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2022 Supreme(HP) 838
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Vivek Singh Thakur, J.
Dheeraj Kumar - Petitioner
Vs.
State of H.P. & others - Respondents
Cr.MMO No. 256 of 2016 and Cr.MMO No. 11 of 2021
Decided On : 22-12-2022
Advocate Appeared:
For the Petitioner:Ms.Manisha Thamta, Advocate, vice Mr.Prashant Chaudhary, Advocate.
For the Respondents:Mr.Raju Ram Rahi, Deputy Advocate General, Mr.Jeevan Kumar, Advs.
Point of Law: It is evident that petitioner is not inclined to abide by terms and conditions of compromise and as per compromise criminal cases are to be withdrawn after dissolution of marriage on basis of joint petition filed for said purpose with mutual consent.
Headnote:
Indian Penal Code,1860 - Sections 174-A , 498-A, 406 and 34 – Offence of Harassment of women – Act done by several persons - Charged - Petitioner was solemnized with Lalita (respondent No. 4 in Cr.MMO No. 256 of 2016) and their relations did not remain cordial, which lead to registration of FIR No. - Petitioner is claiming that matter has been compromised and to substantiate compromise petitioner has placed on record copy of affidavit sworn , wherein she has endorsed terms of compromise arrived at between petitioner and her - It is also admitted case that petitioner had failed to put appearance in trial Court despite service and in his absence, he was declared as proclaimed offender and separate FIR No., dated was also registered against petitioner under Section 174-A of IPC in Police Station, Paonta Sahib, District Sirmaur, H.P. and in furtherance thereto criminal proceedings bearing case No. 28/16, titled as State of H.P. Vs. Dheeraj Kumar, are pending before Additional Chief Judicial Magistrate, Panota Sahib - Learned counsel for petitioner, under instructions received on behalf of petitioner, had again submitted that petitioner was ready to file petition for dissolution of marriage with mutual consent in Family Court at Nahan. (Para 8)
Finding of Court :
Learned counsel for petitioner submits that in terms of order dated petitioner was informed about fixing of date i.e. for presence of parties in Court of District Judge, Sirmour at Nahan which was fixed as per instructions imparted by petitioner and order for presence of parties on that date, was duly communicated to petitioner - She further submits that for inquiring reason for absence of petitioner, attempt was made to contact him telephonically on mobile, but his mobile phone was found switched off and since then till date no instructions have been imparted to counsel by petitioner - It is evident from terms of compromise that for withdrawal/closure of Criminal Case(s), dissolution of marriage with mutual consent by filing joint petition was pre-condition - From facts and circumstances, it is evident that petitioner is not inclined to abide by terms and conditions of compromise and as per compromise criminal cases are to be withdrawn after dissolution of marriage on basis of joint petition filed for said purpose with mutual consent - Petitioner is not turning up to comply with the condition of compromise - From conduct of petitioner, it appears that he is not interested to pursue present petitions.
Result : Petition stand disposed of.
JUDGMENT :
Vivek Singh Thakur, J.
By filing Cr.MMO No. 256 of 2016, petitioner has approached this Court for quashing of FIR No. 409 of 2011, dated 26.12.2011, registered under Sections 498-A, 406 and 34 of the Indian Penal Code (for short ‘IPC’), in Police Station Paonta Sahib, District Sirmaur, H.P. and consequential proceedings arising thereto, bearing case No. 1393 of 2013, titled as State of H.P. vs. Dheeraj Kumar, on the ground that matter has been compromised between him and respondent No. 4-complainant Lalita.
2. Undisputed facts are that marriage of petitioner was solemnized with Lalita (respondent No. 4 in Cr.MMO No. 256 of 2016) on 10.3.2002 and their relations did not remain cordial, which lead to registration of FIR No. 409 of 2011 by Lalita. Petitioner is claiming that matter has been compromised and to substantiate the compromise petitioner has placed on record copy of affidavit sworn by Lalita, wherein she has endorsed the terms of compromise arrived at between the petitioner and her. Terms contained in affidavit are as under:-
“1. That a compromise has been effected between me and my husband. In view of the compromise, I have received an amount of Rs. 5,00,000/- (Rupees Five lacs) in full and final consideration towards permanent alimony and maintenance of my son and me.
2. That is I also decided that the custody of the son Arjun Sharma will be his mother for whole life. Dhiraj Sharma will not file any case for his son’s custody in any Court of India.
3. That it has been agreed that Sh. Dheeraj and I shall file a joint petition for obtaining decree of divorce, by mutual consent and thereafter I shall withdraw, all the cases filed by me i.e. complaint U/s 498A IPC etc.”
3. It is also admitted case that petitioner had failed to put appearance in the trial Court despite service and in his absence, he was declared as proclaimed offender and separate FIR No. 36 of 2016, dated 10.1.2016 was also registered against the petitioner under Section 174-A of IPC in Police Station, Paonta Sahib, District Sirmaur, H.P. and in furtherance thereto criminal proceedings bearing case No. 28/16, titled as State of H.P. Vs. Dheeraj Kumar, are pending before Additional Chief Judicial Magistrate, Panota Sahib,
4. Cr.MMO No. 11 of 2021 has been filed by the petitioner for quashing of FIR No. 36 of 2016, dated 10.1.2016, registered under Section 174-A of IPC in Police Station Paonta Sahib, District Sirmaur, H.P. and consequential proceedings arising thereto bearing case No. 28/2016, titled as State of H.P. vs. Dheeraj Kumar for settlement of matter between private parties.
5. Lalita has admitted the compromise entered between the parties and the affidavit sworn by her, copy whereof, has been placed on record. Receipt of Rs. 5,00,000/- in terms of compromise has also been endorsed. In terms of compromise custody of son of couple namely Arjun Sharma is with Lalita. However, it has been submitted on her behalf that petitioner has failed to come forward to file joint petition for obtaining decree of divorce by mutual consent, as agreed between the parties in terms of compromise and as per compromise only on dissolution of marriage with mutual consent, Lalita had agreed to withdraw the case(s) filed by her under Section 498-A IPC.
6. During pendency of present petitions, it was claimed by petitioner that he is ready and willing to file divorce petition with mutual consent in terms of compromise with further submission that he would be present in the Court of District Judge, Sirmaur at Nahan for filing appropriate petition for dissolution of marriage, but with further submission that being a proclaimed offender, he may be arrested by the Police and, therefore, unless protection is granted to him from his arrest, it would not be possible for him to appear before District Judge for filing joint petition for dissolution of marriage.
7. Considering the aforesaid submission of learned counsel for the petitioner, vide order dated 6.4.2022, protection from a
