Jammu & Kashmir High Court
Seema Sharma And Anr. vs State And Ors. on 29 August, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Petition u/s 561-A No.259/2016 &MP No.01/2016
Date of order:-29.08.2017
Seema Sharma & anr. V. State and ors.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta
Appearing Counsel:
For the petitioner(s): Mr. M. I. Sherkhan, Advocate.
For the respondent(s)
i. Whether approved for
reporting in Press/Media : Yes/No/Optional
ii. Whether to be reported in
Digest/Journal : Yes/No
1. Through the medium of instant petition, petitioners had sought quashing of
FIR No.53/2012 dated 01.05.2012 registered at Police Station Hiranagar
under Section 294 RPC as also quashing of challan pending in the Court of
JMIC Hiranagar. Petitioners also sought permission to allow them to enter
into a compromise.
2. This Court vide order dated 04.08.2017, on the statement made by learned
counsel for the petitioners that the complainant and the accused person(s)
have entered into a compromise, directed learned counsel to produce the
petitioners before Registrar Judicial along with original compromise deed
for recording statements with regard to authenticity of said compromise
deed.
561-A Cr.P.C. No.259 of 2016 Page 1 of 9
3. Registrar Judicial has recorded the statements of the petitioners. Statement
of the petitioners recorded are placed on record. The same reads:-
Petitioner No.1 in her deposition stated that she has entered into the
compromise with Vikas Padha S/o Sh. Sudesh Raj Padha R/o Diyani,
Tehsil and District Samba and has settled the matter with respect to the
pendency of Criminal Challan bearing File No.44 dated 02.07.2012 arising
out of FIR No.53/2012 dated 30.04.2012 under Section 294 of RPC
registered at Police Station Hiranagar. Since, the complainant has entered
into the compromise with Mr. Vikas Padha, she does not want to press the
instant petition and the same may be dismissed. She further admits the
contents of the Compromise Deed and states the same to be authentic.
Whereas petitioner No.2, in his deposition stated that he has entered into
the compromise with Seema Sharma W/o Vishal Singh Sambyal R/o Kali
Mandi, Tehsil & District Samba and has settled the matter with respect to
the pendency of Criminal Challan bearing File No.44 dated 02.07.2012
arising out of FIR No.53/2012 dated 30.04.2012 under Section 294 of RPC
registered at Police Station Hiranagar. Since, petitioner No.2 has entered
into compromise with Ms. Seema Sharma, he does not want to press the
instant petition and the same may be dismissed. He further admits the
contents of the Compromise Deed and states the same to be authentic
4. Bare perusal of the statements placed on record, it is evident that parties
have entered into a compromise whereby they have settled the matter and
also prayed for allowing the instant petition.
5. Learned counsel for the petitioners has also relied upon the judgment of
Hon'ble the Supreme Court in case titled "Jagdish Chanana & ors. vs
State of Haryana & anr." reported in 2008 AIR (SC) 1968. It is apt to
reproduce paragraph 2 of the aforesaid judgment as under:
561-A Cr.P.C. No.259 of 2016 Page 2 of 9
"2. This appeal is directed against the order dated 24th July, 2006
rejecting the prayer for quashing of FIR No.83 dated 12th March 2005
P.S.City Sonepat registered under Sections 419, 420, 406, 465, 468,
471, 472, 474 read with Section 34 of the IPC. During the pendency of
these proceedings in this Court, Crl. Misc. Petition No.42/2008 has
been filed putting on record a compromise deed dated 30th April, 2007.
The fact that a compromise has indeed been recorded is admitted by all
sides and in terms of the compromise the disputes which are purely
personal in nature and arise out of commercial transactions, have been
settled in terms of the compromise with one of the terms of the
compromise being that proceedings pending in Court may be
withdrawn or compromised or quashed, as the case may be. In the light
of the compromise, it is unlikely that the prosecution will succeed in the
matter. We also see that the dispute is a purely personal one and no
public policy is involved in the transactions that had been entered into
between the parties. To continue with the proceedings, therefore, would
be a futile exercise. We accordingly allow the appeal and quash FIR
No.83 dated 12th March 2005 P.S.City Sonepat and all consequent
proceedings."
6. The detail law with regard to quashing of FIR in non-bailable offences on
the grounds that parties have compromised has been given by Hon'ble
Apex Court in 2014 (2) CRIMES SC-1 in case titled CBI ACB Mumbai
vs Narendra Lal Jain & Ors. holding as under:-
"6. We have heard Mr. P.P. Malhotra, learned Additional Solicitor General
appearing on behalf of the appellant and Mr. Sushil Karanjkar, learned
counsel appearing on behalf of Respondent Nos. 1 and 4.
