# Madhu Tiwari v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 593
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-07
- **Case number:** Application U/S 482. No. 4095 of 2023
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/madhu-tiwari-v-state-of-u-p-ors-51923
- **Pages:** 11

## Headnote

Law-Criminal
Procedure
Code,1973-Section 482-Indian Penal Code,
1860-Sections 307, 323, 504, 506 & 3⁄4 D.P.
Act-quashing of criminal proceedingsmutual settlement in matrimonial disputemultiple applications filed by both the
parties, later they reached a settlementHeld, in cases where the dispute is private
and
resolved
amicably,
quashing
of
criminal proceedings is justified to secure
the ends of justice-the court directed the
family court to expedite the proceedings
and waived the statutory cooling off
period, following the Supreme Court
judgment in Amardeep singh Vs Harveen
Kaur.(Para 1 to 17)

B. In the exercise of the power u/s 482 and
while dealing with the plea that the dispute
has been settled, the high court must have
due regard to the nature and gravity of the
offence. 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.
(Para 11)

The application is allowed. (E-6)

List of Cases cited:

## Text

5 All. Madhu Tiwari Vs. State of U.P. & Ors.
593
milk was collected on 02.11.2010, which
itself was after the repeal of the Act, 1954.
Therefore, not only the summoning order
dated 12.09.2023 is erroneous, but also the
entire proceeding of the Complaint Case
No.1340 of 2011 (State Vs. Ashok Kumar
Pal) is itself illegal as the same was initiated
on the basis of the complaint filed under the
Act, 1954 (Repealed Act), not as per the
procedure of the Act, 2006 which was
prevalent at the time of filing the complaint.

17. Therefore, the proceeding of
Complaint Case No.1340 of 2011 (State Vs.
Ashok Kumar Pal), under Sections-51, 59(i)
of the Act, 2006, Police Station-George
Town, District-Allahabad (now Prayagraj),
pending in the court of Additional Chief
Judicial Magistrate, Court No.2, Allahabad
as
well
as
summoning
order dated
12.09.2023 is hereby set aside.

18. As already observed hereinabove
that more than three years has expired
from the date of commission of offence,
therefore, cognizance cannot be taken by
the concerned court, even on the fresh
complaint in view of Section-77 of the
Act, 2006. Therefore, Food Safety Officer,
cannot be permitted to file a fresh
complaint under the Act, 2006 because the
court cannot take cognizance on that
complaint in view of Section-77 of the
Act, 2006.

19. With the aforesaid observations,
the present application is allowed.
----------
(2024) 5 ILRA 593
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.05.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.
Application U/S 482. No. 4095 of 2023
&
Other Connected Cases

Madhu Tiwari ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Nadeem Murtaza, Aditya Vikram Singh

Counsel for the Opposite Parties:
G.A.

A.
Criminal
Law-Criminal
Procedure
Code,1973-Section 482-Indian Penal Code,
1860-Sections 307, 323, 504, 506 & 3⁄4 D.P.
Act-quashing of criminal proceedingsmutual settlement in matrimonial disputemultiple applications filed by both the
parties, later they reached a settlementHeld, in cases where the dispute is private
and
resolved
amicably,
quashing
of
criminal proceedings is justified to secure
the ends of justice-the court directed the
family court to expedite the proceedings
and waived the statutory cooling off
period, following the Supreme Court
judgment in Amardeep singh Vs Harveen
Kaur.(Para 1 to 17)

B. In the exercise of the power u/s 482 and
while dealing with the plea that the dispute
has been settled, the high court must have
due regard to the nature and gravity of the
offence. 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.
(Para 11)

The application is allowed. (E-6)

List of Cases cited:

1. Amardeep Singh Vs Harveen Kaur (2017) AIR
SC 4417

2. Shalini Massey Vs Neeraj Samuel Dass, FAPLD
No. 392 of 2019
594 INDIAN LAW REPORTS ALLAHABAD SERIES
3. B.S Joshi Vs St. of Har. & ors. (2003) 4 ACC
675

4. Gian Singh Vs St. of Punj. (2012) 10 SCC 303

5. Dimpey Gujral & ors. Vs U.T. Thru Admin.
(2013) 11 SCC 697

6. Narendra Singh & ors. Vs St. of Punj. & ors.
(2014) 6 SCC 466

7. Yogendra Yodav & ors. Vs St. of Jhar. (2014)
9 SCC 653

8. Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai
Karmur & ors. Vs St. of Guj. & anr.(2017) 9 SCC
641

