Himachal Pradesh High Court
Prakash Chand vs Union Territory on 16 March, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
ON THE 16th DAY OF MARCH, 2022
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL REVISION No.45 of 2012 a/w
Cr. MP No. 2167 of 2021
Between:
1. PRAKASH CHAND,
S/O SH. BHAGAT RAM, CASTE JAT.
2. SAVITRI DEVI,
W/O PRAKASH CHAND,
CASTE JAT,
BOTH RESIDENTS OF VILLAGE JAISIAIR,
TEHSIL AND POLICE STATION JAWALI,
DISTRICT KANGRA, H.P.
....PETITIONERS
(BY MR. N.K. THAKUR,
SENIOR ADVOCATE
WITH MR. DIVYA RAJ SINGH
AND MS. RITU SINGH,
ADVOCATES)
AND
1. STATE OF HIMACHAL PRADESH,
2. MS. REKHA,
W/O RAVAN SINGH,
R/O VILLAGE JAISOR,
TEHSIL JAWALI,
DISTRICT KANGRA, H.P.
....RESPONDENTS
(BY MR. SUDHIR BHATNAGAR AND
MR. DESH RAJ THAKUR, ADDITIONAL
ADVOCATES GENERAL, WITH
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2
MR. NARENDER THAKUR AND
MR. KAMAL KISHORE SHARMA,
.
DEPUTY ADVOCATES GENERAL,
FOR R-1)
Whether approved for reporting?. Yes.
This petition coming on for orders this day, the Court passed the following:
ORDER
Instant criminal revision petition filed under Section 397 read with Section 401 of Cr.PC, lays challenge to judgment dated 31.12.2011, passed by the r learned Additional Sessions Judge-I, Kangra at Dharamshala, Himachal Pradesh, in Criminal Appeal No. 07-J/2006, affirming judgment of conviction and order of sentence dated 12.1.2006, passed by the learned Additional Judicial Magistrate, Jawali, District Kangra, H.P., in Criminal Case No.21-II/2002, whereby the learned trial Court while holding the petitioners-accused guilty of having committed offences punishable under Sections 452 of the IPC read with Section 34 of IPC, convicted and sentenced them to undergo imprisonment as per description given herein below:
Sr. No. Sections Imprisonment Fine
1. Section 452 read with Rigorous imprisonment for Rs.2,000/-
Section 34 of IPC a period of two years.
In default of aforesaid
payment of fine, to
further undergo simple
imprisonment for two
months
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3
2. Section 325 IPC Rigorous Imprisonment Rs.2,000/-
for a period of two years.
.
In default, to undergo
simple imprisonment
for two months
3. Section 323 IPC Simple imprisonment for a Rs. 1,000/-
period of six months
In default of payment,
to undergo simple
imprisonment for a
period of one month
2. Precisely, the facts of the case, as emerge from the record are that police presented challan against the accused for their having committed offence punishable under Sections 451, 452, 323, 324, 325 of IPC read with Section 34 of the IPC, in the court of learned Additional Judicial Magistrate, Jawali, District Kangra, H.P., alleging therein that deceased Nikko Devi (since deceased) i.e. mother of the accused Prakash Chand, was having four daughters and one son. Her husband had bequeathed four kanals of land in her favour and remaining land was bequeathed in favour of the accused Prakash Chand, son of the complainant. Prakash Chand was residing in the house belonging to the husband of the complainant and complainant was residing in the house of one Ravan Singh, son of her daughter. A suit for partition was filed by the complainant, which was pending disposal before the revenue authorities.
Demarcation was conducted and one kanal land was found to be belonging to the complainant, which was given to her by means of a will. Allegedly, ::: Downloaded on - 24/12/2022 09:07:58 :::CIS 4 accused Prakash Chand entered in the said land on 29.4.2001 at about .
11:00 AM and started abusing the complainant. He was accompanied by petitioner No.2-Savitri Devi, wife of the accused Prakash Chand. When the complainant requested the accused not to abuse her, the accused entered in her courtyard and inflicted a blow of "Daraat" on her head and on her left leg, as a consequence of which, she suffered injuries.
3. Learned trial Court on the basis of material adduced on record by the respective parties, vide judgment/order dated 12.1.2006, held the petitioners-accused guilty of having committed offences punishable under Sections 451, 452, 323, 324 and 325 of IPC read with Section 34 of the IPC and accordingly, sentenced them as per the description given herein above.
