# Sri Munish Jain v. State of U.P. & Anr

- **Citation:** (2020) 6 ILRA 115
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-06
- **Case number:** Application U/S 482 No. 5330 of 2012
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-munish-jain-v-state-of-u-p-anr-45758
- **Pages:** 5

## Headnote

Criminal Law - Criminal Procedure Code (2
of 1974) - Section 320 - Compounding of
offence - Indian Penal Code (45 of 1860),
S.498A, S.323, S.504, S.506, S.408 - Quashing
of proceedings on ground of compromise - for
compounding, as per Section 320 Cr.P.C., the
fact of compromise, entered voluntarily and duly
verified by Magistrate, in presence of both sides,
is required

In mediation between parties before Delhi High
Court it was agreed that husband will unite with
his family and he will live together and on this
assurance, mediation agreement was entered -
however this was not complied with by husband
rather a divorce petition by husband was filed
before Delhi High Court - Held - Admittedly,
neither parties filed compromise duly and freely
entered in between before court of Magistrate,
before whom trial was pending nor it was
verified by trial court concerned - Proceedings,
not liable to be quashed (Para 12)

Application dismissed. (E-5)

List of case cited :
Gian Singh Vs St. of Punj. (2012)10 SCC 303

## Text

6 All. Sri Munish Jain Vs. State of U.P. & Anr.
115

19.

Considering
facts
and
circumstances of the case, allegation
made
in
complaint,
statement
of
complainant
and
witnesses
under
Sections
200
and
202
Cr.P.C.
respectively
and
legal
preposition
discussed herein before, application
under Section 482 Cr.P.C. fails and is
accordingly dismissed.
----------
(2020)06ILR A115
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.03.2020

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 No. 5330 of 2012

Sri Munish Jain ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Sri Ranjit Saxena, Sri Ajay Kumar Pathak,
Sri V.S. Kushwaha

Counsel for the Opposite Parties:
A.G.A., Sri Arun Kumar Singh, Sri Dhruv
Narayan Misra, Sri Digvijay Singh, Sri R.P.
Mishra, Sri Rajul Bhargava, Ms. Zia Naz
Zaidi, Sri Rajesh Kumar Mishra

Criminal Law - Criminal Procedure Code (2
of 1974) - Section 320 - Compounding of
offence - Indian Penal Code (45 of 1860),
S.498A, S.323, S.504, S.506, S.408 - Quashing
of proceedings on ground of compromise - for
compounding, as per Section 320 Cr.P.C., the
fact of compromise, entered voluntarily and duly
verified by Magistrate, in presence of both sides,
is required

In mediation between parties before Delhi High
Court it was agreed that husband will unite with
his family and he will live together and on this
assurance, mediation agreement was entered -
however this was not complied with by husband
rather a divorce petition by husband was filed
before Delhi High Court - Held - Admittedly,
neither parties filed compromise duly and freely
entered in between before court of Magistrate,
before whom trial was pending nor it was
verified by trial court concerned - Proceedings,
not liable to be quashed (Para 12)

Application dismissed. (E-5)

List of case cited :
Gian Singh Vs St. of Punj. (2012)10 SCC 303

(Delivered by Hon'ble Ram Krishna Gautam, J.)

1. This Application, under Section
482 / 483 Cr.P.C., has been filed by
applicant with a prayer for setting aside the
order dated 01.08.2009, passed in Criminal
Case No. 987 of 2009, State Vs. Manish
Jain, under Sections 498-A, 323, 504, 506,
408
I.P.C.
and
Section
3/4
Dowry
Prohibition Act, P.S. Hathras Gata, District
Mahamayanagar.

2. Learned counsel for applicant
argued that there had been a mediation in
between, wherein Delhi High Court passed
following order:-

"...The respondent, who is present
in Court, submits that she is ready and
willing to withdraw all pending cases. In
respect of the F.I.R. lodged against the
petitioner under Section 498-A I.P.C. etc.,
she submits that the petition had been
drafted and had been provided to the
petitioner. The petitioner submits that he
has filed his own petition before the
Allahabad High Court under Section 482 of
the Cr.P.C. being Crl. M.A. No.5330 of
2012. A copy of the order dated 10.2.2012
passed in those proceedings has been
shown to the Court. It appears that the
Court has directed the listing of the case
after the expiry of four weeks time which
116 INDIAN LAW REPORTS ALLAHABAD SERIES
was granted for filing of the counter
affidavits. Since the period has expired, it
appears that it is open to the parties to
now again approach the Allahabad High
Court to have the F.I.R. quashed. The
parties agree that they would jointly move
an application before the Allahabad for
that purpose without any delay. The
respondent states that she is willing to
accompany the petitioner in the next week
itself for moving the said application...."