9. R.P. Kapoor Vs St. of Punj. (1990) AIR SC 866

10. St. of Haryana Vs Bhajanlal (1992) SCC (Crl.)
426

11. St. of Bih. Vs P.P. Sharma (1992) SCC (Crl.)
192

12. Zandu Pharmaceutical Works Ltd. Vs Mohd.
Saraful Haq & anr.(2005) SCC (Crl.) 283 para 10

13. S.W. Palankattkar & ors. Vs St. of Bih. (2002)
44 ACC 168

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Sri Alok Saran as well as Sri
Himanshu Suryavanshi, learned counsel for
the Mitali Tiwari and Sri Nadeem Murtaza,
learned counsel for the Himanshu Tiwari
and Madhu Tiwari.

2. Since all the three cases are counter
blast cases filed by the parties against each
other, therefore, all the cases are being
decided with the common judgment and
Application under Section 4095 of 2023 is
being treated as leading case.

(I) Application under Section
4095 of 2023:- This application has been
filed with a prayer to quash the impugned
order
dated
27.03.2023
in
Criminal
Revision Case No.209/2022 (Madhu Tiwari
Vs. State of U.P. and 7 Others) passed by
learned Sessions judge-I. Lucknow, which
had affirmed the order dated 28.02.2022
passed by learned Judicial Magistrate-III,
Lucknow,
whereby
partially
opposite
parties are summoned for minor offences
under Sections 323, 504, 506 I.P.C. and all
the opposite parties were summoned for
committing additional major offences under
Sections 307, 384, 385, 388, 389 I.P.C. read
with Section 34 I.P.C. in Criminal
Complaint Case No.1882 of 2020 pending
before the learned Judicial Magistrate-III,
Lucknow.

(II) Application under Section
5104 of 2021:- This application has been
filed with a prayer to quash the order dated
17.11.2021 in Criminal Revision No.152 of
2021, under Section 397 Cr.P.C. read with
Section 399 Cr.P.C. passed by learned
Additional District and Sessions Judge-7,
Lucknow as well as to quash the order dated
27.07.2021 in Misc. Criminal Case No.3803
of 2020, under Sections 190 Cr.P.C. read
with Section 200 Cr.P.C. passed by learned
Special Chief Judicial Magistrate Custom,
Lucknow.

(III) Application under Section
3121 of 2023:- This application has been
filed with a prayer to quash the order of
summoning dated 28.02.2022 passed by the
Judicial
Magistrate-III,
Lucknow
in
Criminal Complaint No.1882 of 2020, under
Sections 323, 504, 506 I.P.C., Police Station
Mandiaon, District Lucknow as well as to
quash the entire criminal proceedings in
pursuance thereof.

3. On 03.04.2024, this Court has
passed the following order:-
5 All. Madhu Tiwari Vs. State of U.P. & Ors.
595

"Heard
Mr.
Anand
Kumar
Srivastava,
learned
Counsel
for
the
applicants, Mr. Nadeem Murtaza, learned
Counsel for the private opposite parties, Mr.
Ashok Kumar Singh, learned A.G.A. for the
State-opposite party.

The present application under
Section 482 Cr.P.C. has been moved by the
applicant seeking quashing of the impugned
order
dated
27.03.2023
in
Criminal
Revision Case No.209/2022 (Madhu Tiwari
vs. State & 7 Others) passed by court of
learned Sessions Judge I, Lucknow which
had affirmed order dated 28..02.2022
passed by learned Court of Judicial
Magistrate III, Lucknow which has only
partially summoned the opposite parties for
committing minor offences under Sections
323/504/506 I.P.C. and thereby summoning
all the opposite parties for committing
additional major offences under Section
307, 384, 385, 388, 389 r/w 34 I.P.C. in
Criminal Complaint Case No.1882/2020
(Madhu Tiwari vs. Mitali Tiwari & 6
Others) pending before learned Court of
Judicial Magistrate III, Lucknow.

In compliance of the order dated
12.03.2024 passed by the Coordinate Bench
of this Court, both the parties are present in
person, who have been identified by their
respective counsels.

On query made by this Court, Ms.
Mitali Tiwari, submits that she is ready to
settle
the
dispute
if
she
is
paid
Rs.10,00,000/- (Rupees Ten Lacs Only) as
one time alimony for her and her daughter,
namely-Sambhavi Tiwari.

