Petition under Section 528 BNSS for quashing of FIR under Sections 498A/406/34 IPC based on settlement
Cites the IPC, CrPC or Evidence Act. For matters from 1 July 2024, use the BNS, BNSS or BSA.
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IN THE MATTER OF :-
1. MR. Petitioner no. 1's name
S/o Petitioner no. 1's father's name
R/o Petitioner no. 1's address,
Delhi.
2. SH. Petitioner no. 2's name
S/o Sh. Petitioner no. 2's father's name
3. MRS. Petitioner no. 3's name,
W/o Sh. Petitioner no. 3's husband's name
Both R/o Petitioners no. 2 and 3's address,
Delhi.
4. SMT. Petitioner no. 4's name
W/o Late Sh. Petitioner no. 4's late husband's name
R/o Petitioner no. 4's address, Delhi.: PETITIONERS
VERSUS
1. THE STATE (NCT OF DELHI)
2. MRS. Respondent no. 2's name
D/o Respondent no. 2's father's name
R/o Respondent no. 2's address,
Delhi.: RESPONDENTS
FIR No. FIR number
U/s.: 498A/406/34 IPC,
P.S.: Police station
CRIMINAL MISC. MAIN PETITION FILED BY THE PETITIONERS UNDER SECTION 528 OF BNSS FOR QUASHING OF THE PROCEEDINGS IN FIR BEARING No. FIR number REGISTERED AT POLICE STATION Police station, DELHI, UNDER SECTIONS 498A/406/34 OF THE INDIAN PENAL CODE.
MOST RESPECTFULLY SHOWETH :-
1.That the Petitioners are law-abiding citizens of India and have full faith in the administration of justice. The Petitioners have invoked the extraordinary jurisdiction of this Hon'ble Court under Section 528 of the BNSS for quashing of FIR FIR number registered at Police Station Police station, Delhi, under Sections 498A/406/34 of the IPC, on the basis of the complaint lodged by the Complainant / Respondent no. 2 against the Petitioners.
•Copy of the FIR bearing No. FIR number is annexed to this petition as Annexure P-1.
•Copy of the charge-sheet filed by the IO against the Petitioners is annexed as Annexure P-2.
2.That the Petitioners are aggrieved by the FIR registered at Police Station Police station. By this petition, the Petitioners are, inter alia, seeking the quashing of the said FIR No. FIR number and the proceedings emanating thereunder.
3.That the present petition has been filed by the Petitioners, and the brief facts of the case necessary for the disposal of the present petition are summarised as under:-
3.1That the present FIR has been registered on the basis of the complaint lodged by Respondent no. 2 before the CAW Cell, Delhi, which was converted into the present FIR and registered at Police Station Police station, Delhi.
3.2That Petitioner no. 1 was married to Respondent no. 2, namely Ms. Respondent no. 2's name, on Date of marriage at Marriage venue according to Hindu rites and rituals, and thereafter Respondent no. 2 resided with Petitioner no. 1.
3.3That after the marriage, Petitioner no. 1 and Respondent no. 2 lived together as husband and wife, and no issue was born out of the said wedlock.
3.4That after the marriage, disputes and differences arose between Petitioner no. 1 and Respondent no. 2 owing to temperamental differences and differences of opinion, and the parties started living separately from each other from Date of separation.
3.5That all efforts at reconciliation made by the family members, relatives and friends of both Petitioner no. 1 and Respondent no. 2 have failed, and there is no possibility of reconciliation between them in the future. As such, they have finally decided to obtain divorce by mutual consent.
3.6That Petitioner no. 1 and Respondent no. 2 have amicably settled all their disputes, differences and claims against each other and executed a Compromise-cum-Settlement Deed dated Date of settlement deed. The contents of the said Compromise-cum-Settlement Deed may be read as part and parcel of the present petition. A copy of the Settlement Deed dated Date of settlement deed is annexed as Annexure P-3.
3.7It has been settled that Petitioner no. 1 shall pay an amount of Permanent alimony amount/- as permanent alimony, being a full and final settlement towards all claims against Petitioner no. 1 and his family, and upon receipt of the said amount, Respondent no. 2 shall have no monetary claim against Petitioner no. 1 and his family members in respect of any movable or immovable assets, including jewellery, istridhan and household articles, nor in respect of present, past or future maintenance and permanent alimony, or any other claim arising out of the marriage. Upon execution of the Compromise-cum-Settlement Deed, the parties agreed and undertook to perform the following acts:-
(a)That it was agreed that Petitioner no. 1 and Respondent no. 2 would file the First Motion Petition under Section 13B(1) of the HMA after signing the Settlement Deed before this Hon'ble Court. A demand draft bearing Demand draft number and date for an amount of First installment amount/- drawn on Bank name was handed over by Petitioner no. 1 to Respondent no. 2 at the time of the recording of the statements of Petitioner no. 1 and Respondent no. 2 on the date of the First Motion. The First Motion was allowed by Ms. Family Court judge's name, Ld. Principal Judge, Family Court, Rohini Courts, Delhi, in Divorce petition number vide order dated Date of first motion order.
(b)That it was further agreed that Respondent no. 2 shall withdraw the petition under Section 125 Cr.P.C. pending before the Hon'ble Court of Family Court judge's name, Judge, Family Court, Rohini, Delhi, before the recording of the statement in the divorce petition under Section 13B(1) of the HMA.
(c)It was further agreed that Respondent no. 2 shall withdraw the petition under Section 12 of the PWDV Act filed by her against the Petitioners after the recording of the statement in the divorce petition under Section 13B(1) of the HMA.
(d)That it was further agreed that both parties would file the joint petition under Section 13B(2) of the HMA, along with an application for special leave to waive the stipulated period of six months, before the Hon'ble Family Court, Rohini, Delhi. In the event that the Hon'ble Court does not allow the application for waiver of the stipulated period, both parties shall file the joint petition under Section 13B(2) of the HMA within a week of the expiry of the stipulated period of six months, and Petitioner no. 1 shall pay the second instalment of a sum of Second installment amount/- by way of demand draft / pay order in the name of Respondent no. 2 at the time of the recording of the statement in the Second Motion of the divorce petition under Section 13B(2) of the HMA before the Hon'ble Court. The Second Motion decree of divorce was allowed by Ms. Family Court judge's name, Ld. Principal Judge, Family Court, Rohini Courts, Delhi, vide order dated Date of divorce decree. A copy of the decree of divorce dated Date of divorce decree is annexed as Annexure P-4.
(e)That, after the grant of the decree of divorce by mutual consent by the Hon'ble Family Court, Petitioner no. 1 was to file the present petition for quashing of FIR bearing No. FIR number, P.S. Police station, before this Hon'ble Court, and Respondent no. 2 was to appear along with her counsel and cooperate in the quashing of the said FIR. It was further agreed that Petitioner no. 1 shall pay the last instalment of Second installment amount/- by way of demand draft / pay order in favour of Respondent no. 2 at the time of the quashing of the FIR before this Hon'ble Court.
(f)That it is agreed between the parties that, if any complaint / case / petition is pending before any police station / authority / forum / tribunal between the parties or their relatives, the same shall stand cancelled / withdrawn / satisfied. Further, after the grant of divorce by mutual consent and the quashing of the present FIR, Respondent no. 2 shall not file any case, whether civil, criminal or matrimonial, or any complaint for pendente lite maintenance, permanent alimony, or for a share in the movable / immovable properties (whether self-acquired, ancestral or acquired in any other manner, present or future), business or profession of the Petitioners and their relatives, before any court of law or authority, in any circumstances, in future, in any manner. Simultaneously, Petitioner no. 1 undertakes not to file any case, whether civil or criminal, against Respondent no. 2, her parents or her relatives, in any court of law, in respect of their properties (whether movable or immovable, inherited or self-acquired).
g.That after obtaining divorce by mutual consent, Petitioner No. 1 and Respondent No. 2 undertake that they shall not interfere in the future life of each other or of their respective family members, relatives and friends, and shall not claim any interest in the movable or immovable properties or business of Petitioner No. 1 or Respondent No. 2 or their family members. Petitioner No. 1 and Respondent No. 2 further undertake that neither they nor any family member, relative or friend of either of them shall make any correspondence, complaints or the like against each other before any authority, police authority or court of law in India.
3.8Both parties agree that, upon compliance with the terms of the present Conciliated Agreement, they shall not interfere in each other's life in any manner, and undertake not to make any allegations, whether defamatory or derogatory, against each other or their respective family members, whether personally or on any public forum and/or through social media, namely WhatsApp, Facebook, Twitter, Instagram, etc.
3.9Both parties agree and undertake that they shall duly perform and abide by all the terms and conditions contained in the present Settlement Deed. In the event of breach of any of the terms and conditions set out hereinabove, they shall be liable to be punished under the provisions of the Contempt of Courts Act, 1971 upon filing of their undertakings in terms of Raj at Gupta Vs. Rupali Gupta, confirming the terms of the present Conciliated Agreement before the Family Court at Place of the Family Court where the mutual divorce decree was granted, where the parties have already been granted a decree of divorce by mutual consent under the Hindu Marriage Act, 1955.
4.That the petitioners and Respondent No. 2 have already withdrawn all cases, complaints and petitions pending against each other and against the other family members of either party, and both parties further undertake not to institute any case, complaint or suit against each other or their family members in future before any court of law or any other authority.
5.That upon compliance with the other terms and conditions of the compromise / statement recorded in the divorce proceedings, the petitioners and Respondent No. 2 shall be left with no claims, rights or interests against each other in respect of any assets, movable or immovable, owned or possessed by them, or to be owned or possessed by them or their family members and relatives, at any point of time.
6.That since the petitioners and Respondent No. 2 have already resolved and settled all disputes amongst themselves out of their own free will and without any pressure from any quarter, they shall live separately without any grudge or complaint against each other, and shall lead their independent lives without involvement of each other.
