# Alok Jaiswal & Anr v. State of U.P. & Anr

- **Citation:** (2019) 1 ILRA 88
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-08
- **Case number:** CIVIL MISC. WRIT PETITION No. 27720 of 2019
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/alok-jaiswal-anr-v-state-of-u-p-anr-44491
- **Pages:** 8

## Headnote

A. Section 482 Cr.P.C. - Matrimonial
dispute - opposite party no. 2 who is the
wife of the applicant lodged an FIR u/s
498A, 323, 308, 342, 504, 506, 406
Indian Penal Code and 3/4 Dowry
Prohibition
Act,
1961-settlement
between parties- applicant adhered to
the condition of the term and condition
of the settlement - no useful purpose to
allow criminal prosecution- application
allowed in terms of compromise.
Chronological list of Cases Cited: -

## Text

88 INDIAN LAW REPORTS ALLAHABAD SERIES
case cannot be said to be abuse of the process
of the Court. There is no good ground to
invoke inherent power under Section 482
Cr.P.C. by this Court. Hence, criminal
proceedings against the applicants is not
liable to be quashed. As a fallout and
consequence of above discussion, the relief
as sought by the applicants through this
application is refused.

17. The instant application lacks
merit and is, accordingly, dismissed.

18.

Office
is
directed
to
communicate this order to the concerned
court below within two weeks.
--------

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.08.2019

BEFORE
THE HON'BLE SANJAY KUMAR SINGH J.

CIVIL MISC. WRIT PETITION No. 27720 of 2019
(u/s - 482 Cr. P.C.)

Alok Jaiswal & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Manvendra Nath Singh

Counsel for the Opposite Parties:
A.G.A., Sri Mainsh Jaiswal.

A. Section 482 Cr.P.C. - Matrimonial
dispute - opposite party no. 2 who is the
wife of the applicant lodged an FIR u/s
498A, 323, 308, 342, 504, 506, 406
Indian Penal Code and 3/4 Dowry
Prohibition
Act,
1961-settlement
between parties- applicant adhered to
the condition of the term and condition
of the settlement - no useful purpose to
allow criminal prosecution- application
allowed in terms of compromise.
Chronological list of Cases Cited: -
1. (1988) 1 SCC 692 Madhavrao Jiwajirao
Scindia
and
others
Vs.
Sambhaji-rao
Chandrojirao Angre and others

2. (2003) 4 SCC 675 B. S. Joshi and others Vs.
State of Haryana and another

3. (1977) 2 SCC 699 State of Karnataka Vs. L.
Muniswamy

4. AIR 2004 SC 261 Smt. Swati Verma Vs.
Rajan Verma and others

5. (2017) 9 SCC 641 Parbatbhai Aahir @
Oarbatbhai Vs. State of Gujrat

6. AIR 2019 SC 1296 State of Madhya Pradesh
Vs. Laxmi Narayan and others (E-10)
(Delivered by Hon'ble Sanjay Kumar
Singh, J.)

1. Heard Sri Manvendra Nath Singh,
learned counsel for the applicants, Sri
Birendra
Kumar
Singh,
learned
Additional Government Advocate assisted
by Sri Prashant Kumar Singh, learned
Brief holder for the State/opposite party
no.1 and Sri Manish Jaiswal, learned
counsel for the opposite party no.2 and
perused the record with the assistance of
learned counsel for the parties.

2. This application under Section
482 Cr.P.C. has been filed by the
applicants with a prayer to quash the
charge-sheet no. 34 of 2018 dated
23.07.2018 arising out of Case Crime No.
0005 of 2017 as well as cognizance order
dated 05.04.2019 and proceedings of case
no.8333 of 2018 (State Vs. Alok Jaiswal
and others), under Sections 498A, 323,
504, 506, 406 IPC and 3/4 D.P. Act,
Police Station Mahila Thana, District -
Allahabad pending in the court of 18th
Additional Chief Judicial Magistrate,
Allahabad.
1 All. Alok Jaiswal & Anr. Vs. State of U.P. & Anr.
89

3. Filtering out unnecessary details,
the basic facts, in brief, which are
necessary to dispose of the case are
encapsulated as under: -

