IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 826 of 2010
1. Subhash Agarwal @ Subhash Kumar Agarwal
2. Shankar Agarwal @ Shankar Lal Agarwal Petitioners
Versus
1. The State of Jharkhand
2. Manju Devi Opp. Parties
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CORAM: The Hon'ble Mr. Justice R.K. Merathia
The Hon'ble Mr. Justice D.N. Upadhyay
For the Petitioners: M/s Indrajeet Sinha, Ranjan Kumar, Ajay Kumar
and Mr. Bibhash Sinha, Advocates
For the State: Mr. Binod Kr. Singh, APP
For the O.P. No. 2: Mr. Nagmani Tiwari, Advocate
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I.A. No. 2284/2010
12.13.05.2011
As prayed, Mr. Sinha is permitted to label this I.A. under
section 482 Cr.P.C. and delete the name of petitioner no. 3-Mali Devi
who is said to have died during the pendency of this revision
application.
2. This I.A. has been filed under section 482 Cr.P.C. for
exempting the petitioners from surrendering in the trial court, for
entertaining this Criminal Revision Application. On such prayer, by
order dated 01.10.2010, the learned Single Judge has referred the
matter to the Division Bench for settling the following issues.
” Whether when both the parties have compromised
their case outside the Court and file a joint
compromise petition for compound the offence under
Section 320 Cr.P.C., in the revision application so
filed by the petitioners, the said revision application
can be posted for admission without surrender by the
petitioners in the trial court in view of the aforesaid
Rule 159 of the Jharkhand High Court Rules?
3. Mr. Indrajeet Sinha, learned counsel appearing for the
petitioners, submitted that after the petitioners were convicted for the
offences under section 498-A IPC by the Trial Court and the Appellate
Court, the complainant/O.P. No. 2-wife and the petitioner no. 1-
husband settled their disputes on the terms and conditions stipulated
in the joint compromise petition filed by the parties in this criminal
revision application being I.A. No. 2232/10.
He further submitted that it is true that vires of Rule 159
of the Jharkhand High Court Rules (JHC Rules for short) stand affirmed
by this court in the case reported in 2005(1) J C R 394 (jhr) Mahadeo
Prasad Shrivastava vs. High Court of Jharkhand, Ranchi, but even
then, in exercise of inherent powers under section 482 Cr.P.C., this
court, can exempt the petitioners from surrendering, for entertaining
this Revision Application. He relied on certain judgments / orders.
4. Mr. Nagmani Tiwari, learned counsel for the O.P. No. 2 did
not dispute this position.
5. However, Mr. Binod Kr. Singh, learned State counsel
submitted that in terms of Rule 159 of the Jharkhand High Court
Rules, petitioners should surrender, and in view of the settlement, at
best, some protection can be given to them like grant of provisional
bail, etc.
6. In the case of Mahadeo Prasad (Supra), it was submitted
that Rule 159 of the J.H.C. Rules has been made, in exercise of the
powers conferred on High Court under section 477(1)(d) of Cr.P.C.
However, section 482 Cr.P.C. is a non obstante clause, saving the
inherent powers of the High Court, for doing ex debito justitiae to do
that real and substantial justice for the administration of which alone it
exists
7. In the judgment reported in (2006) 7 SCC 296 Popular
Muthiah vs. State Represented by Inspector of Police, it was observed
as follows:
“30. In respect of the incidental or supplemental
power, evidently, the High Court can exercise its
inherent jurisdiction irrespective of the nature of the
proceedings. It is not trammelled by procedural
restrictions in that:
(i) Power can be exercised suo motu in the
interest of justice. If such a power is not conceded, it
may even lead to injustice to an accused.
(ii) Such a power can be exercised concurrently
with the appellate or revisional jurisdiction and no
formal application is required to be filed therefor.
(iii) It is, however, beyond any doubt that the
power under Section 482 of the Code of Criminal
Procedure is not unlimited. It can inter alia be
exercised where the Code is silent, where the power
of the court is not treated as exhaustive, or there is
a specific provision in the Code; or the statute does
not fall within the purview of the Code because it
involves application of a special law. It acts ex debito
justitiae. It can, thus, do real and substantial justice
for which alone it exist.
………………………
32. The decision of this Court emphasised the fact
that there exists a distinction between two classes of
cases viz. (i) where application of Section 482 is
specifically excluded, and (ii) where there is no
specific provision but limitation of the power which is
sought to be exercised has specifically been stated.
…………………..
34. This Court furthermore laid down that the
inherent power of the High Court can be invoked in
respect of the matters covered by the provisions of
the Code unless there is specific provision to redress
the grievance of the aggrieved party.
35. It is also not in dispute that the said power
overrides other provisions of the Code but evidently
cannot be exercised in violation/contravention of a
statutory power created under any other enactment.
43. Such a power evidently can be exercised even
after the trial is over.”
8. In the case reported in (2003) 4 SCC 675 B.S. Joshi vs.
State of Haryana an FIR was registered by the wife under section
498-A/323/406 IPC. Then an affidavit was filed by her saying that the
parties have settled their dispute and have agreed for mutual divorce.
The High Court rejected the prayer for quashing FIR under section
482 Cr.P.C., in view of the bar under section 320 Cr.P.C. The
Supreme Court interalia observed as follows.
“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 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 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 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 498-A in the Indian
Penal Code was to prevent torture to a woman by
her husband or by relatives of her husband. Section
498-A 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 counterproductive 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 XX-A of the 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.”
Paragraphs-36 and 37 of the judgment reported in (2010)
7 SCC 667 Preeti Gupta and another vs. State of Jharkhand and
another are also relevant:
“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 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.”
9. Moreover, from the order dated 12.02.2007 passed in Cr.
Revision No. 50 of 2007 with Cr. Revision No. 51 of 2007, it appears
that the learned Single Judge allowed the revision applications arising
out of the judgment and order of conviction passed under section
498-A/34/323 IPC in terms of the settlement arrived at between the
parties without insisting the petitioners of those cases to surrender as
a condition for entertaining the revision petition. Though not
specifically mentioned, but such order could be passed only under the
inherent powers of the High Court.
10. After hearing the parties,going through the provisions, and
the judgments / orders relied, we are inclined to answer the question
referred by the learned Single Judge as follows:
Even if the parties have compromised their dispute outside
the court and filed a joint compromise petition for compounding the
offence under section 320 Cr.P.C. in the revision application, it cannot
be posted for admission without surrender by the petitioners in the
trial court in view of Rule 159 of the Jharkhand High Court Rules.
However, in view of the aforesaid judgments passed by
the Supreme Court, we are of the considered view that if a petition
under section 482 Cr.P.C. is filed in the Revision Application, by the
persons convicted for the offences under sections 498-A/34/323/406
IPC and sections 3 / 4 of the Dowry Prohibition Act for exemption from
surrendering on the basis of the settlement between the parties, one
way or the other, before or after conviction, such petition can be
posted before learned Single Judge and section 320 Cr.P.C. or Rule
159 of the J.H.C. Rules will not create bar for the learned Single Judge
in exercising the inherent powers under section 482 Cr.P.C. in
exempting the petitioners from surrendering in the trial court, for
entertaining or passing other orders as the court may think fit and
proper.
11. Let the Revision Application be posted before the learned
Single Judge along with this I.A.
(R.K. Merathia, J)
(D.N. Upadhyay, J)
Ranjeet/