Mr. Himanshu Tiwari, husband
of Ms. Mitali Tiwari submits that he is also
ready to settle the dispute by paying a sum
of Rs.10,00,000/- (Rupees Ten Lacs Only)
as one time alimony to his wife and his
daughter. In this regard he is ready to
bring the draft of Rs.5,00,000/- (Rupees
Five Lacs Only) on the next date of listing
of this case, in the name of Ms. Mitali
Tiwari i.e. half of the alimony amount. The
remaining amount of Rs.5,00,000/- will be
paid to Ms. Mitali Tiwari within 20 days'
from the date of filing a decree of divorce
under Section 13(B) of Hindu Marriage
Act.

Further, it was also assured by
both the parties that the decree of divorce
under Section 13(B) of Hindu Marriage
Act will be filed within 20 days' from the
date of this order before the Principal
Judge, Family Court, Lucknow and it was
also requested by learned Counsel for the
parties that a suitable direction may be
given by this Court to the family court to
decide the decree of divorce, if filed, by the
parties by diluting the period of motions in
view of the judgment of Hon'ble Supreme
Court in the case of Amardeep Singh vs.
Harveen Kaur, 2017 (8) SCC 746 and
Division Bench of this Court in the case of
Shalini Massey vs. Neeraj Samuel Dass
passed in First Appeal Defective No.392
of 2019.

The requests and proposals
made by both the parties appear to be
genuine and justified and it is better that
the parties may be separated as early as
possible for their better life ahead.

In view of the above, the
Principal Judge, Family Court, Lucknow
is directed to decide the decree of divorce,
if filed, by the parties within the stipulated
time in light of the law laid down by the
Hon'ble Supreme Court in the case of
Amardeep Singh (supra) and Division
Bench of this Court in the case of Shalini
Massey (supra) positively by diluting the
period of motions/cooling period.

Accordingly, list/put up this case
on 10quashing.04.2024 for further orders
before this Court.

It is made clear that if the draft of
Rs.5,00,000/- (Rupees Five Lacs Only) is not
596 INDIAN LAW REPORTS ALLAHABAD SERIES
brought by Mr. Himanshu Tiwari, on the
next date fixed, this Court will proceed and
will pass final order in this case.

On the next date fixed, both the
parties shall again appear in person."

4. Thereafter, this case was listed on
10.04.2024 before this Court and following
order was passed:-

"In compliance of the order dated
03.04.2024, Sri Himanshu Tiwari as well as
Ms. Madhu Tiwari are present in person
before this Court. They have been identified
by their counsel Sri Nadeem Murtaza.
However, Ms. Mitali Tiwari is not present
owing to some illness, however, her counsel
Sri Anand Kumar Srivastava is present.

Sri Himanshu Tiwari has brought
a demand draft of Rs.5,00,000/- drawn at
the ICICI Bank, Lucknow dated 09.04.2024
in favour of Mitali Tiwari. Photocopy of the
same has been seen and signed by Sri Anand
Kumar Srivastava, learned counsel for the
Mitali Tiwari, which is taken on record.

Sri Anand Kumar Srivastava,
Advocate seeks some further time so that
original draft may be handed over to Mitali
Tiwari.

Sri Nadeem Murtaza, Advocate
has no objection to the prayer made by Sri
Anand Kumar Srivastava, Advocate.

Accordingly, put up this case on
18.04.2024 alongwith connected matter
before this Court for further orders.

On the next date of listing, Ms.
Mitali Tiwari, Ms. Madhu Tiwari and Sri
Himanshu Tiwari shall again appear in
person before this Court. Sri Himanshu
Tiwari shall again bring the aforesaid bank
draft on that day so that the same may be
handed over to Mitali Tiwari."

Again this case was listed on
18.04.2024 before this Court and following
order was passed:-

"The present applications are
filed by the respective parties against each
other and both these applications are
arising out of counter cases filed by the
respective parties, thus, the Coordinate
Bench of this Court clubbed these two
application with the consent of both the
parties vide order dated 12.03.2024. This
Court is treating Application U/S 482
No.4095 of 2023 as leading case and is
proceeding accordingly.

Vakalatnama filed today in the
Court by Mr. Himanshu Suryavanshi,
Advocate on behalf of applicant-Ms. Mitali
Tiwari and others in Application U/S 482
No.3121 of 2022 is taken on record.