It appears that this matrimonial
dispute has been taken to mediation centre,
Tis Hazari Court, Delhi wherein following
compromise was filed:-

"The present suit for performance
injunction has been referred by referral judge
Shri Rakesh Kumar-I, CJ, Delhi and assigned
to me for mediation. Process of Mediation
explained. Matter discussed in joint session.
After mutual discussions both the parties have
reached at an amicable settlement on the
following terms and condition:

(1) That the respondent is owner of
flat in question i.e. B-403, Plot No.4 and 6,
Sector 17, Sampada, Sea Wood Garden, Navi
Mumbai. It is agreed between both the parties
that one key of the flat would be remained with
plaintiff and one key with defendant.

(2) That the Plaintiff can live in the
above mentioned flat with her children and
respondent can visit and see her children any
time as and when he wishes and also he can
live with their children and wife but for the first
yer only wife will live with her children.

(3) Approximately Rs.20 lacs mutual
fund, NSC, KVP and FDR's in the name of
petitioner which defendant has deposited and
will give to petitioner upto 25 th January, 2010.

(4) Respondent will deposit Rs.1 lac
in the bank account of petitioner on 01.01.2010.

(5) After getting job the respondent
will give Rs.25,000/-to 30,000/- to the petitioner
towards maintenance of wife and children.

(6) That the parties will withdraw the
following cases:

(a) Complaint under sections 498-A,
406, 34 I.P.c. on the date fixed i.e. 16.2.2010.

(b) Complaint under Section 125
Cr.P.C. on the date fixed i.e. 17.2.2010.

(c) Complaint under Section 12 of
D.V. Act on the date fixed i.e. 15.01.2010.

(d) Above mentioned suit on date
fixed i.e.23.01.2010

(e) The respondent will withdraw
complain case under Section 323 I.P.C. on
the date fixed i.e. 06.01.2010.

(7) That both the parties will live
happily from today and will not file any
case/complaint against each other. This is
the full and final settlement between the
parties and all the above mentioned cases
will be withdrawn on the date fixed in the
concerned court."

3. Despite this order, opposite party
no. 2 has not filed joint affidavit before trial
court.
Applicant
has
given
an
accommodation for residence, in view of
above mediation agreement, wherein she is
residing. Huge amount of money has also
been given to opposite party no. 2. But, in
disregard of above settlement, entered in
between, opposite party no. 2 is making
hindrance in disposal of this case, whereas
in a proceeding, in between, High Court of
Delhi, has passed order on 06.09.2012 that
respondent was present in Court and
submitted that she is ready and willing to
withdraw all pending cases in respect of
F.I.R. lodged against petitioner under
Section 498-A I.P.C. etc. She had submitted
that mediation had been drafted and had
been provided to the petitioner. The
petitioner submitted that he had filed his
own application before Allahabad High
Court under Section 482 Cr.P.C. being
Criminal Misc. Application No. 5330 of
2012. Meaning thereby, there had been
6 All. Sri Munish Jain Vs. State of U.P. & Anr.
117
mediation. Terms were agreed. It was there
that this criminal proceeding shall be
withdrawn. Opposite party no. 2 had made
settlement before Delhi High Court in
CONT. CAS(C) 789/2011 & CM APPL.
19484 of 2011 & CM APPL. 19793/12;
Shikha Jain through Mr. A.K. Tripathi,
Advocate Versus Munish Jain through Mr.
Sunil Satyarthi, Advocate, but the recital
entered in between is being retracted by
opposite party no. 2, which she can never
retract. This Court had ordered for disposal
of this case, after disposal of Transfer
Application, moved before apex court. The
apex court vide order dated 21st February,
2017,
passed
in
Transfer
Petition
(Criminal) No. 45 of 2016; Shikha Jain Vs.
Munish Jain and another, has dismissed the
transfer application with an option to the
petitioner to approach this High Court for
expeditious hearing of matter. Hence, now
nothing remained for adjudication, but to
quash the proceeding in view of agreement
entered in mediation, in this matrimonial
dispute, in view of law laid down in Gian
Singh v. State of Punjab, (2012) 10 SCC
303.