The applicant no.1 is husband
and applicant no.2 is brother-in-law (Jeth)
of the opposite party no.2 Sonali Jaiswal.
The marriage of applicant no.1 was
solemnized on 14.2.2013 with opposite
party no.2, but their marriage was not
successful, as a result thereof, the
opposite party no.2 lodged FIR dated
22.1.2017 against the applicants, her
father-in-law and sister-in-law making
various allegations of beating, harassment
and torture adopting different modsoperandi, on account of non-fulfillment of
demand of dowry, etc. The Investigating
Officer
after
investigation
submitted
charge-sheet dated 23.7.2018, on which,
the Magistrate concerned took cognizance
on 25.9.2018. The said cognizance order
dated 25.9.2018 was challenged by the
applicants through an application under
Section 482 Cr.P.C. No. 773 of 2019,
which was allowed by order dated
10.1.2019 of the co-ordinate Bench of this
Court
and
cognizance
order
dated
25.9.2018 was quashed on the ground that
the same was passed on a printed
proforma without application of judicial
mind
and
without
considering
any
material brought on record by the
Investigating Officer alongwith chargesheet. By order dated 10.1.2019, liberty
was
also
given
to
the
Magistrate
concerned
to
pass
fresh
order
in
accordance
with
law.
Thereafter,
A.C.J.M., Court No.18, Allahabad again
passed the order dated 5.4.2019 taking
cognizance of the offence and summoned
the applicants afresh under Sections
498A, 323, 308, 342, 504, 506, 406 I.P.C.
and 3⁄4 Dowry Prohibition Act to face trial.
In the aforesaid background, the instant
application has been preferred by the
applicants.

4. On the previous hearing of this
case on 25.7.2019, learned counsel for the
applicants
and
opposite
party
no.2
informed the Court that now the parties
concerned are willing to make settlement
in the matter. On the said submissions and
on the request on behalf of applicants,
time was granted to the applicants to
make arrangement of payment to settle
the dispute amicably.

5. In the aforesaid background, today
a joint affidavit dated 5.8.2019 of the
applicants and opposite party no.2 has
been filed by contending that now parties
concerned have settled their matrimonial
dispute outside the Court and they have
no grievance against each other. The
contents of terms and conditions of
settlement as mentioned in paragraph nos.
4, 5, 6, 7, 8, 9 and 10 of the joint affidavit
dated 5.8.2019 are reproduced hereinbelow:-

"4. That it is submitted that it
has been agreed by the opposite party
no.2/Smt. Sonali Jaiswal that she will
receive an amount of Rs. 22,00,000/-
(Twenty Two Lakhs) from the applicant
no.1, and in pursuance thereof, she will
withdraw all the cases including the
present case filed by her against the
applicants and other family members.

5. That it is submitted that the
applicant no.1, as well as opposite party
no.2/Sonali Jaiswal also pledge not to
prosecute each other or family members
with regard to present matrimonial
dispute between them, and both the
parties shall also withdraw all the cases
pending against each other (if any).
90 INDIAN LAW REPORTS ALLAHABAD SERIES

6. That it is submitted that the
opposite party no.2/Smt. Sonali Jaiswal
also agreed to withdraw all the cases
which she filed against applicants and
their family members, the detail of them
are as under:-

(i) Present case i.e. Case Crime
No.005 of 2017 under sections 498A, 323,
504, 506, 406 IPC and Section 3⁄4 D.P.
Act, Police Station Mahila Thana, District
Allahabad.

(ii) Case No. 489 of 2017
(Sonali Jaiswal Vs. Alok Jaiswal) under
section 12/14 of Domestic Violence Act.

(iii) Case No. 659 of 2018 under
Section 125 Cr.P.C.

7. That the opposite party no.2
has pledged to withdraw all the aforesaid
cases, and further agreed not to prosecute
the applicants or their family members in
respect
of
present
matrimonial
proceedings/dispute.

8. That the applicant
no.1/Alok Jaiswal shall pay amount of Rs.
10 Lakhs on 08.08.2019 in the shape of
two demand draft, each demand draft of
Rs. 5 Lakhs.

The details of which are as
under:-

(i) Demand draft No.251357 of
Rs. 5 Lakhs drawn on 31.07.2019 at Bank
of Baroda, Branch office Mughal Sarain.

(ii) Demand Draft No. 251358
of Rs. 5 Lakhs drawn on 31.07.2019 at
Bank of Baroda, Branch Office, Mughal
Sarain.

The Photo state copies of
demand drafts are being filed herewith
and collectively marked as Annexure
No.1 to this Affidavit.

9. That both the aforesaid bank
drafts shall be paid to Smt. Sonali Jaiswal
and rest of the amount i.e. Rs. 12 Lakhs
(Twelve Lakhs) shall be paid by applicant
no.1 to opposite party no.2/Sonali Jaiswal
after filing of the case under Section 13-B
of Hindu Marriage Act before Family
Court, Allahabad. The said amount of Rs.
12 Lakhs shall be deposited before the
learned
Family
Court
during
the
proceedings of case under Section 13-B of
Hindu Marriage Act. It is made clear that
the rest of the amount of Rs. 12 Lakhs will
be paid by the applicant no.1, Alok
Jaiswal to Smt. Sonali Jaiswal during the
proceedings of case under Section 13-B of
the Hindu Marriage Act.

10. That in view of the
aforesaid facts, it is submitted that the
present joint affidavit be taken on record
and the applicant under Section 482
Cr.P.C. may be decided in the light of the
facts mentioned above."

6. Learned counsel for the applicants
pursuant to aforesaid settlement produced
two demand drafts of total amount of Rs. 10
lakhs (demand draft nos. 251357 of Rs. 5
lakhs dated 31.07.2019 and 251358 of Rs. 5
lakhs dated 31.07.2019 of Bank of Baroda
in the name of Smt. Sonali Jaiswal) and
handed over the aforesaid drafts of Rs. 10
lakhs to Sri Manish Jaiswal, learned counsel
appearing on behalf of the opposite party
no.2 before this Court. Photocopy of the
said demand drafts have also been brought
on record as Annexure No.1 to the joint
affidavit dated 5.8.2019.

7. Learned counsels appearing on
behalf of the applicants and opposite party
1 All. Alok Jaiswal & Anr. Vs. State of U.P. & Anr.
91
no.2 also submitted at the Bar that the
parties concerned shall comply with the
other terms and conditions of settlement,
as mentioned in the joint affidavit dated
5.8.2019 in its letter and spirit. Sri Manish
Jaiswal, learned counsel for the opposite
party no.2 further submits that now
opposite party no.2 has no grievance
against the applicants and she has no
objection in quashing the impugned
criminal
proceedings
against
the
applicants.

8. After having heard the arguments
of learned counsel for the parties, this
Court feels it appropriate to refer some
relevant judgments of the Apex Court,
wherein the Apex Court has laid down the
guideline
for
quashing
of
criminal
proceedings on the basis of compromise
and amicable settlement of matrimonial
dispute between the parties concerned,
which are as follows:-

8.1 The Apex Court in Madhavrao
Jiwajirao
Scindia
and
others
V.
Sambhaji-rao Chandrojirao Angre and
others 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
are 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.

8.2 The observations of the Apex
Court in G. V. Rao Vs. L.H.V. Prasad
and others 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 escalate 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
reapproachment 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.

8.3 The scope and ambit of the
power conferred on the High court by
Section 482 Cr.P.C., read with Articles
226 and 227 of the Constitution of India,
in the particular context of prayer for
quashing
criminal
proceedings,
was
examined by the Supreme Court in B.S.
Joshi and others. Vs. State of Haryana
and another against the backdrop of a
catena of earlier decisions. It was a
criminal case arising out of marital
discord. Noting, with reference to the
decision in State of Karnakata Vs. L
Muniswamy that in exercise of this
"inherent" and "wholesome power", the
92 INDIAN LAW REPORTS ALLAHABAD SERIES
touchstone is as to whether "the ends of
justice so require", it was observed thus :

"10. ... 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 according to laws made
by the legislature. ...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." (emphasis supplied)

It was further noted :-

"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 the 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 noncompoundable
offences?
The
answer
clearly has to be in the "negative". It would,
however, be a differentmatter if the High
Court on facts declines the prayer for
quashing for any valid reasons including
lack of bona fides". (emphasis supplied)

8.4 The Apex Court in another
decision in case of Smt Swati Verma Vs.
Rajan Verma and others where similar
to the present case, the dispute including
the
criminal
and
divorce
litigation
between the sparring spouses had been
decided on the basis of a compromise and
the husband had paid Rs. 6 lakhs to his
wife for the settlement, the apex Court
had quashed the criminal proceedings
under Section 498A and 406 IPC before
the CJM, rendering the application under
section 482 Cr.P.C before the Allahabad
High Court infructuous. It had also
granted the decree of divorce, rendering
the divorce suit pending before the ADJ at
Delhi infructuous, In that case in
paragraph 7 the Hon'ble Supreme Court
had observed:

"7. Having perused the records
placed before us we are satisfied that the
marriage between the parties has broken
down irretrievably and with a view to
restore good relationship and to put a
quietus to all litigations between the
parties and not to leave any room for
future litigation, so that they may live
peacefully hereafter, and on the request of
the parties, in exercise of the power
vested in this Court under Article 142 of
the Constitution of India, we allow the
application for divorce by mutual consent
filed before us under Section 13B of Hindu
1 All. Alok Jaiswal & Anr. Vs. State of U.P. & Anr.
93
Marriage Act and declare that the marriage
solemnized between the consenting parties
on 13th June, 2001 at Delhi is hereby
dissolved, and they are granted a decree of
divorce by mutual consent."

8.5 The Apex Court in case of
Parbatbhai Aahir @ Parbatbhai Vs.
State of Gujarat has also laid down the
criteria for exercise of the jurisdiction
under Section 482 Cr.P.C. by observing
that:-

"15. The broad principles which
emerge from the precedents on the
subject, may be summarised in the
following propositions :

(i) Section 482 preserves the
inherent powers of the High Court to
prevent an abuse of the process of any
court or to secure the ends of justice. The
provision does not confer new powers. It
only recognises and preserves powers
which inhere in the High Court;

(ii) The invocation of the
jurisdiction of the High Court to quash a
First Information Report or a criminal
proceeding
on
the
ground
that
a
settlement has been arrived at between
the offender and the victim is not the same
as the invocation of jurisdiction for the
purpose of compounding an offence.
While compounding an offence, the power
of the court is governed by the provisions
of Section 320 of the Code of Criminal
Procedure, 1973. The power to quash
under Section 482 is attracted even if the
offence is non-compoundable.

(iii) In forming an opinion
whether
a
criminal
proceeding
or
complaint should be quashed in exercise
of its jurisdiction under Section 482, the
High Court must evaluate whether the
ends of justice would justify the exercise
of the inherent power;

(iv) While the inherent power of
the High Court has a wide ambit and
plenitude it has to be exercised; (i) to
secure the ends of justice or (ii) to prevent
an abuse of the process of any court;

(v) The decision as to whether a
complaint or First Information Report
should be quashed on the ground that the
offender and victim have settled the
dispute, revolves ultimately on the facts
and circumstances of each case and no
exhaustive elaboration of principles can
be formulated;

(vi) In the exercise of the power
under Section 482 and while dealing with
a plea that the dispute has been settled,
the High Court must have due regard to
the nature and gravity of the offence.
Heinous and serious offences involving
mental depravity or offences such as
murder,
rape
and
dacoity
cannot
appropriately be quashed though the
victim or the family of the victim have
settled the dispute. Such offences are,
truly speaking, not private in nature but
have a serious impact upon society. The
decision to continue with the trial in such
cases is founded on the overriding
element of public interest in punishing
persons for serious offences;

(vii)
As
distinguished
from
serious offences, there may be criminal
cases which have an overwhelming or
predominant element of a civil dispute.
They stand on a distinct footing in so far
as the exercise of the inherent power to
quash is concerned;

(viii) Criminal cases involving
offences which arise from commercial,
financial, mercantile, partnership or
similar transactions with an essentially
civil flavour may in appropriate situations
fall for quashing where parties have
settled the dispute;
94 INDIAN LAW REPORTS ALLAHABAD SERIES

(ix) In such a case, the High
Court may quash the criminal proceeding
if in view of the compromise between the
disputants, the possibility of a conviction
is remote and the continuation of a
criminal
proceeding
would
cause
oppression and prejudice; and

(x) There is yet an exception to
the principle set out in propositions (viii)
and

(ix) above. Economic offences
involving the financial and economic
well-being of the state have implications
which lie beyond the domain of a mere
dispute between private disputants. The
High Court would be justified in declining
to quash where the offender is involved in
an activity akin to a financial or economic
fraud
or
misdemeanour.
The
consequences of the act complained of
upon the financial or economic system
will weigh in the balance."