4. Being aggrieved and dissatisfied with the aforesaid judgment of conviction recorded by the court below, accused preferred an appeal in the court of learned Additional Sessions Judge-I, Kangra at Dharamshala, H.P., which also came to be dismissed vide judgment dated 31.12.2011, as a consequence of which, judgment of conviction recorded by the learned trial Court came to be upheld. In the aforesaid background, present petitioners-
accused have approached this Court by way of instant proceedings, seeking therein their acquittal after setting aside the judgments of conviction recorded by the courts below.
::: Downloaded on - 24/12/2022 09:07:58 :::CIS 55. Vide order dated 7.3.2012, this Court, while suspending the .
substantive sentence imposed by the court below, admitted the case for hearing. During the pendency of the case at hand, accused filed an application under Section 320 (6) read with Section 482 Cr.PC, seeking therein permission of this court to compound the offence under Sections 452, 323 and 325 of IPC read with Section 34 of the IPC on account of compromise arrived inter-se parties.
6. Vide order dated 9.11.2021, this court with a view to ascertain factum with regard to correctness and genuineness of the compromise, deemed it necessary to cause presence of parties to the Court. Since Complainant on account of her illness was unable to come present, this Court vide order dated 17.11.2021 directed the learned JMFC Jawali, to record her statement.
7. Pursuant to aforesaid direction issued by this Court, learned trial court after having recorded the statement of the complainant has transmitted the same to this Court, perusal whereof reveals that accused and complainant namely Rekha, who are closely related to each other, have resolved to settle their dispute amicably inter-se them. Complainant Rekha Devi has categorically stated in her statement recorded before the court below that she of her own volition and without there being any external pressure has entered into compromise with the accused, who are otherwise ::: Downloaded on - 24/12/2022 09:07:58 :::CIS 6 in her relations, whereby both the parties have settled their dispute .
amicably. She stated that since accused have already apologized for their misbehavior and have undertaken not to repeat such act in future, she shall have no objection in case prayer made by the accused for compounding the offence is accepted.
8. Mr. Sudhir Bhatnagar, learned Additional Advocate General, while fairly admitting factum with regard to the statement made by the complainant Rekha Devi before the court below contends that since accused already stands convicted by the competent court of law, this Court in the instant proceedings, may not compound the offence, as has been prayed in the instant petition. He further submits that otherwise also, while exercising power under Section 320 (6), this court has no power to compound the offence punishable under Section 452 Cr.PC.
9. Having heard learned counsel for the parties and perused material available on record, especially statement of the complainant recorded by the JMFC Jawali, pursuant to orders passed by this Court, this Court finds substantial force in the prayer made by the petitioners-accused for compounding the offence. It is not in dispute that accused and respondent-complainant are closely related to each other. Accused No.1 and accused No.2 are real maternal uncle and aunt of the complainant and dispute inter-se them arose on account of some land. Since they have ::: Downloaded on - 24/12/2022 09:07:58 :::CIS 7 resolved to settle their dispute amicably inter-se them, prayer made in the .
instant petition for compounding of offence deserves to be considered.
10. Question, which falls for adjudication by this Court is whether this Court has power under Section 320(6) read with Section 482 Cr.PC, to compound the offence, if any, punishable under Sections 325 and 452 of Cr.PC that too after recording of the conviction by the competent court of law. This Court has already dealt with the similar situation in Case titled Ajay Kumar v. State of Himachal Pradesh passed in Cr.R. NO. 361 of 2017 dated 10.9.2018.
11. Provision contained under Section 320 (6) enables the High Court or Court of Session acting in the exercise of its powers of revision under section 401 to allow any person to compound any offence which such person is competent to compound under this section. If the schedule attached to section 320 Cr.PC is read in its entirety, it reveals that though this Court has power to compound the offence punishable under Section 325, but not under section 452, however, to compound the offence punishable under Section 452, this Court can always exercise power under Section 482 Cr.PC, which clearly provides that nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to ::: Downloaded on - 24/12/2022 09:07:58 :::CIS 8 secure the ends of justice. Since in the case at hand, complainant and the .
accused are closely related to each other and they with a view to have cordial relationship with each other in future, have mutually decided to resolve their dispute amicably, prayer made in the instant petition, if allowed, would definitely bring peace and harmony and secure the ends of justice
12. Reliance is placed upon judgment passed by the Hon'ble Apex Court in case titled Narinder Singh and Ors. V. State of Punjab and Anr.