7. Shri Malhotra, learned Additional Solicitor General, has taken us through
the order passed by the High Court. He has submitted that the High Court had
quashed the criminal proceeding registered against the accused- respondents
only on the ground that the civil liability of the respondents had been settled by
the consent terms recorded in the decree passed in the suits. Shri Malhotra has
submitted that when a criminal offence is plainly disclosed, settlement of the
civil liability, though arising from the same facts, cannot be a sufficient
justification for the premature termination of the criminal case. Shri Malhotra
has also submitted that the offence under Section 120-B alleged against the
accused-respondents is not compoundable under Section 320 Cr.P.C.; so also
the offences under the PC Act. Relying on the decision of a three Judges
Bench of this Court in Gian Singh vs. State of Punjab and Another[1], Shri
Malhotra has submitted that though it has been held that the power of the
High Court under Section 482 Cr.P.C. is distinct and different from the power
vested in a criminal Court for compounding of offence under Section 320 of
561-A Cr.P.C. No.259 of 2016 Page 3 of 9
the Cr.P.C., it was made clear that the High Court must have due regard to the
nature and gravity of the offences alleged before proceeding to exercise the
power under Section 482 Cr.P.C. Specifically drawing the attention of the
Court to para 61 of the report in Gian Singh (supra) Shri Malhotra has
submitted that "any compromise between the victim and the offender in
relation to the offences under special statutes like the Prevention of
Corruption Act.... cannot provide for any basis for quashing criminal
proceeding involving such offences". Shri Malhotra had contended that
having regard to the gravity of the offences alleged, which offences are prima
facie made out, in as much as charges have been framed for the trial of the
accused- respondents, the High Court was not justified in quashing the
criminal proceedings against the accused-respondents.
8. Per contra, the learned counsel for the respondents (accused) have
submitted that the High Court, while quashing the criminal proceedings
against the respondents (accused), had correctly relied on the judgments of
this Court in Central Bureau of Investigation, SPE, SIU(X), New Delhi vs.
Duncans Agro Industries Ltd., Calcutta[2] and B.S.Joshi and Others vs. State
of Haryana and Another[3]. Learned counsel has submitted that though
simultaneous criminal and civil action on same set of facts would be
maintainable, in Duncans Agro Industries Ltd. (supra) it has been held that
the disposal of the civil suit for recovery, on compromise upon receipt of
payments by the claimants, would amount to compounding of offence of
cheating. No error is, therefore, disclosed in the order of the High Court
insofar as the offence under Section 420 IPC is concerned. As for the offence
under Section 120-B it is submitted that this Court in B.S. Joshi (supra) has
held that the power under Section 482 Cr.P.C. to quash a criminal proceeding
is not limited by the provisions of Section 320 Cr.P.C. and even if an offence is
not compoundable under Section 320 Cr.P.C., the same would not act as a bar
for the exercise of power under Section 482 Cr.P.C. As the dispute between the
parties have been settled on the terms of the compromise decrees, it is
submitted that the High Court had correctly applied the principles laid down in
B.S. Joshi (supra) to the facts of the present case.
9. Learned counsel has further pointed out that the charges framed against the
accused-respondents are under Section 120-B/420 of the Indian Penal Code
and the respondents not being public servants, no substantive offence under
the PC Act can be alleged against them. The relevance of the views expressed
in para 61 of the judgment of this Court in Gian Singh (supra), noted above, to
the present case is seriously disputed by the learned counsel in view of the
offences alleged against the respondents. Learned counsel has also submitted
that by the very same impugned order of the High Court the criminal
proceeding against one Nikhil Merchant was declined to be quashed on the
ground that offences under Sections 468 and 471 of the IPC had been alleged
against the said accused. Aggrieved by the order of the High Court the accused
had moved this Court under Article 136 of the Constitution. In the decision
561-A Cr.P.C. No.259 of 2016 Page 4 of 9
reported in Nikhil Merchant vs. Central Bureau of Investigation and
Another[4] this Court understood the charges/allegations against the aforesaid
Nikhil Merchant in the same terms as in the case of the accused-respondents,
as already highlighted. Taking into consideration the ratio laid down in B.S.
Joshi (supra) and the compromise between the bank and the accused Nikhil
Merchant (on the same terms as in the present case) the proceeding against
the said accused i.e. Nikhil Merchant was quashed by the Court taking the
view that the power and the Section 482 Cr.P.C. and of this Court under
Article 142 of the Constitution cannot be circumscribed by the provisions of
Section 320 Cr.P.C. It is further submitted by the learned counsel that the
correctness of the view in B.S. Joshi (supra) and Nikhil Merchant (supra)
were referred to the three Judges Bench in Gian Singh (supra). As already
noted, the opinion expressed in Gian Singh (supra) is that the power of the
High Court to quash a criminal proceeding under Section 482 Cr.P.C. is
distinct and different from the power vested in a criminal court by Section 320
Cr.P.C. to compound an offence. The conclusion in Gian Singh (supra),
therefore, was that the decisions rendered in B.S. Joshi (supra) and Nikhil
Merchant (supra) are correct.
10. In the present case, as already seen, the offence with which the accused-
respondents had been charged are under Section 120-B/420 of the Indian
Penal Code. The civil liability of the respondents to pay the amount to the
bank has already been settled amicably. The terms of such settlement have
been extracted above. No subsisting grievance of the bank in this regard has
been brought to the notice of the Court. While the offence under Section 420
IPC is compoundable the offence under Section 120- B is not. To the latter
offence the ratio laid down in B.S. Joshi (supra) and Nikhil Merchant
(supra) would apply if the facts of the given case would so justify. The
observation in Gian Singh (supra) (para 61) will not be attracted in the
present case in view of the offences alleged i.e. under Sections 420/120B
IPC.
11. In the present case, having regard to the fact that the liability to make
good the monetary loss suffered by the bank had been mutually settled
between the parties and the accused had accepted the liability in this
regard, the High Court had thought it fit to invoke its power under Section
482 Cr.P.C. We do not see how such exercise of power can be faulted or
held to be erroneous. Section 482 of the Code inheres in the High Court the
power to make such order as may be considered necessary to, inter alia,
prevent the abuse of the process of law or to serve the ends of justice. While
it will be wholly unnecessary to revert or refer to the settled position in law
with regard to the contours of the power available under Section 482
Cr.P.C. it must be remembered that continuance of a criminal proceeding
which is likely to become oppressive or may partake the character of a lame
prosecution would be good ground to invoke the extraordinary power under
Section 482 Cr.P.C."
561-A Cr.P.C. No.259 of 2016 Page 5 of 9
7. In case titled Central Bureau of Investigation vs Sadhu Ram Singla & ors
reported in 2017 AIR (SC) 1312. It is apt to reproduce paragraphs 8 to 16
as under:
"8. We have heard learned Additional Solicitor General appearing for
the CBI and learned senior counsel appearing for the respondents at length
and carefully examined the materials placed on record. We have also taken
notice of the fact that the counsel for the appellant in High Court had
sought time for filing the reply but no reply was filed. We have also taken
notice of the fact that the High Court while quashing the said FIR and
consequential proceedings, has relied on the Full Bench judgment of that
High Court in the case of Kulwinder Singh & Ors Vs. State of Punjab &
Anr., 2007 (4) CTC 769, in which reliance was placed on the judgment
delivered by this Court in the case of Mrs. Shakuntala Sawhney Vs. Mrs.
Kaushalya Sawhney & Ors., (1980) 1 SCC 63.
9. Learned Additional Solicitor General appearing for the CBI has
drawn our attention to the decision of this Court in Manoj Sharma Vs. State
& Ors., (2008) 16 SCC 1, wherein it was observed by this Court:
"22. Since Section 320 CrPC has clearly stated which offences
are compoundable and which are not, the High Court or even
this Court would not ordinarily be justified in doing
something indirectly which could not be done directly. Even
otherwise, it ordinarily would not be a legitimate exercise of
judicial power under Article 226 of the Constitution or under
Section 482 CrPC to direct doing something which CrPC has
expressly prohibited. Section 320(9) CrPC expressly states
that no offence shall be compounded except as provided by
that Section. Hence, in my opinion, it would ordinarily not be
a legitimate exercise of judicial power to direct compounding
of a non-compoundable offence."
10. We further wish to supply emphasis on the judgment delivered by
this Court in the case of State of Tamil Nadu Vs. R. Vasanthi Stanley &
Anr., (2016) 1 SCC 376, wherein it was observed:
"15. As far as the load on the criminal justice dispensation
system is concerned it has an insegregable nexus with speedy
trial. A grave criminal offence or serious economic offence or
for that matter the offence that has the potentiality to create a
dent in the financial health of the institutions, is not to be
quashed on the ground that there is delay in trial or the
principle that when the matter has been settled it should be
quashed to avoid the load on the system. That can never be an
561-A Cr.P.C. No.259 of 2016 Page 6 of 9
acceptable principle or parameter, for that would amount to
destroying the stem cells of law and order in many a realm
and further strengthen the marrows of the unscrupulous
litigations. Such a situation should never be conceived of."