Heard Mr. Nadeem Murtaza,
learned Counsel for the applicant, namelyMadhu Tiwari, Mr. Alok Saran, Advocate
alongwith Ms. Swati Singh, Advocate
holding brief of Mr. Himanshu Suryavanshi,
learned Counsel for the opposite party No.2,
Mr. Ashok Kumar Singh, learned A.G.A-I
for the State-opposite party.

In compliance of the orders dated
03.04.2024 and 10.04.2024 passed by this
Court, the applicant, namely-Ms. Madhu
Tiwari alongwith her son, namely-Mr.
Himanshu Tiwari and the opposite party
No.2, namley-Ms. Mitali Tiwari (wife of Mr.
Himanshu Tiwari) are present before this
Court, who have been identified by their
respective counsel and Mr. Himanshu
Tiwari has brought an original demand
draft of Rs.5,00,000/- (Rupees Five Lacs
Only), which was seen and verified by
learned Counsel for the opposite party No.2
and the same was handed over to the
opposite party No.2, namely-Mitali Tiwari
in the open court. The opposite party No.2
gave a receiving of the same on the
photostat copy, which is taken on record.

The applicant and her son,
namely-Mr. Himanshu Tiwari have shown
their bonafide by handing over the demand
5 All. Madhu Tiwari Vs. State of U.P. & Ors.
597
draft of Rs.5,00,000/- (Rupees Five Lacs
Only) to the opposite party No.2 as directed
by this Court. Now, only Rs.5.00,000/-
(Rupees Five Lacs Only) is to be paid to the
opposite party No.2, namely-Ms. Mitali
Tiwari.

Both the parties and their counsel
submit before this Court that they have
decided to file a petition under Section 13(B)
of the Hindu Marriage Act for separation of
both the parties for their better life ahead.
They further submit that the said petition
will be filed before the concerned Family
Court within 15 days' from today.

Before
concluding
their
arguments, learned Counsel for the parties
further submit that some suitable order may
be passed regarding the visitation rights to
the father of the minor child, namelyShambhavi Tiwari, D/o of Ms. Mitali Tiwari
and Mr. Himanshu Tiwari.

Learned A.G.A-I for the Stateopposite party No.1 has no objection to the
proposals made by learned Counsel for the
parties.

In view of the above, as agreed
between the parties present in person before
this Court, they are permitted to file a
petition under Section 13(B) of the Hindu
Marriage Act within 15 days' from today
and if any such petition is filed before the
concerned Family Court, the Family Court
will decide the said petition in compliance of
the order dated 03.04.2024 passed by this
Court in this case. It is further directed that
after filing of the said petition, learned
Counsel for the applicant will file a
supplementary affidavit annexing therein
the photostat copy of the said petition so
filed by the parties before the concerned
Family Court on the next date of listing.

It is further observed here that
remaining amount of Rs.5,00,000/- (Rupees
Five Lacs Only), which was promised by Mr.
Himanshu Tiwari to be paid to the opposite
party No.2 will be paid to her within ten
days' from the date of passing of decree of
divorce.

So far as the visitation right is
concerned, Mr. Himanshu Tiwari, husband
of Ms. Mitali Tiwari shall have visitation
rights to meet his daughter once every
month on the Fourth Sunday between 11:00
A.M. to 1:30 P.M. at Saharaganj Mall,
Lucknow starting from the Month of April,
2024 by giving one day prior intimation to
the opposite party No.2, Ms. Mitali Tiwari,
who is the mother of the minor child.
Further, Mr. Himanshu Tiwari, shall also
have right to talk to his daughter on every
1st and 4th Saturday of the every Month
between 7:30 P.M. to 8:00 P.M. on
whatsapp/phone call on mobile of Ms. Mitali
Tiwari.

Accordingly, list/put up this case
on 25.04.2024 before this Court for further
orders."