7.That it has been further undertaken by Petitioner No. 1 and Respondent No. 2 that they shall not proceed against each other in any case whatsoever, whether criminal or civil, as, with this petition, each and every transaction, claim and dispute arising out of the said marriage stands settled.
8.That Respondent No. 2 has already settled all her claims and shall not make any claim arising out of the said marriage, including claims towards maintenance, permanent alimony, compensation, Istridhan, etc., and has undertaken that she shall not raise any claim in future on any account whatsoever.
9.That since both parties to this petition have settled and compromised the matter and all their claims against each other, no useful purpose is likely to be served by continuation of the proceedings in the aforesaid case/FIR; hence the present petition.
10.Aggrieved by the FIR registered against the petitioners, the petitioners are moving this petition seeking quashing of the FIR, amongst other grounds, on the following grounds:-
- : G R O U N D S : -
A.Because nothing remains between the Petitioners and Respondent No. 2, as all claims between them stand settled, and the FIR ought to be quashed.
B.Because the matter has been amicably settled between the petitioners and Respondent No. 2 vide settlement deed dated Date of settlement deed, and nothing now remains between the parties; hence no useful purpose will be served if the proceedings are allowed to continue.
C.Because there are no means, and in their absence, no offence under Sections 498A/406/34 of the Indian Penal Code is made out against the Petitioners.
D.Because it has been held by the Hon'ble Supreme Court in the case of "Gian Singh Vs. State of Punjab", in paragraph 57, that the position which emerges from the discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation, but it has to be exercised in accordance with the guideline engrafted in such power, viz., (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any Court. The cases in which the power to quash the criminal proceeding or complaint or F.I.R. may be exercised, where the offender and victim have settled their dispute, would depend upon the facts and circumstances of each case, and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity, or offences such as murder, rape, dacoity, etc., cannot be fittingly quashed even though the victim or the victim's family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact upon society. Similarly, any compromise between the victim and the offender in relation to offences under special statutes such as the Prevention of Corruption Act, or offences committed by public servants while working in that capacity, etc., cannot provide any basis for quashing criminal proceedings involving such offences. But criminal cases having an overwhelmingly and predominantly civil flavour stand on a different footing for the purposes of quashing, particularly offences arising from commercial, financial, mercantile, civil, partnership or such like transactions, or offences arising out of matrimony relating to dowry, etc., or family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash criminal proceedings if, in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak, and the continuation of the criminal case would put the accused to great oppression and prejudice, and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding, or whether the continuation of the criminal proceeding would tantamount to abuse of the process of law despite the settlement and compromise between the victim and the wrongdoer, and whether, to secure the ends of justice, it is appropriate that the criminal case be put to an end. If the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.
E.Because the present FIR being ex facie malafide falls squarely within the scope of the judgment of the Hon'ble Supreme Court in the case of State of Haryana Vs. Bhajan Lal, reported in AIR 1992 SC 604 (paragraph 107), and the petitioners are entitled to have the proceedings quashed on that ground as well.
F.That, in order to buy peace, the petitioners are moving this petition seeking quashing of the FIR, and no dispute remains between the petitioners and Respondent No. 2.
G.For that the entire disputes between the petitioners and respondent no. 2 stand settled. The petitioners and respondent no. 2 state that they have taken the decision of divorce, withdrawal of cases and quashing of the FIR with their mutual consent, thoughtfully and willingly, and that there is no threat, force, fraud or undue influence acting upon them in arriving at this decision of settlement by way of mutual consent. The present petition has not been filed in collusion between the petitioners and respondent no. 2.
11.That the petitioners crave leave of this Hon'ble Court to raise such other or further grounds as may be available to them at the time of hearing of the present petition.
12.That the petitioners crave leave to alter or amend the petition with the permission of this Hon'ble Court, and by way of the present petition the petitioners humbly seek the indulgence of this Hon'ble Court to pass appropriate orders for quashing of the FIR.
NON-FILING PARA:-
13.That the petitioners have not filed any similar petition in the above-noted matter either before this Hon'ble Court or before the Hon'ble High Court of Delhi or the Hon'ble Supreme Court of India.
P R A Y E R
In the facts and circumstances of the case, it is most respectfully prayed that this Hon'ble Court may kindly:-
A.Pass an appropriate order/direction for quashing of FIR No. FIR number, Police Station Police station, Delhi, under Section 498A/406/34 of IPC, and all other proceedings emanating thereunder.
B.Quash the proceedings pending before the Ld. M.M., District District, Rohini Courts, Delhi, arising from the chargesheet filed in case FIR No. FIR number, PS Police station, Delhi, under Sections 498A/406/34 of IPC, in case titled as "State Vs Accused's name in case title etc.".
C.Pass such other or further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case, in order to meet the ends of justice.
It is, therefore, most respectfully prayed accordingly.
PETITIONERS
Through
Place: New Delhi
Dated:
ADVOCATES