(20140 6 SCC 466, whereby Hon'ble Apex Court has formulated guidelines for accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings. Perusal of judgment referred above clearly depicts that in para 29.1, Hon'ble Apex Court has returned the findings that power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under section 320 of the Code.
No doubt, under section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with great caution. Para Nos. 29 to 29.7 of the judgment are reproduced as under:-
::: Downloaded on - 24/12/2022 09:07:58 :::CIS 9"29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving .
adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:
29.1Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.
29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:
(i) ends of justice, or
(ii) to prevent abuse of the process of any Court.
While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.
29.3. Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by Public Servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.
29.4. On the other, those criminal cases having overwhelmingly and pre-dominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.
29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.
::: Downloaded on - 24/12/2022 09:07:58 :::CIS 1029.6. Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore is to be generally treated as .
crime against the society and not against the individual alone.
However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the later case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship.
29.7. While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime".
::: Downloaded on - 24/12/2022 09:07:58 :::CIS 1113. The Hon'ble Apex Court in case Gian Singh v. State of .
Punjab and anr. (2012) 10 SCC 303 has held that power of the High Court in quashing of the criminal proceedings or FIR or complaint in exercise of its inherent power is distinct and different from the power of a Criminal Court for compounding offences under Section 320 Cr.PC. Even in the judgment passed in Narinder Singh's case, the Hon'ble Apex Court has held that while exercising inherent power of quashment under Section 482 Cr.PC., the Court must have due regard to the nature and gravity of the crime and its social impact and it cautioned the Courts not to exercise the power for quashing proceedings in heinous and serious offences of mental depravity, murder, rape, dacoity etc. However subsequently, the Hon'ble Apex Court in Dimpey Gujral and Ors. vs. Union Territory through Administrator, UT, Chandigarh and Ors. (2013( 11 SCC 497 has also held as under:-
"7. In certain decisions of this Court in view of the settlement arrived at by the parties, this Court quashed the FIRs though some of the offences were non-compoundable. A two Judges' Bench of this court doubted the correctness of those decisions. Learned Judges felt that in those decisions, this court had permitted compounding of non-
compoundable offences. The said issue was, therefore, referred to a larger bench.
The larger Bench in Gian Singh v. State of Punjab (2012) 10 SCC 303 considered the relevant provisions of the Code and the judgments of this court and concluded as under: (SCC pp. 342-43, para 61)
61. The position that emerges from the above 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 ::: Downloaded on - 24/12/2022 09:07:58 :::CIS 12 Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord .
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. In what cases 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 on 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 like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the 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, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put 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 continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding." (emphasis supplied)
8. In the light of the above observations of this court in Gian Singh, we feel that this is a case where the continuation of criminal proceedings would tantamount to abuse of process of law because the alleged offences are not heinous offences showing extreme depravity nor are they against the society. They are offences of a personal nature and ::: Downloaded on - 24/12/2022 09:07:58 :::CIS 13 burying them would bring about peace and amity between the two sides. In the circumstances of the case, FIR No. 163 dated 26.10.2006 .
registered under Section 147, 148, 149, 323, 307, 452 and 506 of the IPC at Police Station Sector 3, Chandigarh and all consequential proceedings arising there from including the final report presented under Section 173 of the Code and charges framed by the trial Court are hereby quashed."
14. In the aforesaid case, Hon'ble Apex Court specifically observed that "this is a case where the continuation of criminal proceedings would tantamount to abuse of process of law because the alleged offences are not heinous offences showing extreme depravity nor are they against the society.
They are offences of a personal nature and burying them would bring about peace and amity between the two sides." In the instant case, offences allegedly having been committed by the petitioner-accused are neither serious nor heinous offences of mental depravity or offences like murder, rape, dacoity, etc., rather offences allegedly committed by the petitioner-
accused are private in nature and do not have any serious impact on society. Apart from above, it clearly emerges from the statement of complainant that as of today parties have amicably settled the matter inter-
se them. Complainant has categorically stated before this Court that she has entered into a compromise with the petitioner-accused of her own free will and accord, without any pressure or influence of any kind whatsoever and as such, she does not wish to prosecute the case any further. Hence this Court after hearing the complainant as well as submissions made in ::: Downloaded on - 24/12/2022 09:07:58 :::CIS 14 the application filed under Section 482 is of the view that instant matter .
can be ordered to be compounded while exercising power under Section 482 of the Cr.P.C.