5. Again this case was listed before this
Court on 25.04.2024 and this Court has
passed the following order:-

"In compliance of the orders
dated 03.04.2024 and 18.04.2024 passed by
this Court, learned counsel for the opposite
party No.2 Sri Nadeem Murtaza has filed
supplementary affidavit today in Court, in
which he has given the details, in paragraph
Nos. 9 and 10, of the cases filed by each of
the parties either to be quashed by this
Court or the cases should be withdrawn by
the parties before the competent court,
where the case is pending and he has also
filed the settlement agreement as well as the
certified copy of the petition filed under
Section 13 B of the Hindu Marriage Act filed
before the court of Principal Judge, Family
Court, Lucknow, which is annexed as
Annexure No.3 to the supplementary
affidavit.
598 INDIAN LAW REPORTS ALLAHABAD SERIES

Learned counsel for the applicant
submits that the parties have already settled
the dispute, thus a positive direction be
given to the Principal Judge, Family Court,
Lucknow to decide the petition filed by the
parties under Section 13 B of the Hindu
Marriage Act expeditiously in view of the
judgment rendered by Hon'ble Supreme
Court in the case of Amardeep Singh Vs.
Harveen Kaur: AIR 2017SC 4417 and
further order passed by the Division Bench
of this Court in First Appeal Defection No.
392 of 2019: Shalini Massey Vs. Neeraj
Samuel Dass decided on 07.01.2020.

Sri Alok Saran as well as Sri
Himanshu Suryavanshi, learned counsel for
the opposite party No.2 made a agreement
with the request and proposal made by
learned counsel for the applicant.

The request and proposal made by
the both the counsels as well as the parties
appears to be genuine and the final order in
this regard will be passed on the next date
fixed.

List this case on 30.04.2024 for
further orders along with record of
Application under Section 482 Cr.P.C. No.
5104 of 2021 and Application under Section
482 Cr.P.C. No. 3121 of 2022."

6. Sri Nadeem Murtaza, learned
counsel for Himanshu Tiwari submits that
both the parties have arrived at a settlement,
copy of the settlement agreement dated
20.04.2024 is annexed as Annexure No.SA2 to the supplementary affidavit. He further
submits that in pursuance of this Court's
order dated 03.04.2024, the parties have
mutually filed a divorce petition under
Section 13(B) of Hindu Marriage Act before
the learned Principal Judge, Lucknow on
20.04.2024, copy of the petition is Annexed
as Annexure No.SA-3 to the supplementary
affidavit.
He
further
submits
that
Rs.5,00,000/- has already been paid to the
wife and as per agreement the remaining
amount of Rs.5,00,000/- will also be paid by
the husband Himanshu Tiwari to the wife
Mitali Tiwari within ten days after the
passing of divorce decree. Thus, he submits
that entire proceeding of the cases pending
between both the parties which are
mentioned at paragraph No.10 of the
supplementary affidavit from serial no. I to
X may be quashed and the learned Principal
Judge, Family Court, Lucknow be directed
to decide the divorce petition of the parties
filed under Section 13(B) of the Hindu
Marriage Act in light of the judgment
rendered by Hon'ble Supreme Court in the
case of Amardeep Singh Vs. Harveen
Kaur: AIR 2017 SC 4417 and further order
passed by the Division Bench of this Court
in First Appeal Defective No. 392 of 2019:
Shalini Massey Vs. Neeraj Samuel Dass
decided on 07.01.2020. He further submits
that Civil Contempt CAPL No.510 of 2022
"Himanshu Tiwari & Anr. Vs. Mitali
Tiwari" filed by Himanshu Tiwari had
already been dismissed as withdrawn by a
co-ordinate Bench of this Court vide order
dated 29.04.2024. Paragraph Nos. 19 and 20
of
Amardeep
Singh
(Supra)
are
reproduced hereinunder:-

"19. Applying the above to the
present situation, we are of the view that
where the court dealing with a matter is
satisfied that a case is made out to waive the
statutory period under Section 13-B(2), it
can do so after considering the following:

(i) the statutory period of six
months specified in Section 13-B(2), in
addition to the statutory period of one year
under Section 13-B(1) of separation of
parties is already over before the first
motion itself;

(ii)
all
efforts
for
mediation/conciliation including efforts in
terms of Order 32-A Rule 3 CPC/Section
5 All. Madhu Tiwari Vs. State of U.P. & Ors.
599
23(2) of the Act/Section 9 of the Family
Courts Act to reunite the parties have failed
and there is no likelihood of success in that
direction by any further efforts;

(iii) the parties have genuinely
settled their differences including alimony,
custody of child or any other pending issues
between the parties;

(iv) the waiting period will only
prolong their agony.

The waiver application can be
filed one week after the first motion giving
reasons for the prayer for waiver. If the
above conditions are satisfied, the waiver of
the waiting period for the second motion will
be in the discretion of the court concerned.

