It was also directed that the proceedings initiated under Section 82 of the Code was to be stayed and on the appellants appearing before the concerned court the proceedings shall continue. The application was accordingly disposed of. 
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Supreme Court of India
M/S Eicher Tractors Ltd.& Ors. vs Harihar Singh & Anr. on 7 November, 2008
Author: . A Pasayat
Bench: Arijit Pasayat, C.K. Thakker
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE/ORIGINAL JURISDICTION
CRIMINAL APPEAL NO. 1755 OF 2008
(Arising out of S.L.P. (Crl.) No. 861 of 2007)
M/s. Eicher Tractor Ltd. & Ors. …Appellants Versus
Harihar Singh & Anr. …Respondents With
T.P. (Crl.) No. 199 OF 2008
JUDGMENT
Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the order of a learned Single Judge of Allahabad High Court dismissing the petition under Section 482 of the Code of Criminal Procedure, 1973 (in short the `Code’). By the said 1
petition appellants had prayed for quashing the proceedings initiated on the basis of complaint filed by respondent No.1 and the order of learned Civil Judge, Junior Division/Judicial Magistrate, R. S. Ghat, Barabanki, dated 8th February, 2005 taking cognizance of offences punishable under Sections 420, 468 and 471 of the Indian Penal Code, 1860 (in short the `IPC’) and issuance of summons to the appellants. The learned magistrate recorded statements of the complainant under Section 200 of Code as well as of the witness under Section 202 of the Code and thereafter issued summons to the appellants to start proceedings. The appellants took the stand that the proceedings were nothing but an abuse of the process of Court. It was pointed out that the summons issued were never served and bailable warrant of arrest and subsequently non-bailable warrant has been issued and even proceedings under Section 82 of the Code have been initiated. The High Court accepted that without service of summons the issuance of bailable as well as non-bailable warrant was uncalled for. It was also directed that the proceedings initiated under Section 82 of the Code was to be stayed and on the appellants appearing before the concerned court the proceedings shall continue. The application was accordingly disposed of. 
3. Learned counsel for the appellant submitted that the background facts clearly show that the proceedings were initiated with a view to harass the appellants and as a counterblast to the proceedings initiated by the appellants. The order is supported by learned counsel for the respondent No.1.

4. In order to appreciate the stand taken by the appellant it is necessary to take note of the factual position, the same is as follows: On 1.4.1994 the Respondent no.1 approached the Petitioner no.1 for dealership, and a Letter of Intent appointment of dealer was issued to the Respondent.
On March 2000 the tenure of dealership of the Respondent no.1 was ended as the same was not doing business, incurring heavy debts to the appellant no.1.
On January, 2001 the Respondent no.1 issued cheque bearing no 628701 dated 30.12.2000 for Rs.50,00,000/-(Fifty Lacs) discharging his liability towards the debt incurred against the appellant No.1. 
On January, 2001 the Respondent presented the cheque bearing No. 628701 to his bank for withdrawal.
On 23.01.2001 the bank returned the cheque with an endorsement on the return memo i.e. refer to the drawer.
On 05.02.2001 the appellant issued a Legal Notice under Section 138 Negotiable Instrument Act, 1882 (in short the `NI Act’) On January 2001, the appellant filed a complaint u/s 138/442 read with Section 141 of the NI Act before the Court of judicial Magistrate-I, Faridabad.
On 12.04.2001, the Trial Court after considering the Complaint and the pre-summoning evidence took cognizance and issued summons against the Respondent. The Respondent no.1 appeared and subsequently was released on bail.
On 04.10.2002 the Respondent No.1 filed a private complaint under section 200 Cr.P.C. before the Civil Judge, (J.D.)/District Barabanki alleging that the officials of Petitioner no.1 herein had stolen the cheques bearing No. 0628701 ‘to 0628704, It was further mentioned by him that in the complaint that in the year 1998 he had informed the Bank of Baroda, Barabanki that he has lost the aforesaid cheques and also reported to the same to the SHO, Barabanki. He further alleged that the appellants herein forged the cheques bearing No. 0628701 and presented the same in the bank at Faridabad, and thereby alleged that they had committed an offence under Sections 468 & 471 IPC.
On 08.02.2005 the complaint bearing No. 1343 of 2004 filed by the Respondent No.1 herein came up for hearing before the Civil Judge, (J.D.)/ Judicial Magistrate, R.S. Ghat, Uttar Pradesh, and the Learned Magistrate vide its order dated 08.02.2005 took cognizance of the matter and issued summons to the Appellants.
In January 2007, to their utter shock and surprise, the appellants came to know that the Learned Civil Judge, (J.D.)/Judicial Magistrate, R.S.Ghat, Barabanki, Uttar Pradesh had issued non-bailable warrant and had also  initiated proceedings under Section 82 Cr.P.C. against them in the complaint case No. 1343 of 2004 filed by the Respondent herein.
5. Exercise of power under Section 482 of the Code in a case of this nature is an exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of  administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. 
6. In R.P. Kapur v. State of Punjab [AIR 1960 sc 866] this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings:
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction; (ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. (AIR para 6)