4. Smt. Shikha Jain, in person, argued that
mediation proceeding was taken at Delhi High
Court. Therein agreement was there. Terms
argued were very well there. The same were
accepted before Delhi High Court, in above
alleged proceeding. But this agreement was to
reunite the family. It was very well written in
mediation proceeding that husband will unite
with his family and he will live together and on
this assurance, above mediation agreement was
occurred. But this was not complied with by
husband. Money given was nothing new to be
given, rather the fixed deposits and other
securities, which were already in her name and
were under custody of husband, were agreed
and delivered to opposite party no. 2. A divorce
petition by husband has been filed before Delhi
High Court. Hence, mediation was denied by
husband
himself
and
in
this
criminal
proceeding, no compromise was entered, in
view of above defiance. Hence, this petition be
dismissed.

5. Apex court in Gian Singh v. State of
Punjab, (2012) 10 SCC 303 as well as many
other cases has propounded that in matrimonial
disputes, if the parties are amenable to
compromise, then, even if offence, punishable
under Section 498-A I.P.C. i.e. cruelty with
regard to dowry, is not compoundable by
Legislature, High Court of Judicature in
exercise of inherent jurisdiction under Section
482 Cr.P.C. may quash proceeding for peaceful
living of family. This power is there in High
Court, under Section 482 Cr.P.C.

6. Section 320 of the Code articulates
public policy with regard to the compounding
of offences. It catalogues the offences
punishable
under
IPC
which
may
be
compounded by the parties without permission
of the Court and the composition of certain
offences with the permission of the court. The
offences punishable under the special statutes
are not covered by Section 320. When an
offence is compoundable under Section 320,
abatement of such offence or an attempt to
commit such offence or where the accused is
liable under Section 34 or 149 of the IPC can
also be compounded in the same manner. A
person who is under 18 years of age or is an
idiot or a lunatic is not competent to contract
compounding of offence but the same can be
done on his behalf with the permission of the
court. If a person is otherwise competent to
compound an offence is dead, his legal
representatives may also compound the offence
with the permission of the court. Where the
accused has been committed for trial or he has
been convicted and the appeal is pending,
composition can only be done with the leave of
the court to which he has been committed or
118 INDIAN LAW REPORTS ALLAHABAD SERIES
with the leave of the appeal court, as the case
may be. The revisional court is also competent
to allow any person to compound any offence
who
is
competent
to
compound. The
consequence of the composition of an offence is
acquittal of the accused. Sub-section (9) of
Section 320 mandates that no offence shall be
compounded except as provided by this
Section. Obviously, in view thereof the
composition of an offence has to be in accord
with Section 320 and in no other manner.

7. Compounding of offence, as has been
given by Legislature in Section 320 Cr.P.C., has
given first table, wherein few of offences are to
be compounded, upon the consent and option of
victims. In the second table, offences are
compoundable on the option of victim with
permission of Court concerned. Those offences
are of grave nature, but with permission of
Court, offence given in second table, may be
compounded. Regarding those offences, which
have not been compoundable, under provision
of Legislature, this law has been developed by
apex court that where union of family seems to
be probable and the dispute is of matrimonial
nature and they are not of heinous offence, then
in the interest of justice, with a view to avoid
children from any ruin, out of dispute in
between parents, the offence punishable under
Section 498-A I.P.C or likewise, which are not
of grave consequences and effect into society,
may be quashed, in exercise of inherent
jurisdiction of High Court acknowledged under
Section 482 Cr.P.C. Under this provision of law,
developed by Hon'ble Apex Court, quashing of
proceeding for offence of dowry demand and
cruelty etc., where compromise has been
entered in between, are being made by High
Court, though it is not within domain of trial
court Magistrate or Sessions Judge.