20. Since we are of the view that
the period mentioned in Section 13-B(2) is
not mandatory but directory, it will be open
to the court to exercise its discretion in the
facts and circumstances of each case where
there is no possibility of parties resuming
cohabitation and there are chances of
alternative rehabilitation."

Further, this Court has been
pleased to observe paragraph No.12 in the
case of Shalini Massey (Supra) which is
reproduced hereinunder:-

"12. The provisions contained in
Section 10A of the Divorce Act, 1869, are,
in substance, a verbatim reproduction of
the provisions contained in Section 13B of
the Hindu Marriage Act, 1955 and Section
28 of the Special Marriage Act, 1954. The
only substantial difference is that, instead
of the period of one year mentioned in
Section 13B(1) of the Hindu Marriage Act,
1955 and Section 28(1) of the Special
Marriage Act, 1954, a period of two years
of separate residence is provided under
Section 10A(1) of the Divorce Act, 1869.
The
beneficiaries
under
the
abovementioned provisions of different
statutes are persons who want divorce by
mutual consent and who file joint petition
for
that
relief.
There
can
be
no
discrimination among them on the ground
of religion. Divorce by mutual consent is
a secular concept. When the Apex Court
has declared the law that the "cooling off
period" of six months provided under
Section 13B(2) of the Hindu Marriage Act,
1955 is not mandatory but directory and
such period can be allowed to be waived
by the court on satisfaction of certain
conditions, denying that benefit to persons
who are governed by the Divorce Act,
1869
would
amount
to
unjust
discrimination. Therefore, we are of the
considered opinion that the dictum laid
down by the Apex Court in Amardeep
Singh (supra) is applicable to a petition
for divorce filed under Section 10A of the
Divorce Act, 1869 and on satisfaction of
the conditions laid down in that decision,
the Family Court can waive the period of
six months stipulated under Section
10A(2) of that Act.

In
view
of
the
foregoing
discussion, we find that but for the
difference in period provided for making the
second motion, the provisions of Section
13B (1) of Act of 1955 and 28 (1) of the Act
of 1954 and 10A (1) of the Act, the aforesaid
provisions are verbatim reproduction of
each other. Since the Hon'ble Apex Court
while considering the question whether the
minimum period of six months stipulated u/s
13B (2) of Act of 1955 in the case of
Amardeep Singh v. Harveen Kaur reported
in AIR 2017 SC 4417, for a motion for
passing decree of divorce on the basis of
mutual consent is mandatory or directory
and whether such period can be relaxed in
exceptional situations or circumstances,
held that the period mentioned in Section
13B (2) of Act of 1955 is not mandatory but
directory and it will be open to the Court to
exercise its discretion in the facts and
circumstances of each case where there is
600 INDIAN LAW REPORTS ALLAHABAD SERIES
no
possibility
of
parties
resuming
cohabitation and there are chances of
alternative rehabilitation.

We have no hesitation in holding
that the view taken by the Kerala High Court
in the case of TOMY JOSEPH (supra) that
the dictum laid down by the Apex Court in
Amardeep Singh (supra) is applicable to a
petition for divorce filed u/s 10A of the Act
and on satisfaction of the conditions laid
down in that decision, the Family Court can
waive the period of six months stipulated u/s
10A (2) of the Act."

7. Sri Alok Saran and Sri Himanshu
Suryavanshi, learned counsel for the Mitali
Tiwari and Sri Ashok Kumar Singh, learned
A.G.A.-I for the State have submitted that
since the parties have already arrived at a
settlement and there is no dispute that the
parties have filed a petition under Section
13(B) of the Hindu Marriage Act for
mutual divorce and the husband, namely,
Himanshu
Tiwari
has
also
given
Rs.5,00,000/- to the wife, namely, Mitali
Tiwari and remaining amount will be
given to the wife within ten days after the
decree of divorce is passed. They have
also confirmed this fact that Civil
Contempt
CAPL
No.510
of
2022
"Himanshu Tiwari & Anr. Vs. Mitali
Tiwari" filed by Himanshu Tiwari had
already been dismissed as withdrawn by a
co-ordinate Bench of this Court vide order
dated 29.04.2024. Thus, they submit that
no useful purpose would be served if the
proceedings of the cases pending against
each other go on further before the trial
court and the same may also be quashed by
this Hon'ble Court.

8. Learned counsel for the parties have
drawn the attention of this Court and placed
reliance on the judgment of the Hon'ble
Apex Court in support of their case.

