Himachal Pradesh High Court
Anoop Gupta vs Vandana And Another on 22 October, 2019
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 563 of 2019 a/w Cr. Revision No. 39 of 2012 .
Order reserved on : 18-10-2019 Date of Decision : 22.10.2019
1. Cr.MMO No.563 of 2019 Anoop Gupta ....Petitioner.
Versus
Vandana and another ....Respondents.
....................................................................................
2. Cr. Revision No. 39 of 2012 Anoop Gupta ....Petitioner.
Versus State of Himachal Pradesh ....Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting? No. For the petitioner : Mr. Vivek Sharma, Advocate, in both petitions.
For respondents : Mr, Varun Chauhan, Advocate, for respondent No.1 in Cr. MMO No. 563 of 2019.
M/s. Ashwani K. Sharma & Nand Lal Thakur, Additional Advocate Generals with Mr. Narinder Thakur, Dy. Advocate General for respondent-State.
Whether reports of Local Papers may be allowed to see the judgment?::: Downloaded on - 23/10/2019 20:25:05 :::HCHP 2
Anoop Chitkara, Judge Cr.MMO No. 563 of 2019 .
The present petition is under Section 482 of the Code of Criminal Procedure for quashing the proceedings in case FIR No. 283/2003 dated 7.11.2003 under Sections 279, 337 of Indian Penal Code read with Sections 181 and 187 of the Motor Vehicles Act registered at Police Station Sundernagar District Mandi and also for quashing the judgment dated 16.01.2012 passed by learned Additional Sessions Judge Mandi in case Criminal Appeal No. 38 of 2008 arising out of judgment dated 18.6.2008 passed by learned Judicial Magistrate 1st Class, Court No.2, Sundernagar, District Mandi in case Police Challan No. 317-1/06 (new/76-1/04 (old) and all consequential criminal proceedings.
2. FIR No. 283 of 2003 stood registered in Police Station, Sundernagar, District Mandi on the basis of complaint made by complainant-injured, Vandana. The facts of the case are that on 7.11.2003 at about 4:20 p.m. complainant-injured, Vandana along with her sister Pooja were coming back from their school and about to cross the road, a scooter bearing registration No. HP-31-0675 came in a very high speed and hit the complainant, due to which impact she (Vandana) fell down on the road and sustained injuries on her mouth, teeth and other parts of the body. The name ::: Downloaded on - 23/10/2019 20:25:05 :::HCHP 3 of the scooter rider could not be known because he fled away from the spot.
Consequently, police conducted the investigation and came to the conclusion that accused/petitioner (Anoop Gupta) was driver of the scooter, .
hence a report under Section 173(2) of Cr.P.C. was filed for commission of offence punishable under Sections 279, 337 of IPC and Section 187 of Motor Vehicles Act.
3. The notice of accusation under Sections 279 and 337 of IPC and under Sections 181 and 187 of Motor Vehicles Act was framed against the accused by learned Judicial Magistrate 1 st Class, Court No.2, Sundernagar, District Mandi, to which accused pleaded not guilty and claimed trial.
4. After completion of the trial, learned trial court convicted the accused and sentenced him to undergo simple imprisonment for a period of three months and fine of Rs.500 for commission of offence punishable under Section 279 IPC, to undergo simple imprisonment for three months and fine of Rs. 500/- for commission of offence punishable under Section 337 IPC, fine of Rs. 100/- for offence committed under Section 181 of Motor Vehicles Act and also to undergo three months simple imprisonment and fine of Rs. 500/- for commission of offence punishable under Section 187 of Motor Vehicles Act. In default of payment of fine, convict shall undergo sentence for 15 days simple imprisonment each for the fine ::: Downloaded on - 23/10/2019 20:25:05 :::HCHP 4 imposed by the trial court under Sections 279,337 of IPC and Sections 181 and 187 of Motor Vehicles, Act, respectively. All the sentences shall run concurrently.
.
5. Feeling aggrieved, the petitioner filed an appeal before learned Additional Sessions Judge, Mandi, who vide judgment dated 16.1.2012 dismissed the appeal.