8. Section 482 of the Code, as its very
language suggests, saves the inherent power of
the High Court which it has by virtue of it being
a superior court to prevent abuse of the process
of any court or otherwise to secure the ends of
justice. It begins with the words, ''nothing in this
Code' which means that the provision is an
overriding provision. These words leave no
manner of doubt that none of the provisions of
the Code limits or restricts the inherent power.
The guideline for exercise of such power is
provided in Section 482 itself i.e., to prevent
abuse of the process of any court or otherwise
to secure the ends of justice. As has been
repeatedly stated that Section 482 confers no
new powers on High Court; it merely
safeguards existing inherent powers possessed
by High Court necessary to prevent abuse of the
process of any Court or to secure the ends of
justice. It is equally well settled that the power
is not to be resorted to if there is specific
provision in the Code for the redress of the
grievance of an aggrieved party. It should be
exercised very sparingly and it should not be
exercised as against the express bar of law
engrafted in any other provision of the Code.

9. In different situations, the inherent
power may be exercised in different ways to
achieve its ultimate objective. Formation of
opinion by the High Court before it exercises
inherent power under Section 482 on either of
the twin objectives, (i) to prevent abuse of the
process of any court or (ii) to secure the ends of
justice, is a sine qua non.

10. In the very nature of its constitution, it
is the judicial obligation of the High Court to
undo a wrong in course of administration of
justice
or
to
prevent
continuation
of
unnecessary judicial process. This is founded on
the legal maxim quando lex aliquid alicui
concedit, conceditur et id sine qua res ipsa esse
non potest. The full import of which is
whenever anything is authorised, and especially
if, as a matter of duty, required to be done by
law, it is found impossible to do that thing
unless something else not authorised in express
6 All. Smt. Savita Devi @ Savitri Singh & Anr. Vs. State of U.P. & Anr.
119
terms be also done, may also be done, then that
something else will be supplied by necessary
intendment. Ex debito justitiae is inbuilt in such
exercise; the whole idea is to do real, complete
and substantial justice for which it exists. The
power possessed by the High Court under
Section 482 of the Code is of wide amplitude
but requires exercise with great caution and
circumspection.

11. It needs no emphasis that exercise of
inherent power by the High Court would
entirely depend on the facts and circumstances
of each case. It is neither permissible nor proper
for the court to provide a straitjacket formula
regulating the exercise of inherent powers under
Section 482. No precise and inflexible
guidelines can also be provided.

12. In present case, the compromise
agreed at Mediation Centre of Delhi High
Court, is with specific recital that family will
unite. Husband and wife along with children
will reunite and all cases filed by wife including
that civil case, wherein mediation was referred,
will be withdrawn. There were all prospective
acts to be taken, but this all was with prime
condition of union of family, but admittedly
union of family did not occur, rather a
proceeding for divorce has been filed and is
pending. Hence, the terms, for which, there was
mediation and agreement, could not be fulfilled.
The mediation proceeding took place on the
reference made in a civil case by Civil Judge
before Mediation Centre of Delhi High Court,
wherein other cases were also taken in
reference including present case. Parties entered
in agreement that the family will unite.
Husband and wife along with children will live
together and wife will withdraw her all cases.
Money etc., as per above agreement written, as
above, was to be exchanged. But, admittedly
the union of family could not be happened,
rather divorce petition has been filed by
husband. Hence, above mediation agreement
could not be complied by both sides. But, in this
criminal case, for compounding, as per Section
320 Cr.P.C., the fact of compromise, entered
voluntarily and duly verified by Magistrate, in
presence of both sides, is required and the same
is not there. Admittedly, neither parties have
filed a compromise duly and freely entered in
between before court of Magistrate, before
whom this trial is pending nor it has been
verified by trial court concerned. Hence, this
Court, in exercise of inherent jurisdiction, under
Section 482 Cr.P.C., is not to embark upon
question of fact, because it may prejudice fair
trial and it remain within domain of trial court,
which is to be decided on the basis of evidence
led by parties before trial court, but apparently
there was an F.I.R. of demand of dowry
coupled with cruelty and it was registered as
case crime number, wherein investigation was
made. There was statement of informant victim
with other witnesses, examined under Section
161 Cr.P.C., and on the basis of these evidence,
collected by Investigating Officer, charge sheet
was submitted, whereupon cognizance has been
taken by Magistrate concerned. Hence, prima
facie there was evidence for taking of
cognizance and it was taken. Now compromise
is not there. Hence, nothing appears to be abuse
of process of law. Accordingly, this application
merits its dismissal. The application is
dismissed as such.
----------

(2020)06ILR A119
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.02.2020

BEFORE
THE HON'BLE AJIT SINGH, J.

Application U/S 482 No. 5567 of 2020

Smt. Savita Devi @ Savitri Singh & Anr.
 ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties