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CASE NO.: Appeal (crl.)  23 of 2005

PETITIONER: Mohd. Shamim & Ors.

RESPONDENT: Smt. Nahid  Begum & Anr.

DATE OF JUDGMENT: 07/01/2005

BENCH: N.S. Hegde & S.B. Sinha

JUDGMENT: J U D G M E N T

[Arising out of S.L.P. (Crl.) No. 2051 of 2004]

S. B. SINHA, J :

       Leave granted.

       The First Appellant and the First Respondent were married as per the  rites governing the marriage under the Muslim Personal Law on 02.04.1989.   The  Appellant No.2 is the mother of the First Appellant and the Appellant  Nos. 3 to 5 are the sisters.   The First Appellant allegedly divorced the First  Respondent and intimation thereabout was communicated to her through a  legal notice dated 03.05.2002.  On or about 30.10.2002, the Respondent  No.1 lodged a First Information Report in Women Cell, Rajinder Nagar,  New Delhi, against the Appellants herein which was registered as FIR No.  224 of 2002, Police Station Hauz Qasi, Delhi, under Sections 406/498-A/34  IPC.  The Appellants having come to learn about the lodging of the First  Information Report filed an application for grant of anticipatory bail.    During the course of hearing of the said application, a settlement was arrived  at inter alia at the instance of the learned judge hearing the said matter   between the parties on or about 11.11.2002 pursuant whereto or in  furtherance  whereof  the parties entered into a written agreement on  14.11.2002.  

       By reason of an order dated 11.11.2002,  the learned Additional  Sessions Judge, directed :

       "During the course of arguments it is settled by the  parties that  a sum of Rs.2,75,000/- would be paid by the  petitioner to the complainant Nahid Begum in full and  final settlement of istridhan, dowry mehar present past  and future maintenance etc. out of that Rs.2,25,000/-  would be paid on the next date of hearing by way of pay  order in the name of complainant and Rs.50,000/- would  be paid at the time of complainant on making statement  and no objection for quashing the FIR and the said pay  order would be retained in court.  The parties make the  draft agreement to this effect to facilitate to both the  parties for quashing of FIR.  Pay order would be brought  on the next date.  Adjourned for bringing pay order on  14.11.2002.  Till then applicants be not arrested."     

       The said agreement was filed before the court of the Additional  Sessions Judge, Delhi.

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An affidavit in support of the said settlement was also affirmed by the  First Respondent herein, wherein inter alia it was stated :

       "8. I undertake that I will cooperate in all respect  and will participate in the proceedings for quashing the  F.I.R. against Mohd. Shamim Ishrat Bi, Shahnaz Begum,  Farhat Begum and Shahzad Begum, vide F.I.R. No.  224/2002, P.S. Hauz Qazi, u/s 498-A/406/34 I.P.C., as I  have received the said amount through Bank Drafts and I  have no objection in any manner.  I have entered into the  compromise with the said persons voluntarily with my  own free will and consent.

       9.  That I have executed an Agreement with Mohd.  Shamim which is separately written with my consent and  I have understood the contents of the same, through my  counsel and have been read over to me in vernacular and  I admit the contents of the said Agreement in all respect  and I accept the same as correct.

       13. That the contents of the Agreement may be  read as part and parcel of this affidavit and the same are  not being repeated here for the sake of brevity."   

    In the said  Agreement it was clearly stipulated  that the First  Respondent received a sum of Rs.2,25,000/- from the First Appellant out of  Rs.2,75,000/-, the details whereof had been specified therein.

       It was further averred :

       "2. That the Draft/pay order of Rs.50,000  (Rupees fifty thousand only) Rs.25000/- each  (Rupees twenty five thousand only), (1) bearing  No.103621 dated 13.11.02, drawn on Canara  Bank, Chandni Chowk, Delhi (ii) bearing  No.031030 dated 13.11.02 drawn on Bank of  India, Hamdard  Dwakhana, Delhi-6 have been  deposited in the court in terms of the order dated  11.11.2002.

       3.      That the above mentioned amount  Rs.2,75,000/- (Rupees two lacs seventy five  thousand only) covers the  "MEHAR"  amount  entire articles of dowry, Istridhan, past,  present  and future maintenance, entire jewellery including  the jewellery presented by the bridegoom/second  party and his relatives.  After receipt of the said  amount the first party shall not claim anything  from the secondary party.  She will not claim any  further amount or articles, Istridhan, Charhawa i.e.  the gifts from the sides of both the parties,  maintenance u/s 124 Cr.PC or Section 3 of the  Mulsim Women Act, or under any other provisions  of law.  The first party states that she has already  filed a petition u/.s 125 Cr. PC against the second  party and the same is pending in the court of Shri  R.K. Sharma, M.M., Delhi and is fixed for  3.12.2002 of which no notice is served upon the  second party.  The first party now undertakes to  withdraw the said petition under section 125 Cr.  PC immediately.    

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       5. That both the parties are at liberty to get  married any person of their choice in future.  They  will not interfere in the affairs of each other in  future.  They will also not litigate in future in  respect of the above said matters.

       6. That the first party undertake to give no  objection/statement in order to quash the FIR in  the present case and shall withdraw any other  complaint lodged with any other authority/court of  law.  She also undertakes that she will not file any  other or further complaints case(s) etc. against the  second party."

       In view of the aforementioned settlement, the learned Additional  Sessions Judge in his order dated 14.11.2002, recorded :  

       "Present : Counsel for the parties with parties in  person App for the State.