11. Further reliance was placed on the decision of this Court in the case
of Central Bureau of Investigation Vs. A. Ravishankar Prasad & Ors.,
(2009) 6 SCC 351, wherein it was held:
"39. Careful analysis of all these judgments clearly reveals
that the exercise of inherent powers would entirely depend on
the facts and circumstances of each case. The object of
incorporating inherent powers in the Code is to prevent abuse
of the process of the court or to secure ends of justice."
12. Lastly, reliance was placed upon another judgment of this Court in
Central Bureau of Investigation Vs. Maninder Singh, (2016) 1 SCC 389,
wherein it was held by this Court:
"19. In this case, the High Court while exercising its inherent
power ignored all the facts viz. the impact of the offence, the
use of the State machinery to keep the matter pending for so
many years coupled with the fraudulent conduct of the
respondent. Considering the facts and circumstances of the
case at hand in the light of the decision in Vikram Anantrai
Doshi case, (2014) 15 SCC 29, the order of the High Court
cannot be sustained."
13. Resisting the aforesaid submissions it was canvassed by Mr.
Bishwajit Bhattacharya, learned senior counsel appearing for the
respondents that High Court has judiciously and rightly considered the
facts and circumstances of the present case. Relying upon the judgment of
this Court in Gian Singh Vs. State of Punjab & Anr., (2012) 10 SCC 303,
learned senior counsel appearing for the respondents strenuously urged
that the offences in the present case are not heinous offences. He further
drew our attention towards the relevant part of Full Bench judgment of the
High Court in Kulwinder Singh & Ors. Vs. State of Punjab & Anr. (supra),
which was reproduced in the impugned judgment and the same is
reproduced hereunder:
"26. In Mrs. Shakuntala Sawhney v. Mrs. Kaushalya
Sawhney & Ors.,(1980) 1 SCC 63, Hon'ble Krishna Iyer, J.
aptly summed up the essence of compromise in the following words :-
561-A Cr.P.C. No.259 of 2016 Page 7 of 9The finest hour of justice arrives propitiously when parties, despite falling apart, bury the hatchet and weave a sense of fellowship or reunion.
27. The power to do complete justice is the very essence of every judicial justice dispensation system. It cannot be diluted by distorted perceptions and is not a slave to anything; except to the caution and circumspection, the standards of which the Court sets before it, in exercise of such plenary and unfettered power inherently vested in it while donning the cloak of compassion to achieve the ends of justice. No embargo, be in the shape of Section 320(9) of the Cr.P.C. or any other such curtailment, can whittle down the power under Section 482 of the Cr.P.C."
14. Since the present case pertains to the crucial doctrine of judicial restraint, we are of the considered opinion that encroaching into the right of the other organ of the government would tantamount clear violation of the rule of law which is one of the basic structure of the Constitution of India.
We wish to supply emphasis on para 21 of the Manoj Sharma's case (supra) which is as follows:
"21. Ordinarily, we would have agreed with Mr. B.B. Singh. The doctrine of judicial restraint which has been emphasised repeatedly by this Court e.g. in Aravali Golf Club v. Chander Hass (2008) 1 SCC 683 and Govt. of A.P. v. P. Laxmi Devi (2008) 4 SCC 720, restricts the power of the Court and does not permit the Court to ordinarily encroach into the legislative or executive domain. As observed by this Court in the above decisions, there is a broad separation of powers in the Constitution and it would not be proper for one organ of the State to encroach into the domain of another organ."
15. Having carefully considered the singular facts and circumstances of the present case, and also the law relating to the continuance of criminal cases where the complainant and the accused had settled their differences and had arrived at an amicable arrangement, we see no reason to differ with the view taken in Manoj Sharma's case (supra) and several decisions of this Court delivered thereafter with respect to the doctrine of judicial restraint. In concluding hereinabove, we are not unmindful of the view recorded in the decisions cited at the Bar that depending on the attendant facts, continuance of the criminal proceedings, after a compromise has been arrived at between the complainant and the accused, would amount to abuse of process of Court and an exercise in futility since the trial would be prolonged and ultimately, it may end in a decision which may be of no consequence to any of the parties."
561-A Cr.P.C. No.259 of 2016 Page 8 of 98. Further, as the complainant/petitioner No.1 has effected compromise with petitioner No.2, so there would be no chance of conviction in near future in case trial is held and concluded.
9. In view of the above law, this petition is allowed.
10. Consequently, FIR No.53/2012 dated 01.05.2012 registered at Police Station Hiranagar under Section 294 RPC as also challan pending in the Court of JMIC Hiranagar, are hereby quashed in view of compromise arrived at between the parties.
11. Copy of this order be sent to the Court below for compliance.
(Sanjay Kumar Gupta) Judge Jammu 29.08.2017 Narinder 561-A Cr.P.C. No.259 of 2016 Page 9 of 9