6. Challenging dismissal of the appeal, petitioner has come up 2012.
r to before this Court by filing revision petition bearing Cr. Revision No. 39 of
7. During pendency of Cr. Revision Petition, petitioner has also filed a Cr.MMO No. 563 of 2019 for quashing of entire proceedings and other consequential criminal proceedings.
8. The statement of the complainant-injured (Vandana) was recorded in the Court in which she stated that she has no objection in case present case is closed.
FACTS:
9. The gist of the entire case is as follows:
(a) The present FIR was registered on the basis of information given by complainant, Vandana.
(b) Now the parties have entered into a written compromise which has been placed on record as Annexure P2.::: Downloaded on - 23/10/2019 20:25:05 :::HCHP 5
(c) In Cr.MMO No. 563 of 2019 (respondent No.1) had put in appearance and made a statement on oath that she has compromised the entire matter with accused .
Anoop Gupta, the present petitioner. The statement is taken on file.
REASONING:
10. The following aspects would be relevant to arrive at a final conclusion in this petition:-
a) The injured person has amicably settled the matter with the accused. r
b) The entire facts and evidence, point out that accident just happened due to factors beyond the control of humans and not because of the fault of any of the driver, certainly not because of the petitioner/accused.
JUDICIAL PRECEDENTS ON QUASHING ON COMPROMISE:
11. A three Judges Bench of Hon'ble Supreme Court, in Gian Singh v. State of Punjab, 2012(10) SCC 303, has settled the law on quashing on account of compromise/compounding, in the following terms:
"53. Section 482 of the Code, as its very language suggests, saves the inherent power of the High Court which it has by virtue of it being a superior court to prevent abuse of the process of any court or otherwise to secure the ends of justice. It begins with the words, 'nothing in this Code' which means that the provision is an overriding provision. These words leave no manner of doubt that none of the provisions of the Code limits or restricts the inherent ::: Downloaded on - 23/10/2019 20:25:05 :::HCHP 6 power. The guideline for exercise of such power is provided in Section 482 itself i.e., to prevent abuse of the process of any court or otherwise to secure the ends of justice. As has been repeatedly .
stated that Section 482 confers no new powers on High Court; it merely safeguards existing inherent powers possessed by High Court necessary to prevent abuse of the process of any Court or to secure the ends of justice. It is equally well settled that the power is not to be resorted to if there is specific provision in the Code for the redress of the grievance of an aggrieved party. It should be exercised very sparingly and it should not be exercised as against the express bar of law engrafted in any other provision of the Code.
57. Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment.::: Downloaded on - 23/10/2019 20:25:05 :::HCHP 7
58. Where High Court quashes a criminal proceeding having regard to the fact that dispute between the offender and victim has been settled although offences are not compoundable, it does .
so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored;
securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrong doing that seriously endangers and threatens well-being of society and it is not safe to leave the crime- doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without permission of the Court. In respect of serious offences like murder, rape, dacoity, etc; or other offences of mental depravity under Indian Penal Code or offences of moral turpitude under special statutes, like Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between offender and victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to victim and the offender and victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal ::: Downloaded on - 23/10/2019 20:25:05 :::HCHP 8 proceeding or criminal complaint or F.I.R if it is satisfied that on the face of such settlement, there is hardly any likelihood of offender being convicted and by not quashing the criminal .
proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard and fast category can be prescribed."
12. In Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Ors. vs. State of Gujarat & anr., Criminal Appeal No. 1723 of 2017, decided on 4.10.2017, a Three Judges Bench of Hon'ble Supreme Court, laid down the broad principles for quashing of FIR, which are reproduced as follows:
"15. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions :
(i) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognizes and preserves powers which inhere in the High Court;
(ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of section 320 of the Code of Criminal ::: Downloaded on - 23/10/2019 20:25:05 :::HCHP 9 Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.