       A pay order of 2.25 lakhs has been given by the  petitioners to the complainant.  The petitioners undertake  to further pay a sum of Rs.50,000/- to the complainant  when she would be called for the statement for quashing  of the FIR.  In these facts and circumstances, the parties  would bound by their undertaking, the applications are  allowed.  It is ordered that in the event of arrest,  applicants are released on anticipatory bail on furnishing  personal bond in the sum of Rs.10,000/- each with one  surety each in the like amount to the satisfaction of  IO/SHO concerned who are required to be arrested in  case FIR No.224/02 PS Hauz Qazi.  Parties are also  placed on record copy of pay order, agreement and  affidavit etc."     

       Pursuant to or in furtherance of the said settlement, the Appellants  herein  filed an application before the Delhi High Court for quashing the said  First Information Report purported to be under Section 482 of the Code of  Criminal Procedure, 1973.  The First Respondent, however, in stead and  place of complying with her undertaking contained in the agreement as also  in her affidavit filed objections to the said application.  In her reply filed  before the High Court, it was, inter alia, contended :

       "6.     That the contents of para no.6 of the petition  under reply are wrong and denied.  It is wrong and  denied that any compromise was accepted by the  Respondent No.1.  The court of Shri S.N. Gupta, ADJ,  Delhi accepted the bail application of the petitioners on  the condition that the petitioner no.1 will pay a sum of  Rs.2,75,000/- to the respondent No.1 in lieu of dowry  cost.  The respondent No.1 has been paid only  Rs.2,25,000/- and the petitioners have not paid  Rs.50,000/- till date hence the petition is liable to be  dismissed.  It is also submitted that respondent No.1 was  forced to sign some papers by the petitioner that  Rs.50,000/- will be paid when the paper mentioned above  will come on record of the court.  But till date amount of  Rs.50,000/- has not been paid hence the petition is liable  to be dismissed."     

       In view of the stand taken by the Respondent No.1 herein, a learned  Single Judge of the High Court by reason of the impugned judgment and

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order dated 16.02.2004 refused to interfere in the matter stating :

       "Respondent No.1/Complainant is present in  person.  She does not wish to compromise the matter and  wants to continue with her complaint which gave rise to  FIR No.224/2002, under Sections 406/498A/34,  registered at Police Station Hauz Qazi.

In this view of the matter. I find no grounds to  interfere.

Dismissed."

       Before us, there is no denial or dispute as regard the factum of  entering into the aforementioned settlement dated 14.11.2002.  In the said  deed of compromise it has categorically been averred that the same had been  entered into on the intervention of S.N. Gupta, Additional  Sessions Judge,  Delhi.  It has also been accepted that out of sum of Rs.2,75,000/-, a sum of  Rs.2,25,000/- has been paid to the First Respondent herein and the balance  amount of Rs.50,000/- would be paid at the time of complainant’s making  statement and no objection for quashing the FIR, which was retained  in the  court as per the direction of the court.  It has further been averred that no  dispute remained between the parties regarding the payment of dower  amount (Mehar), dowry articles, including the alleged jewellary gift etc.

       In view of the fact that the settlement was arrived at  the intervention  of a judicial officer of the rank of the Additional Sessions Judge, we are of  the opinion, the contention of the First Respondent herein to the effect that  she was not aware of the contents thereof and the said agreement as also the  affidavit which were got signed by her by misrepresentation of facts must be  rejected.   In the facts and  circumstances of this case, we have no doubt in  our mind  that the denial of execution of the said deed of settlement is an  afterthought on the part of the Respondent No.1 herein.

Ex facie the settlement between the parties appears to be genuine.  If  the contention of the First Respondent herein is to be accepted,  she would  not have accepted the sum of Rs.2,25,000/- and in any event, she could have  filed an appropriate application in that behalf before the Court of  S.N.  Gupta, Additional Sessions Judge, Delhi.  What was least expected of her  was that she would return the said sum of Rs.2,25,000/- to the Appellants  herein.

       Section 406 is a compoundable offence with the permission of the  court.  It is true that Section 498-A IPC is not compoundable.              This Court in Ruchi Agarwal vs. Amit Kumar Agrawal & Ors. [2004  (8) Supreme 525], in almost a similar situation has quashed a criminal  proceeding against the husband, stating :  

"\005Therefore, we are of  the opinion that the appellant  having received the relief she wanted without contest on  the basis of the terms of the compromise, we cannot now  accept the argument of the learned counsel for the  appellant.  In our opinion, the conduct of the appellant  indicates that the criminal complaint from  which this  appeal arises was filed by the wife only to harass the  respondents.

       8.  In view of the above said subsequent events and  the conduct of the appellant, it would be an abuse of the  process of the court if the criminal proceedings from  which this appeal arises is allowed to continue\005"   

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       In view of the conduct of the First Respondent in entering into the  aforementioned settlement, the continuance of the criminal proceeding  pending against the Appellants, in our opinion,  in this case also, would be  an abuse of the process of the court.  The Appellant No.1, however, would  be  entitled to withdraw the sum of Rs.50,000/- which has been deposited in  the court.  We, therefore, in exercise of our jurisdiction under Article 142 of  the Constitution of India direct that the impugned judgment  be set aside.    The First Information Report lodged against the Appellants is quashed.  The  Appeal is allowed.   However, this order should not be treated as a  precedent.