7. In dealing with the last case, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt, should not be an instrument of oppression or needless harassment. Court should be circumspect and judicious in exercising discretion and should take all  relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal[1992 Supp (1) SCC 335]. A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of the rare cases. The illustrative categories indicated by this Court are as follows: (SCC pp. 378-79, para 102)
"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7)Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
8. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are  magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceedings instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is  material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceedings.
9. These aspects were also highlighted in State of Karnataka v. M. Devendrappa [ 2002(3) SCC 89].

10. The case at hand squarely falls within the parameters indicated in category (7) of Bhajan Lal’s case (supra). The factual scenario as noted above clearly shows that the proceedings were initiated as a counterblast to the proceedings initiated by the appellants. Continuance of such proceedings will be nothing but an abuse of the process of law. Proceedings are accordingly quashed.

11. Appeal is allowed.
12
……………………………………J.
(Dr. ARIJIT PASAYAT)
……………………………………J.
(C.K. THAKKER)
New Delhi:

quashing of F.I.R under sec.498-A IPC on compromise/settlement ground under sec.482 of Cr.P.C.


There has been an outburst of matrimonial disputes in
recent times. The institution of marriage occupies an
important place and it has an important role to play in the
society. Therefore, every effort should be made in the
interest of the individuals in order to enable them to settle
down in life and live peacefully. If the parties ponder over
their defaults and terminate their disputes amicably by
mutual agreement instead of fighting it out in a court of law
in order to do complete justice in the matrimonial matters,
the courts should be less hesitant in exercising its
extraordinary jurisdiction. It is trite to state that the power
under Section 482 should be exercised sparingly and with
circumspection only when the court is convinced, on the
basis of material on record, that allowing the proceedings to
continue would be an abuse of the process of the court or
that the ends of justice require that the proceedings ought to
be quashed. We also make it clear that exercise of such
power would depend upon the facts and circumstances of
each case and it has to be exercised in appropriate cases in
order to do real and substantial justice for the administration
of which alone the courts exist. It is the duty of the courts to
encourage genuine settlements of matrimonial disputes and
Section 482 of the Code enables the High Court and Article
142 of the Constitution enables this Court to pass such
orders. 

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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 447 OF 2013
(Arising out of S.L.P. (Crl.) No. 6462 of 2012)
Jitendra Raghuvanshi & Ors. …. Appellant(s)
Versus
Babita Raghuvanshi & Anr. …. Respondent(s)
J U D G M E N T
P.Sathasivam,J.
1) Leave granted.
2) The important question that falls for determination in
the instant appeal is about the ambit and scope of the
inherent powers of the High Courts under Section 482 of the
Code of Criminal Procedure, 1973 (in short “the Code”) in
quashing of the criminal proceedings in non-compoundable
offences relating to matrimonial disputes. 
1Page 2
3) This appeal is directed against the final judgment and
order dated 04.07.2012 passed by the High Court of Madhya
Pradesh, Bench at Indore in M.CR.C. No. 2877 of 2012,
whereby the High Court dismissed the petition filed by the
appellants herein under Section 482 of the Code for quashing
of proceedings in Criminal Case No. 4166 of 2011 pending in
the Court of Judicial Magistrate Class I, Indore.
4) Brief facts:
a) The marriage of Jitendra Raghuvanshi (Appellant No. 1
herein) and Babita Raghuvanshi, respondent-wife, was
solemnized on 22.02.2002 as per Hindu rites and rituals.
After the marriage, the parties were residing together as
husband and wife at District Baitul, M.P. On 05.03.2003, an
FIR being No. 172 of 2003 was registered at P.S. Sarni, Dist.
Baitul for the offences punishable under Sections 498A, 406
read with Section 34 of the Indian Penal Code, 1860 (in short
‘the IPC’) at the instance of Babita Raghuvanshi –
respondent-wife owing to the harassment and torture meted
out to her in the matrimonial home by her husband and his
relatives. A Criminal Case being No. 4166 of 2011 was also
2Page 3
registered against the appellants herein for the offences
punishable under Sections 498A and 406 of the IPC and
Sections 3 and 4 of the Dowry Prohibition Act, 1961. 
b) During the pendency of the criminal proceedings, in the
year 2012, with the help and intervention of family members,
friends and well-wishers, the parties amicably settled their
differences by way of mutual settlement. Pursuant to the
same, on 03.04.2012, a compromise/settlement application
was filed for dropping of the criminal proceedings in Criminal
Case No. 4166 of 2011 and FIR No. 172 of 2003 dated
05.03.2003 before the trial Court. Respondent-wife also filed
an affidavit stating that she did not wish to pursue the
criminal proceedings against the appellants. However, by
order dated 03.04.2012, learned trial Judge rejected the said
application. 
c) Being aggrieved by the order dated 03.04.2012, on
09.04.2012, the appellants herein filed an application being
M.CR.C. No. 2877 of 2012 before the High Court invoking its
inherent powers under Section 482 of the Code to quash the
criminal proceedings launched against them. The High
3Page 4
Court, by impugned order dated 04.07.2012, dismissed the
application filed by the appellants herein stating that the
court has no power to quash the criminal proceedings in
respect of offences under Sections 498A and 406 of IPC since
both are non-compoundable. 
d) Aggrieved by the said order, the appellants have filed
the present appeal by way of special leave. 
5) Heard Ms. Preetika Dwivedi, learned counsel for the
appellants and Mr. S.K. Dubey, learned senior counsel for
Respondent No. 2 and Mr. Rahul, learned counsel for
Respondent No.1.
6) The scope and ambit of power under Section 482 of the
Code has been examined by this Court in a catena of earlier
decisions. In the present case, we are concerned about
interference by the High Court exercising jurisdiction under
Section 482 in relation to matrimonial disputes. 
7) It is not in dispute that matrimonial disputes have been
on considerable increase in recent times resulting in filing of
complaints under Sections 498A and 406 of IPC not only
against the husband but also against the relatives of the
4Page 5
husband. The question is when such matters are resolved
either by the wife agreeing to rejoin the matrimonial home or
by mutual settlement of other pending disputes for which
both the sides approached the High Court and jointly prayed
for quashing of the criminal proceedings or the FIR or
complaint by the wife under Sections 498A and 406 of IPC,
whether the prayer can be declined on the sole ground that
since the offences are non-compoundable under Section 320
of the Code, it would be impermissible for the Court to quash
the criminal proceedings or FIR or complaint. 
8) It is not in dispute that in the case on hand subsequent
to the filing of the criminal complaint under Sections 498A
and 406 of IPC and Sections 3 and 4 of the Dowry Prohibition
Act, 1961, with the help and intervention of family members,
friends and well-wishers, the parties concerned have
amicably settled their differences and executed a
compromise/settlement. Pursuant thereto, the appellants
filed the said compromise before the trial Court with a
request to place the same on record and to drop the criminal
proceedings against the appellants herein. It is also not in
5Page 6
dispute that in addition to the mutual settlement arrived at
by the parties, respondent-wife has also filed an affidavit
stating that she did not wish to pursue the criminal