8.6 The Apex Court recently in
a judgment dated 5.3.2019 rendered by a
Bench of three Hon'ble Judges in case of
State of Madhya Pradesh Vs. Laxmi
Narayan
and
others
considering
previous judgments and section 320
Cr.P.C. has laid down guideline for
exercising the jurisdiction under Section
482 Cr.P.C. in case of settlement of
dispute
between
the
accused
and
complainant. The para 13 of the said
judgment is reproduced herein-below:-

"13. Considering the law on the
point and the other decisions of this Court
on the point, referred to hereinabove, it is
observed and held as under:

i) that the power conferred
under Section 482 of the Code to quash
the criminal proceedings for the noncompoundable offences under Section 320
of the Code can be exercised having
overwhelmingly and predominantly the
civil character, particularly those arising
out of commercial transactions or arising
out of matrimonial relationship or family
disputes and when the parties have
resolved the entire dispute amongst
themselves;

ii) such power is not to be
exercised in those prosecutions which
involved heinous and serious offences of
mental depravity or offences like murder,
rape, dacoity, etc. Such offences are not
private in nature and have a serious
impact on society;

iii) similarly, such power is not
to be exercised for the offences under the
special
statutes
like
Prevention
of
Corruption Act or the offences committed
by public servants while working in that
capacity are not to be quashed merely on
the basis of compromise between the
victim and the offender;

iv) offences under Section 307
IPC and the Arms Act etc. would fall in the
category of heinous and serious offences and
therefore are to be treated as crime against
the society and not against the individual
alone,
and
therefore,
the
criminal
proceedings for the offence under Section
307 IPC and/or the Arms Act etc., which
have a serious impact on the society cannot
be quashed in exercise of powers under
Section 482 of the Code, on the ground that
the parties have resolved their entire dispute
amongst themselves. However, the High
Court would not rest its decision merely
because there is a mention of Section 307
IPC in the FIR or the charge is framed under
this provision. It would be open to the High
Court
to
examine
as
to
whether
incorporation of Section 307 IPC is there for
the sake of it or the prosecution has collected
sufficient evidence, which if proved, would
lead to framing the charge under Section 307
IPC. For this purpose, it would be open to
the High Court to go by the nature of injury
1 All. Manoj Singh Vs. State of U.P. & Anr.
95
sustained, whether such injury is inflicted on
the vital/delegate parts of the body, nature of
weapons used etc. However, such an
exercise by the High Court would be
permissible only after the evidence is
collected after investigation and the charge
sheet is filed/charge is framed and/or during
the trial. Such exercise is not permissible
when the matter is still under investigation.
Therefore, the ultimate conclusion in
paragraphs 29.6 and 29.7 of the decision of
this Court in the case of Narinder Singh
(supra) should be read harmoniously and to
be read as a whole and in the circumstances
stated hereinabove;

v) while exercising the power
under Section 482 of the Code to quash
the criminal proceedings in respect of
non-compoundable offences, which are
private in nature and do not have a
serious impart on society, on the ground
that there is a settlement/compromise
between the victim and the offender, the
High Court is required to consider the
antecedents of the accused; the conduct of
the accused, namely, whether the accused
was absconding and why he was
absconding, how he had managed with
the
complainant
to
enter
into
a
compromise etc."

9. The object of criminal law is
primarily to visit the offender with certain
consequences. He may be made to suffer
punishment or by paying compensation to
the victim, but the law at the same time also
provides that it may not be necessary in
every
criminal
offence
to
mete
out
punishment, particularly, if the victim wants
to bury the hatchet. If the offender and victim
want to move on in a matrimonial cases, they
may be allowed to compound the offences in
terms of settlement. Considering the facts
and circumstances of the case, as on date in
the light of dictum and guideline laid down
by the Apex Court as mentioned above, I
think the interests of justice would be met, if
the prayer of parties is acceded to and the
criminal proceedings and other litigation
between the parties is brought to an end.

On making settlement between
the parties in a matrimonial dispute, the
chance of ultimate conviction is bleak and
therefore, no useful purpose is likely to be
served by allowing a criminal prosecution
against the applicants to continue.

10. As a fallout and consequence of
above discussions, the impugned chargesheet dated 23.07.2018 arising out of Case
Crime No. 0005 of 2017, cognizance
order
dated
05.04.2019
and
entire
proceedings of case no.8333 of 2018
(State Vs. Alok Jaiswal and others), under
Sections 498A, 323, 504, 506, 406 IPC
and 3/4 D.P. Act, Police Station Mahila
Thana, District -Allahabad pending in the
court of 18th Additional Chief Judicial
Magistrate,
Allahabad
against
the
applicants are hereby quashed.

11. The instant application under
Section 482 Cr.P.C. is allowed in terms of
compromise as mentioned above.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.05.2019

BEFORE
THE HON'BLE SAUMITRA DAYAL SINGH, J.

CIVIL MISC. WRIT PETITION No. 33417 of 2017
(u/s -482 Cr. P.C.)

Manoj Singh ...Applicant
Versus
State of U.P. &Anr. ...Opposite Parties

Counsel for the Applicant:
Sarita Mishra