The Honorable Supreme Court
observed,
“Once the matter was settled between the
parties and the said settlement was given effect to in the form of divorce by
mutual consent, no further dispute survived between the parties, though it was
not so expressly recorded in the order of this Court. No liberty was reserved
by the wife to continue further proceedings against the husband. Thus, the wife
was, after settling the matter, estopped from continuing the proceedings.”
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.741 OF 2009
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.741 OF 2009
SHLOK BHARDWAJ -- APPELLANT
VERSUS
VERSUS
RUNIKA BHARDWAJ & ORS. -- Respondents
J U D G M E N T
ADARSH KUMAR GOEL,
J.
Dated: DECEMBER 10, 2014
1. This appeal has been preferred against the Judgment and Order dated 21st November, 2006 passed by the High Court of Allahabad in Criminal Revision Case No.1159 of 2002.
2. By
the impugned order, the High Court has allowed the revision petition filed by
the Respondent, set aside the order dated 30th July, 2002 passed by Judicial
Magistrate, Ghaziabad, in Case No.356 of 2002 and remanded the matter back to
the trial Court for fresh decision in accordance with law.
3. We
have heard learned counsel for the parties.
4. The question raised for our consideration is
whether in exercise of revisional jurisdiction, the High Court was justified in
setting aside the acquittal of the appellant, having regard to the facts and
circumstances of the case.
5. The
appellant and Respondent No.1 were married on 25th January, 1996.The
appellant belongs to Allahabad where his parents live and the respondent
belonged to Jabalpur where her parents are living. The appellant is said to be
employed at Delhi in Central Government. The appellant-husband filed a divorce petition
on 7th July, 1997 at Allahabad Family Court. The wife lodged First Information
Report dated 4th November, 1997 at Ghaziabad making allegations of cruelty
against the husband. After investigation, the husband and four of his family
members were tried under Sections 498-A, 406, 506 IPC and ¾ of the Dowry
Prohibition Act before the Judicial Magistrate, Ghaziabad, in Case No.356/2002.
The trial ended in acquittal of all the accused including the appellant vide
Order dated 30th July, 2002.
6. The divorce petition filed by the husband was
ordered to be transferred to Jabalpur at the instance of the wife. The wife
also filed a divorce petition at Jabalpur. The husband filed Transfer Petition
(Civil) No.150 of 2004 before this Court which was disposed of on 11th March,
2005. This Court noted that since both the parties had sought divorce, the
marriage had broken down and the parties had agreed to a decree of divorce by mutual
consent. Accordingly, this Court directed the Family Court, Jabalpur, to take
up the matter on 4 th April, 2005 without entertaining any prayer for
adjournment and pass a decree of divorce. Accordingly, the Family Court,
Jabalpur passed the decree of divorce on 4th April, 2005 after recording the
statement of the parties that they mutually agreed to decree of divorce. The
wife did not press her counter claim for maintenance. She also did not reserve
liberty for any other action against the husband.
7. It
may be mentioned that against the Order of the Magistrate acquitting the
appellant and his family members, the Respondent-wife had preferred Criminal
Revision No.1159 of 2002 before the Allahabad High Court. The husband filed affidavit
dated 4th September, 2006 placing on record the order of this Court and the
order of the Family Court, Jabalpur and also mentioning that after the
dissolution of marriage, the wife has re- married and in view of the order of
this Court and the Family Court, the revision petition ought to be dismissed.
8. The High Court, instead of dismissing the
revision petition, without referring to the above developments, allowed the revision
petition by the impugned order with the observation that documents Exhibit Ka2
and Ka3 showed harassment, cruelty and mental torture and the Magistrate had
skipped over the facts and wrongly acquitted the appellant. Aggrieved by the
said order, the appellant has approached this Court as already noticed above.
9. The
appellant appearing in person submitted that the parties had taken divorce by
mutual consent as per agreement reached before this Court and thereafter, the
respondent was not justified in proceeding against the appellant. It was further
submitted that the High Court failed to advert to the settlement between the
parties and also exceeded its jurisdiction in setting aside the order of
acquittal. The Magistrate in its detailed order duly appreciated the entire evidence
and found that no case for cruelty was made out against the appellant. In exercise
of revisional jurisdiction, the said acquittal could not be set aside in absence
of perversity. Reliance has been placed on Judgment of this Court in
Bindeshwari Prasad Singh vs. State of Bihar (2002) 6 SCC 650 laying down as
follows :
“12.