(i) B.S. Joshi Vs. State of
Haryana & Others 2003 (4) ACC 675.

(ii) Gian Ssingh Vs. State of
Punjab 2012 (10) SCC 303.

(iii) Dimpey Gujral And Others
Vs.
Union
Territory
Through
Administrator 2013 (11) SCC 697.

(iv) Narendra Singh And Others
Vs. State of Punjab And Others 2014

(6) SCC 466.

(v)
Yogendra
Yadav
And
Others Vs. State of Jharkhand 2014 (9)
SCC 653.

9. Summarizing the ratio of all the
above cases the latest judgment pronounced
by Hon'ble Apex Court in the case of
Parbatbhai
Aahir
@
Parbatbhai
Bhimsinhbhai Karmur & Ors. Vs. State
of Gujarat & Anr,; reported in (2017) 9
SCC 641 and in paragraph no.16, the
Hon'ble Apex Court has summarized the
broad principles with regard to exercise of
powers under Section 482 Cr.P.C. in the
case of compromise/settlement between the
parties which emerges from precedent of the
subjects as follows:-

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 recognizes 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
5 All. Madhu Tiwari Vs. State of U.P. & Ors.
601
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 arises 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;

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."

10. The Apex Court has also laid down
the
guidelines
where
the
criminal
proceedings could be interfered and quashed
in exercise of its power by the High Court in
the following cases:-(i) R.P. Kapoor Vs.
State of Punjab, AIR 1960 S.C. 866, (ii)
State of Haryana Vs. Bhajanlal, 1992
SCC (Crl.)426, (iii) State of Bihar Vs. P.P.
Sharma, 1992 SCC (Crl.)192 and (iv)
Zandu Pharmaceutical Works Ltd. Vs.
Mohd. Saraful Haq and another, (Para10) 2005 SCC (Cri.) 283.

11. From the aforesaid decisions the
Apex Court has settled the legal position for
quashing of the proceedings at the initial
stage. The test to be applied by the court is
602 INDIAN LAW REPORTS ALLAHABAD SERIES
to whether uncontroverted allegation as
made prima facie establishes the offence and
the chances of ultimate conviction is bleak
and no useful purpose is likely to be served
by allowing criminal proceedings to be
continued. In S.W. Palankattkar & others
Vs. State of Bihar, 2002 (44) ACC 168, it
has been held by the Hon'ble Apex Court
that quashing of the criminal proceedings is
an exception than a rule. The inherent
powers of the High Court under Section 482
Cr.P.C itself envisages three circumstances
under which the inherent jurisdiction may be
exercised:-(i) to give effect an order under
the Code, (ii) to prevent abuse of the process
of the court ; (iii) to otherwise secure the
ends of justice. The power of High Court is
very wide but should be exercised very
cautiously to do real and substantial justice
for which the court alone exists.

12. With the assistance of the aforesaid
guidelines, keeping in view the nature and
gravity and the severity of the offence which
are more particularly is private dispute and
differences and a petition under Section
13(B) of the Hindu Marriage Act has already
been filed for mutual divorce. It is deem
proper and meet to the ends of justice. The
proceeding of the cases filed between the
parties be quashed by this Court.

13. Keeping in view the law laid down
by the Hon'ble Apex Court in the above
referred judgment and in view of the
statement/compromise made by the parties
and the observation made above, the entire
proceedings of following cases are hereby
quashed so far as it relates to the instant
parties.

I. Criminal Complaint Case
No.1882 of 2020, under Sections 323, 504,
506 I.P.C. "Madhu Tiwari Vs. Mitali
Tiwari and 6 Ors." filed by Madhu Tiwari
pending before learned court of Judicial
Magistrate-III, Lucknow.

II. Criminal Misc. Case No.179
of 2016, under Section 12 of Domestic
Violence Act "Madhu Tiwari Vs. Munish
Chandra Pandey & Ors." filed by Madhu
Tiwari pending before learned court of
Additional Chief Judicial Magistrate-II,
Lucknow.

III.
Case
No.22281/2017
alongwith entire State proceedings arising
out of Crime No.101/2015, under Sections
498-A, 323, 406, 504, 506 I.P.C. and
Section 3⁄4 of Dowry Prohinition Act
lodged at Police Station Mahila Thana,
District Lucknow "State Vs. Himanshu
Tiwari & Ors." pending before the learned
court of Civil Judge, F.T.C. (CAW),
Lucknow.

IV.
Criminal
Misc.
Case
No.789/2016 registered as 158/2016,
under Section 12 of Domestic Violence
Act "Mitali Tiwari Vs. Himanshu Tiwari
& Ors", filed by Mitali Tiwari alongwith
minor
daughter
Shambhavi
Tiwari
pending before learned court of Additional
Chief Judicial Magistrate-II, Lucknow.

V. Application under Section
482 Cr.P.C. No.3121/2021 "Mitali Tiwari
& Ors. Vs. State of U.P. and Anr." filed by
Mitali Tiwari alongwith her family
members pending before this Court.

VI.
Criminal
Misc.
Case
No.1478/2015, under Section 125 Cr.P.C.
"Mitali Tiwari & Anr. Vs. Himanshu
Tiwari" filed by Mitali Tiwari alongwith
daughter
Shambhavi
Tiwari
pending
before
court
of
learned
Additional
Principal Judge-I, Lucknow.

VII. Criminal Complaint Case
No.80963
of
2023,
Police
Station
Madiayon, District Lucknow filed by
Himanshu Tiwari pending before learned
Court
of
Additional
Chief
Judicial
Magistrate-II, Lucknow.
5 All. Akhilesh Kumar Sachan & Ors. Vs. State of U.P. & Ors.
603

VIII. Criminal Revision No.687 of
2019 filed by Himanshu Tiwari pending
before the learned Court of Additional
Sessions Judge-I, Lucknow.

IX. Criminal Appeal No.115 of
2023, under Section 341 Cr.P.C. "Himanshu
Tiwari Vs. State & Anr. Filed by Sri
Himanshu Tiwari pending before learned
court of Additional Sessions Judge-XV,
Lucknow.

X. Civil Misc. Case No.210/2019,
under Section 25 of Guardians and Wards
Act, 1890 r/w Section 6(a) of The Hindu
Adoptions and Maintenance Act, 1956
pending before learned court of Additional
Principal Judge-I, Lucknow.

14. Learned Principal Judge, Family
Court, Lucknow is also directed to decide
the decree of divorce filed by the parties
bearing Case No.1220 of 2024, under
Section 13(B) of the Hindu Marriage Act
within two months from the date of filing of
certified copy of this judgment before it by
diluting the period of motions in view of the
judgment of Hon'ble Supreme Court in the
case of Amardeep Singh (Supra) and
Division Bench of this Court in the case of
Shalini Massey (Supra).

15. Learned Additional Principal
Judge-I, Family Court, Lucknow is also
directed to handover Rs.62,000/- to the wife,
namely, Mitali Tiwari within 20 days from
the date of pronouncement of this judgment,
which has been deposited by Himanshu
Tiwari
on
29.04.2024
in
Case
No.1478/2015, under Section 125 Cr.P.C.

16. The husband, namely, Himanshu
Tiwari is also directed to give Rs.5,00,000/-
to the wife, namely, Mitali Tiwari within ten
days after the decree of divorce under
Section 13(B) of the Hindu Marriage Act is
passed.

17. With the aforesaid directions, the
instant applications under Section 482
Cr.P.C. stands allowed and the proceedings
of the cases challenged in these applications
as well as the reference of the cases given in
paragraph No.13 of this judgment are hereby
quashed.
----------
(2024) 5 ILRA 603
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.05.2024

BEFORE

THE HON'BLE MRS. RENU AGARWAL, J.

Application U/S 482. No. 4282 of 2024

Akhilesh Kumar Sachan & Ors.
 ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicants:
Sanjay Kumar Srivastava, Akshat Kumar

Counsel for the Opposite Parties:
G.A.

Criminal
Law-Criminal
Procedure
Code,1973-Section
482-Indian
Penal
Code,1860-Section 447 - Prevention of
Damage of Public Property Act, 1984section 2/3-challenge to -summoning
order-demarcation of land-the petitioners
claimed ownership of Gata No. 437, which
they purchased through registered sale
deeds, while the State alleged that they
had encroached on the adjacent public land
i.e.
Gata
no.
436-Held,
the
court
determined
that
the
issue
was
fundamentally a civil land dispute not a
criminal matter-the demarcation of land,
ordered by the court, could not be
completed due to the lack of fixed
boundary points-The prosecution failed to
prove any intent to commit criminal
offence, a requirement for a conviction u/s
447 IPC. (Para 1 to 22) (E-6)