IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 826 of 2010

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1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 826 of Subhash Subhash Kumar Agarwal 2. Shankar Shankar Lal Agarwal Petitioners Versus 1. The State of Jharkhand 2. Manju Devi Opp. Parties --- 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 --- I.A. No. 2284/ 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 , 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

2 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 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

3 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 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

4 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 passed in Cr. Revision No. 50 of 2007 with Cr. Revision No. 51 of 2007, it appears

5 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) Ranjeet/ (D.N. Upadhyay, J)

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