HARVINDER SINGH Vs. BINDER KAUR

JUDGEMENT

(1.) This petition under section 482 Criminal Procedure Code. was filed alleging that petitioner No.1 was married to respondent. No.1 on 21/11/1993 and as they could not adjust with each other due to temperamental differences they started living separately from 20/12/1994. Respondent No. 1 lodged FIR No.760/95 under sections 498-A/406 Indian Penal Code on 15th December 1995 against the petitioners and criminal proceeding based thereon is pending before a Metropolitan Magistrate. It is further alleged that petitioner No.1 and respondent No.1 decided to dissolve their marriage by mutual consent. First motion under section 13-B (i) of Hindu Marriage Act was disposed of by the order dated 23/03/1996. In second motion under section 13-B(ii) of the Act Joint statement of parties was recorded on 27/05/1997 and marriage was dissolved by decree of divorce by mutual consent, by the order dated 31/05/1997 by an Additional District Judge. Respondent No.1 had received her istridhan. She had also been paid the settled amount of Rs.60,000.00 by petitioner No.1. It is stated that despite the undertaking given in said divorce petition the respondent No.1 has failed to cooperate with the petitioners in getting above FIR No.760/95 as also criminal proceeding emanating therefrom, quashed. It was prayed that FIR No.760/95 and criminal proceeding emanating therefrom pending before a Metropolitan Magistrate may be quashed.

(2.) Respondent No.1 contested the petition by filing reply. It is not disputed that she was married to petitioner No.1 and marriage was also dissolved by mutual consent on 31/05/1997 as alleged. However, it is stated that in addition to Rs.60,000.00, petitioners had agreed to pay amount of Rs.3 lakhs after the decree of divorce was passed which amount has not been paid. Compromise which debars respondent No.1 from claiming future maintenance is hit by section 23 of the Indian Contract Act. It is further alleged that offences under sections 406/498-A are non-compoundable and in exercise of power under section 482 Criminal Procedure Code. criminal proceeding pending against petitioners cannot be legally quashed.

(3.) Submission advanced by Sh.L.D.Adlakha for petitioners was that pursuant to amicable settlement reached between petitioner No.1 and respondent No.1 , marriage was dissolved by a decree of divorce by mutual consent on 31/05/1997. In second motion under section 13-B (ii) as also in statement recorded on 27/12/1997 respondent No.1 had undertaken to make statement for withdrawal of FIR No.760/95 and to cooperate with petitioner No.1 for quashing criminal proceeding emanating therefrom but she has failed to do so and, therefore, said FIR and criminal proceeding pending against the petitioners deserve to be quashed under section 482 Criminal Procedure Code. On the other hand, relying on the decisions in Pyare Lal Gupta & Ors vs. State and another, 1999(51) DRJ 524, the contention advanced by Sh. Rajan Kumar Chaurasia for respondent No.1 was that as the offences under sections 498-A and 406 Indian Penal Code are non-compoundable the inherent power under section 482 Criminal Procedure Code. cannot be invoked to quash the FIR and proceeding based thereon pending against the petitioners. Para No.8 of the petition under section 13-B(ii) of the Act (copy at pages 14 to 18) notices that amount of Rs.60,000.00 which petitioner No.1 had agreed to pay to respondent No.1 was towards the value of remaining dowry articles and permanent alimony. In all probabilities the value of dowry articles towards which said payment was made later on must be of more than Rs.250.00. Admittedly offence under section 498-A Indian Penal Code is non-compoundable. In the second Table given in Section 320 Criminal Procedure Code. the offence under section 406 Indian Penal Code has been shown to be compoundable with the permission of court where the value of property in respect of which breach of trust had been committed, did not exceed Rs-250/-. Sub-section (9) of said section 320 provides that no offence shall be compounded except as provided by that section. In the decision in Ram Lal and another vs. State of J & K. (1999) Vol.2 SCC 213 which was quoted with approval by a three Judge Bench in the decision in S.N. Mohanty and another vs. State of Orissa, JT 1999(3) SC 408, it was held by the Apex court that the offence which law declares to be non-compoundable, even with the permission of court, cannot be compounded. In the decision in Madhu Limaye vs. State of Maharashtra, AIR 1978 SC 47, it was held that power under section 482 Criminal Procedure Code. should not be exercised as against' the express bar of law engrafted in any other provisions of the Code. Similar is the ratio of the decisions in Simrikhia vs. Dolly Mukherjee, AIR 1990 SC 1605; Suraj Devi vs. Pyre Lal, AIR 1981 SC 736; Dharam Pal vs. Ramshree, AIR 1993 SC 1361 and Satya Narain Sharma vs. State of Rajasthan, JT 2001(8) SC 157. That being the legal position, proceeding under section 498-A / 406 Indian Penal Code pending against the petitioners cannot be terminated on the ground of respondent No.1 having undertaken to make statement for withdrawal of FIR in question and to cooperate with petitioner No.1 for quashment of criminal proceeding as it would run in the teeth of statutory prohibition contained in said sub section (9). What is interdicted in direct terms cannot be achieved in indirect manner by invoking section 482 Criminal Procedure Code. Petition, thus, deserves to be dismissed. Consequently, the petition is dismissed.