(iii) In forming an opinion whether a criminal .
proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;
(iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;
(v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;
(vi) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in ::: Downloaded on - 23/10/2019 20:25:05 :::HCHP 10 such cases is founded on the overriding element of public interest in punishing persons for serious offences;
(vii) As distinguished from serious offences, there may .
be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;
(viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;
(ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and
(x) There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance."
::: Downloaded on - 23/10/2019 20:25:05 :::HCHP 1113. In the present case, the offences are not compoundable under section 320 Cr.P.C. However, in view of the entire facts and circumstances of the case, the inherent jurisdiction under section 482 Cr.P.C. can be .
invoked to quash the FIR and subsequent proceedings.
14. A Full Bench of Madhya Bharat High Court, in State v. Gulam Meer (Madhya Bharat), AIR 1956 (Madhya Bharat) 141, holds, "16. An offence under Section 279, I.P.C. is distinct from an offence under Section 337 or Section 338, I.P.C. and, therefore, a person convicted of an offence under Section 337 or Section 338, I.P.C. can also be convicted for an offence under Section 279, I.P.C. If, however, the two offences are committed in the same transaction, Section 71, I.P.C. will govern the assessment of punishment."
15. Reference be also made to a similar petition, wherein a Co ordinate Bench of this Court had quashed the similar proceedings in Cr.MMO No. 131/2016 a/w Cr. Revision No.324/2015, decided on 27.5.2016.
16. In view of the entirety of the facts of the case, as well as judicial precedents, a few of which have been mentioned hereinabove, I am of the considered opinion that this is a fit case where the inherent jurisdiction of the High Court under Section 482 of the Code of Criminal ::: Downloaded on - 23/10/2019 20:25:05 :::HCHP 12 Procedure is invoked to quash the above mentioned FIR as well as the judgments passed by learned Judicial Magistrate 1st Class, Court No.2 Sundernagar, Distt. Mandi on 18.6.2008 and learned Additional Sessions .
Judge, Mandi, District Mandi, H.P on 16.1.2012.
17. In Himachal Pradesh Cricket Association v. State of Himachal Pradesh (SC); 2018 (4) Crimes 324, Hon'ble Supreme Court holds as under:-
"47. As far as Writ Petition (Criminal) No. 135 of 2017 is concerned, the appellants came to this Court challenging the order of cognizance only because of the reason that matter was already pending as the appellants had filed the Special Leave Petitions against the order of the High Court rejecting their petition for quashing of the FIR/Chargesheet. Having regard to these peculiar facts, writ petition has also been entertained. In any case, once we hold that FIR needs to be quashed, order of cognizance would automatically stands vitiated."
CONSEQUENCES:
18. In Shakuntala Sawhney v. Kaushalya Sawhney, (1979) 3 SCR 639, at p 642, Hon'ble Supreme Court observed as follows:
"The finest hour of Justice arise propitiously when parties, despite falling apart, bury the hatchet and weave a sense of fellowship or reunion."
19. Consequently, this petition is allowed and the F.I.R. No. 283 of 2003 dated 7.11.2003, registered at Police Station Sundernagar, District ::: Downloaded on - 23/10/2019 20:25:05 :::HCHP 13 Mandi (H.P.) for the commission of offences punishable under Sections 279 & 337 of Indian Penal Code and under Sections 181and 187 of Motor Vehicle Act are quashed. Since FIR has been quashed, all the consequential .
proceedings are also quashed and set aside.
Criminal Revision No. 39 of 2012 20 In view of the fact that Cr.MMO No. 563 of 2019 is allowed, therefore, the present Criminal Revision is also required to be allowed.
Consequently, both the judgments passed by learned trial court and learned appellate Court convicting the accused are set aside and accused is acquitted of the offence punishable under Sections 279, 337 of IPC and under Sections 181 and 187 of Motor Vehicles Act.
21. Both petitions are allowed. All pending application(s), if any, also stand disposed of. Bail bonds are accordingly discharged.
(Anoop Chitkara), Judge.
22nd October, 2019 (Guleria) ::: Downloaded on - 23/10/2019 20:25:05 :::HCHP