We have carefully considered the material on record and we are satisfied that
the High Court was not justified in reappreciating the evidence on record and
coming to a different 1 conclusion in a revision preferred by the informant
under Section 401 of the Code of Criminal Procedure. Sub-section (3) of Section
401 in terms provides that nothing in Section 401 shall be deemed to authorize
a High Court to convert a finding of acquittal into one of conviction. The
aforesaid sub-section, which places a limitation on the powers of the
revisional court, prohibiting it from converting a finding of acquittal into
one of conviction, is itself indicative of the nature and extent of the
revisional power conferred by Section 401 of the Code of Criminal Procedure. If
the High Court could not convert a finding of acquittal into one of conviction
directly, it could not do so indirectly by the method of ordering a retrial. It
is well settled by acatena of decisions of this Court that the High Court will ordinarily
not interfere in revision with an order of acquittal except in exceptional
cases where the interest of public justice requires interference for the
correction of a manifest illegality or the prevention of gross miscarriage of
justice. The High Court will not be justified in interfering with an order of
acquittal merely because the trial court has taken a wrong view of the law or
has erred in appreciation of evidence. It is neither possible nor advisable to
make an exhaustive list of circumstances in which exercise of revisional jurisdiction
may be justified, but decisions of this Court have laid down the parameters of
exercise of revisional jurisdiction by the High Court under Section 401 of the
Code of Criminal Procedure in an appeal against acquittal by a private party.
(See D. Stephens v. Nosibolla [AIR (1951) SC 196], K. Chinnaswamy Reddy v. State
of A.P. [AIR (1962) SC 1788], Akalu Ahir v. Ramdeo Ram [(1973) 2 SCC 583],
Pakalapati Narayana Gajapathi Raju v. Bonapalli Peda Appadu [(1975) 4 SCC 477]
and Mahendra Pratap Singh v. Sarju Singh [AIR (1968) SC 707].)
10. Learned
counsel for the respondent, on the other hand, submitted that even though the
parties had re-married after obtaining divorce by mutual consent as noticed
above, the wife was not debarred from pursuing the criminal case against the appellant.
He further submitted that the High Court was justified in setting aside the
order of the Magistrate and remitting the matter back for a fresh decision.
11. We
have given our anxious consideration to the rival submissions. We are satisfied
that the view taken by the High Court, in the facts and circumstances of the
case, is not just and fair and needs to be set aside.
12.
It is clear from perusal of the impugned
order of the High Court that the development of settlement between the parties during
pendency of the revision petition has not even been adverted to. Once the
matter was settled between the parties and the said settlement was given effect
to in the form of divorce by mutual consent, no further dispute survived
between the parties, though it was not so expressly recorded in the order of this
Court. No liberty was reserved by the wife to
continue further proceedings against the husband. Thus, the wife was, after
settling the matter, estopped from continuing the proceedings. In any case, it
is well settled that the scope of revisional jurisdiction of the High Court
does not extend to reappreciation of evidence. In exercise of
revisional jurisdiction, the High Court can interfere with the acquittal only
if there is perversity in the order of acquittal. In the present case, the order
of acquittal could not be held to be perverse. The High Court observed that the
demand of articles, papers of house property of Jabalpur and Noida and the
contents of Exhibits Ka2 and Ka3 amounted to harassment, cruelty and mental
torture. This observation amounted to substitution of its view by the High Court
for the view taken by the consideration of all the allegations. This observation amounted to substitution of its view by the High Court
for the view taken by the Magistrate after due consideration of all the
allegations. The Magistrate inter alia
found the version of the respondent-wife to be
not believable and also found that the allegations were not substantiated. It
was observed that the wife herself admitted that the documents Exhibit Ka2 and
Ka3 were merely guidelines for good conduct and behavior expected of her and
did not amount to cruelty. It was also admitted that there was no demand of
dowry at the time of marriage. The Investigating Officer had never visited Jabalpur
and the demand of house at Jabalpur was not substantiated. It was further
observed that criminal case filed by the wife was a counter blast to the
divorce case filed by the husband. Version before the Court was improvement
over the original version in the First Information Report. She had given contradictory
statement about the place where her husband demanded the house. Thus, the
Magistrate having dealt with the matter threadbare, the High Court, in exercise
of revisional jurisdiction was not justified in interfering with the order of acquittal
particularly when the parties had reached the settlement before this Court on
the basis of which divorce by mutual consent was granted by the Family Court,
Jabalpur which fact was placed on record of the High Court.
13. In view of the above, we allow this appeal, set aside the impugned
order passed by the High Court and restore the order of the Magistrate.
.…………...…………………………………………J.
(SUDHANSU
JYOTI MUKHOPADHAYA)
…………...…………………………………………J.
(ADARSH
KUMAR GOEL)
NEW
DELHI
DECEMBER 10, 2014
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