Himachal Pradesh High Court
Kashmir Singh And Others vs State Of Himachal Pradesh And Others on 15 December, 2016
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA.
Cr.MMO No.355 of 2016
.
Decided on : December 15, 2016
Kashmir Singh and others
....Petitioners
Versus
State of Himachal Pradesh and others
.... Respondents
of
The Hon'ble Mr. Justice Sanjay Karol, Judge.
Whether approved for reporting? No.
1
rt
For the Petitioners
For the Respondent :
: Mr. Vijay Chaudhary, Advocate.
Mr. R.S. Verma, Additional Advocate
General for State.
Mr. Nimish Gupta, Advocate for R-2 and
R-3.
Sanjay Karol, J . (oral)
Petitioners (Shri Kashmir Singh, Shri Nek Singh and Shri Bhim Sen) and respondents No.2 and 3 (Smt. Chhunko Devi and Shri Chamaru Ram), are present in Court.
2. The present petition, under Section 482 of the Code of Criminal Procedure (for short 'Code') has been preferred by the petitioners for quashing of FIR No.133 of 2007, dated 29.12.2007, under the provisions of Sections 452, 323 and 506 read with Section 34 of the Indian Penal Code, registered at Police Station, Chowari, District Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:45:00 :::HCHP 2Chamba, H.P. and also for quashing of judgment dated 1.5.2014, passed by Judicial magistrate 1s t Class, Dalhousi e, .
District Chamba, H.P., in Criminal Case No.120-II of 2008, titled as State of Himachal Pradesh vs. Kashmir Singh and others.
3. It is alleged that on 28.12.2007 at about 10:00 p.m. of when complainant-Smt. Chhunko Devi, alongwith her husband, Shri Chamaru Ram, her son Maghar Singh and her son-in-law rt Shri Parkash Chand (PW-4) were sitting in her kitchen, accused persons in furtherance of their common intention came there abusing and saying that the candidate for whom they have voted in the election has faced defeat and they will also see the complainant today. When complainant came on the door, accused No.1 caught hold her from hairs and started causing beatings to her. At the same time, complainant's husband also came on the door and accused No.1 and accused No.3 caused beatings to him also. Accused No.1 was having an iron pipe in his hand and hit the complainant's husband on his head with the same. When complainant's son Maghar Singh came on the spot, accused No.2 caused beatings to him with first and kick blows.
On hearing the commotion, Shri Parkash Chand (PW-4), who is complainant's son-in-law and Sh. Chanalu Ram (PW-6) came on ::: Downloaded on - 15/04/2017 21:45:00 :::HCHP 3 the spot and rescued the complainant and her family members.
Further, according to complainant, accused persons intimidated .
the complainant and her family members with dire consequ ences. The matter was reported to the police by the complainant, on the basis of which , present FIR came to be registered against the present petitioners.
of
4. The police after investigation presented Challan in the Court of learned Judicial Magistrate 1s t Class, Dalhousie, rt District Chamba. The petitioners were put to trial and on conclusion of trial, were convicted and sentenced under Sections 452 and 323 read with section 34 of the Indian Penal Code.
However, they were acquitted of the offences punishable under Section 506 of the Indian Penal Code. Hence, the present petition stands filed by the petitioners on the premise that the matter stands compromised between the present petitioners and respondents No.2 and 3 vide Compromise Deed dated 15.11.2016 (Annexure P-4/T).
5. When the matter came up before this Court on 8.12.2016, notice of the petition was issued to respondents No.2 and 3, which were waived by their learned counsel and the matter was fixed for 15.12.2016.
::: Downloaded on - 15/04/2017 21:45:00 :::HCHP 46. Today, the case was taken up for further consideration. Learned counsel for the petitioners states that on .
15.11.2016 matter stands compromised between the parties. It has specifically come in the compromise deed that the parties are relatives as well as neighbourers and having good relation with each other and they want to end the litigation to maintain of cordial relation in future also.
7. This is not such a case wherein the offences for which rt the petitioners have been charged can be stricto sensu held to be the offences against the State. Even otherwise, once respondents No.2 and 3 have entered into compromise in the aforesaid terms, the possibility of conviction is remote and bleak and the continuation of the criminal case against the petitioners would put them to great oppression and prejudice and extreme injustice would be caused to them by not quashing the criminal case.
8. In Narinder Singh & Ors. v. State of Punjab & Anr. JT 2014 (4) SC 573 the Hon'ble Supreme Court after summing up the legal position has laid down the following guidelines for the High Court in giving adequate treatment to the settlement between the parties and exercising its powers under Section 482 of the Code while accepting the settlement and quashing the ::: Downloaded on - 15/04/2017 21:45:00 :::HCHP 5 proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings, which reads thus:-
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"(I) 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 of not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution. rt (II) 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. (III)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.
::: Downloaded on - 15/04/2017 21:45:00 :::HCHP 6(IV)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.
(V)While exercising its powers, the High Court is to examine as to whether the possibility of conviction is of remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to rt him by not quashing the criminal cases. (VI)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 ::: Downloaded on - 15/04/2017 21:45:00 :::HCHP 7 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 of going to result in harmony between them which may improve their future relationship.
(VII) While deciding whether to exercise its power rt 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 ::: Downloaded on - 15/04/2017 21:45:00 :::HCHP 8 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 of 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 rt convict found guilty of such a crime."
9. Keeping in view the aforesaid guidelines, it is not disputed that the parties have reached a settlement and on that basis have preferred the present proceedings seeking quashment of the FIR and judgment passed by the Court below. Once respondents No.2 and 3, who are the affected person s on account of this incident, do not want to hold the petitioners responsible, the quashing of such FIR and the said judgment would definitely be to secure the ends of justice and to prevent abuse of process of the Court.
The facts of this case otherwise do not in any manner fall within the exceptions laid down by the Hon'ble Supreme Court where compromise cannot be entered into or the proceedings cannot be quashed.
::: Downloaded on - 15/04/2017 21:45:00 :::HCHP 910. Thus, taking holistic view of the matter and looking into all attending facts and circumstances, I find this .
case to be a fit case to exercise powers under Section 482 of the Code and accordingly FIR No.133 of 2007, dated 29.12.200, under the provisions of Sections 452, 323 and 506 read with Section 34 of the Indian Penal Code, of registered at Police Station, Chowari, District Chamba, H.P.., is ordered to be quashed. Since FIR has been quashed, the rt judgment dated 1.5.2014, passed by Judicial magistrate 1s t Class, Dalhousie, District Chamba, H.P., in Criminal Case No.120-II of 2008, titled as State of Himachal Pradesh vs. Kashmir Singh and others, is also quashed and set aside.
However, the same is expressly quashed so as to obviate any confusion.
With the aforesaid observations, present petition stands allowed and disposed of accordingly. Pending application(s), if any, also stand disposed of.
(Sanjay Karol),
December 15, 2016 (KS) Judge.
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