proceedings against the appellants and fully supported the
contents of the settlement deed. It is the grievance of the
appellants that not only the trial Court rejected such prayer
of the parties but also the High Court failed to exercise its
jurisdiction under Section 482 of the Code only on the ground
that the criminal proceedings relate to the offences
punishable under Sections 498A and 406 of IPC which are
non-compoundable in nature. 
9) Learned counsel for the parties, by drawing our
attention to the decision of this Court in B.S. Joshi and
Others vs. State of Haryana and Another, (2003) 4 SCC
675, submitted that in an identical circumstance, this Court
held that the High Court in exercise of its inherent powers
under Section 482 can quash criminal proceedings in
matrimonial disputes where the dispute is entirely private
and the parties are willing to settle their disputes amicably.
It is not in dispute that the facts in B.S. Joshi (supra) are
6Page 7
identical and the nature of the offence and the question of
law involved are almost similar to the one in hand. After
considering the law laid down in State of Haryana vs.
Bhajan Lal, 1992 Supp (1) SCC 335 and explaining the
decisions rendered in Madhu Limaye vs. State of
Maharashtra, (1977) 4 SCC 551, Surendra Nath Mohanty
& Anr. vs. State of Orissa, (1999) 5 SCC 238 and Pepsi
Foods Ltd. & Anr. vs. Special Judicial Magistrate &
Ors., (1998) 5 SCC 749, this Court held: 
“8. … …. 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.”
Considering matrimonial matters, this Court also held: 
“12. The special features in such matrimonial matters are
evident. It becomes the duty of the court to encourage
genuine settlements of matrimonial disputes.”
10) As stated earlier, it is not in dispute that after filing of a
complaint in respect of the offences punishable under
Sections 498A and 406 of IPC, the parties, in the instant
case, arrived at a mutual settlement and the complainant
7Page 8
also has sworn an affidavit supporting the stand of the
appellants. That was the position before the trial Court as
well as before the High Court in a petition filed under Section
482 of the Code. A perusal of the impugned order of the
High Court shows that because the mutual settlement
arrived at between the parties relate to non-compoundable
offence, the court proceeded on a wrong premise that it
cannot be compounded and dismissed the petition filed
under Section 482. A perusal of the petition before the High
Court shows that the application filed by the appellants was
not for compounding of non-compoundable offences but for
the purpose of quashing the criminal proceedings. 
11) The inherent powers of the High Court under Section
482 of the Code are wide and unfettered. In B.S. Joshi
(supra), 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
8Page 9
ought to have quashed the criminal proceedings by
accepting the settlement arrived at. 
12) In our view, it is the duty of the courts to encourage
genuine settlements of matrimonial 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. 
13) There has been an outburst of matrimonial disputes in
recent times. The institution of marriage occupies an
important place and it has an important role to play in the
society. Therefore, every effort should be made in the
interest of the individuals in order to enable them to settle
down in life and live peacefully. If the parties ponder over
their defaults and terminate their disputes amicably by
mutual agreement instead of fighting it out in a court of law,
9Page 10
in order to do complete justice in the matrimonial matters,
the courts should be less hesitant in exercising its
extraordinary jurisdiction. It is trite to state that the power
under Section 482 should be exercised sparingly and with
circumspection only when the court is convinced, on the
basis of material on record, that allowing the proceedings to
continue would be an abuse of the process of the court or
that the ends of justice require that the proceedings ought to
be quashed. We also make it clear that exercise of such
power would depend upon the facts and circumstances of
each case and it has to be exercised in appropriate cases in
order to do real and substantial justice for the administration
of which alone the courts exist. It is the duty of the courts to
encourage genuine settlements of matrimonial disputes and
Section 482 of the Code enables the High Court and Article
142 of the Constitution enables this Court to pass such
orders. 
14) In the light of the above discussion, we hold that the
High Court in exercise of its inherent powers can quash the
criminal proceedings or FIR or complaint in appropriate cases
1Page 11
in order to meet the ends of justice and Section 320 of the
Code does not limit or affect the powers of the High Court
under Section 482 of the Code. Under these circumstances,
we set aside the impugned judgment of the High Court dated
04.07.2012 passed in M.CR.C. No. 2877 of 2012 and quash
the proceedings in Criminal Case No. 4166 of 2011 pending
on the file of Judicial Magistrate Class-I, Indore. 
15) The appeal is allowed. 
………….…………………………J. 
(P. SATHASIVAM) 
………….…………………………J. 
(JAGDISH SINGH KHEHAR)
………….…………………………J. 
(KURIAN JOSEPH)
NEW DELHI;
MARCH 15, 2013