15. Recently, Hon'ble Apex Court in judgment dated 29.2.2021 passed in Cr.A. No.1488 of 2012, Ram Gopal v. State of MP, has held that the touchstone for exercising the extraordinary power under Section 482 Cr.P.C. would be to secure the ends of justice. There can be no hard and fast line constricting the power of the High Court to do substantial justice. A restrictive construction of inherent powers under Section 482 Cr.P.C. may lead to rigid or specious justice. Most importantly, the Honb'le Apex Court in the aforesaid judgment has categorically held that the High Court having regard to the nature of the offence and the fact that parties have amicably settled their dispute and the victim has willingly consented to the nullification of criminal proceedings, can quash such proceedings in exercise of its inherent powers under Section 482 Cr.P.C., even if the offences are non compoundable. Relevant extract of the afore judgment reads as under:
"12. The High Court, therefore, having regard to the nature of the offence and the fact that parties have amicably settled their dispute and the victim has willingly consented to the nullification of criminal proceedings, can quash such proceedings in exercise of its inherent powers under Section 482 Cr.P.C., even if the offences are non compoundable. The High Court can indubitably evaluate the consequential effects of the offence beyond the body ::: Downloaded on - 24/12/2022 09:07:58 :::CIS 15 of an individual and thereafter adopt a pragmatic approach, to ensure that the felony, even if goes unpunished, does not tinker .
with or paralyze the very object of the administration of criminal justice system.
13. It appears to us that criminal proceedings involving non- heinous offences or where the offences are predominantly of a private nature, can be annulled irrespective of the fact that trial has already been concluded or appeal stands dismissed against conviction. Handing out punishment is not the sole form of delivering justice. Societal method of applying laws evenly is always subject to lawful exceptions. It goes without saying, that the cases where compromise is struck post conviction, the High Court ought to exercise such discretion with rectitude, keeping in view the circumstances surrounding the incident, the fashion in which the compromise has been arrived at, and with due regard to the nature and seriousness of the offence, besides the conduct of the accused, before and after the incidence. The touchstone for exercising the extraordinary power under Section 482 Cr.P.C.
would be to secure the ends of justice. There can be no hard and fast line constricting the power of the High Court to do substantial justice. A restrictive construction of inherent powers under Section 482 Cr.P.C. may lead to rigid or specious justice, which in the given facts and circumstances of a case, may rather lead to grave injustice. On the other hand, in cases where heinous offences have been proved against perpetrators, no such benefit ought to be extended, as cautiously observed by this Court in Narinder Singh & Ors. vs. State of Punjab & Ors.3 and Laxmi Narayan (Supra).
14. In other words, grave or serious offences or offences which involve moral turpitude or have a harmful effect on the social and moral fabric of the society or involve matters concerning public policy, cannot be construed betwixt two individuals or groups only, for such offences have the potential to impact the society at large. Effacing abominable offences through quashing process would not only send a wrong signal to the community but may also accord an undue benefit (2014) 6 SCC 466, to unscrupulous habitual or professional offenders, who can secure a 'settlement' through duress, threats, social boycotts, bribes or other dubious means. It is well said that "let no guilty man escape, if it can be avoided."
In the aforesaid judgment, the Hon'ble Apex Court has categorically held that criminal proceedings involving non-heinous offences or where the offences are predominantly of private nature can be annulled irrespective of ::: Downloaded on - 24/12/2022 09:07:58 :::CIS 16 the fact that trial has already been concluded or appeal stands dismissed .
against the conviction.
16. Consequently, in view of the peculiar facts and circumstances of the case, wherein parties have compromised the matter at hand, this Court deems it fit to exercise its power under Section 482 Cr.PC and accordingly, the FIR No. 71 of 2001 dated 29.4.2001, registered at Police Station Jawali, District Kangra, H.P., under Sections 451, 452, 323, 324, 325 of IPC read with Section 34 of the IPC, is ordered to be quashed. Since FIR has been quashed, consequent proceedings i.e. the judgments passed by learned courts below, are also quashed and set-aside, as a consequence of which, petitioners-accused are acquitted of the offences in terms of settlement arrived inter-se parties. In view of the above, present petition is disposed of alongwith pending applications if any.
16th March, 2022 (Sandeep Sharma),
(manjit) Judge
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