Himachal Pradesh High Court
Subhash Chand vs State Of Himachal Pradesh And Others on 3 January, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr.MMO No. 783 of 2019
Reserved on : 27-12-2019
Date of decision : 03-01-2020
Subhash Chand ... Petitioners.
Versus
State of Himachal Pradesh and others ...Respondents
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 No For the Petitioners : Mr. Rajesh Kumar Parmar and Ms. Shivani Tegta, Advocates, Proxy Counsel.
For the Respondents : Mr. Nand Lal Thakur, Additional Advocate General, for Respondents No.1 to 3/ State. Complainant in person with Ms. Suchitra Sen, Advocate.
Anoop Chitkara, Judge The Accused, after compromising the entire matter with the complainant, has come up before this Court under Section 482 CrPC., by invoking inherent powers, seeking quashing of FIR No.29/2018 dated 11.2.2018 under Section 354-D of IPC, in the file of Police Station, Gagret, District Una, Himachal Pradesh, and all subsequent proceedings.
1Whether reporters of Local Papers may be allowed to see the judgment?
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2. The present F.I.R. stands registered on the basis of information .
given by Smt. K., aged 44 years, who has been arrayed as respondent No.4 in the present petition and Ms. Suchitra Sen Advocate, duly represents her.
3. FACTS: The gist of the entire case is as follows:
a) The 4th respondent, Ms. K. aged 44 years, who is a widow made the complaint in the Police Station, Gagret, District Una, H.P. alleging that on Feb. 9, 2018 at 8:30 a.m., one person made a phone call on her mobile number. He did not tell his name, but started talking obscene things. He offered her money and pressured her to meet and when she resisted he did not stop and kept on talking. On which, getting frustrated, she disconnected the call. Even after that, he kept on calling. On getting the number verified from mobile App "True Caller", he named revealed as "Subhash". On the basis of such allegations, the police registered the aforesaid FIR.
b) Now the parties have entered into a written compromise which has been placed on record as Annexure P-2.
c) Respondents No.4, Smt. K, had put in appearance and made statement on oath that she has compromised the entire matter with the accused Subhash Chand. The statement has been taken on file.::: Downloaded on - 04/01/2020 20:27:31 :::HCHP
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4. REASONING: The following aspects would be relevant to arrive at a .
final conclusion in this petition: -
a) The private respondents No.4 stated that after the registration of FIR, the parties, who were previously known to each other, want to keep good relations.
b) The complainant has amicably settled the matter with the petitioner without any coercion, duress, pressure or any wrong tactics.
c) Although, the withdrawal of FIR would be through District Magistrate as a normal procedure. However, there is inherent jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure to intervene in such kind of matter. It is not the requirement of law that the cancellation has to be approved only through the District Magistrate. Inherent Jurisdiction of High Court under Section 482 CrPC can always be exercised, depending upon the facts and circumstances of each and every case.
d) Even if, this case is put to trial, the parties are likely to maintain the stand which they have taken in this compromise, which is likely to result in the acquittal of the accused.
e) Apart from the compromise, it is revealed that in the FIR, the victim stated that the caller was not known to her, however, in the compromise deed, she specifically mentions that both of them ::: Downloaded on - 04/01/2020 20:27:31 :::HCHP ...4...
know each other since long. On this ground alone, this is a matter where the proceedings must come to an end.
.
5. STAGE OF QUASHING FIR:
a) In Ashok Chaturvedi and others v. Shitul H. Chanchani and another, 1998(7) SCC 698, Hon'ble Supreme Court holds that the determination of the question as regards the propriety of the order of the Magistrate taking cognizance and issuing process need not necessarily wait till the stage of framing the charge. The Court observed thus: -
"5.... .... ....This argument, however, does not appeal to us inasmuch as merely because an accused has a right to plead at the time of framing of charges that there is no sufficient material for such framing of charges as provided in Section 245 of the Criminal Procedure Code, he is debarred from approaching the court even at an earliest (sic earlier) point of time when the Magistrate takes cognizance of the offence and summons the accused to appear to contend that the very issuance of the order of taking cognizance is invalid on the ground that no offence can be said to have been made out on the allegations made in the complaint petition. It has been held in a number of cases that power under Section 482 has to be exercised sparingly and in the interest of justice. But allowing the criminal proceeding to continue even where the ::: Downloaded on - 04/01/2020 20:27:31 :::HCHP ...5...
allegations in the complaint petition do not make out any offence would be tantamount to an abuse of the process of court, and .
therefore, there cannot be any dispute that in such case power under Section 482 of the Code can be exercised."
b) In Kunstocom Electronics (I) Pvt. Ltd. v. Gilt Pack Ltd. and another, (2002) 2 SCC 383, Hon'ble Supreme Court holds as under: -
"8. .... .... ....There is no hard and fast rule that the objection as to cognizability of offence and maintainability of the complaint should be allowed to be raised only at the time of framing the charge."
6. JUDICIAL PRECEDENTS ON JURISPRUDENCE OF QUASHING:
a) In R.P. Kapur v. State of Punjab, AIR 1960 SC 866, a three Judges Bench of Hon'ble Supreme Court observed as under: -
"6. .... ... ...It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Ordinarily, criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent ::: Downloaded on - 04/01/2020 20:27:31 :::HCHP ...6...
jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for .
quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the Court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, the High Court would be justified in quashing the proceedings on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such case, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal Court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations ::: Downloaded on - 04/01/2020 20:27:31 :::HCHP ...7...
made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the .
case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under S. 561-A, the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not.
That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under S. 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point (Vide : In Re: Shripad G. Chandavarkar, AIR 1928 Bom 184, Jagat Chandra Mozumdar v. Queen Empress, ILR 26 Cal 786, Dr. Shankar Singh v. State of Punjab, 56 Pun LR 54 : (AIR 1954 Punj 193), Nripendra Bhusan Roy v. Gobina Bandhu Majumdar, AIR 1924 Cal 1018 and Ramanathan Chettiyar v. Sivarama Subramania, ILR 47 Mad 722 : (AIR 1925 Mad 39)."::: Downloaded on - 04/01/2020 20:27:31 :::HCHP
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b) In Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao .
Angre, 1988 (1) SCC 692, a three judges' bench of the Hon'ble Supreme Court holds: -
"7. The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."
7. JUDICIAL PRECEDENTS ON QUASHING ON COMPROMISE:
a) A three Judge 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:
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"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 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 ::: Downloaded on - 04/01/2020 20:27:31 :::HCHP ...10...
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.
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 ::: Downloaded on - 04/01/2020 20:27:31 :::HCHP ...11...
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 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."
b) In Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Ors. vs. State of Gujarat & anr., (2017) 9 SCC 641, a Three Judge Bench ::: Downloaded on - 04/01/2020 20:27:31 :::HCHP ...12...
of Hon'ble Supreme Court, laid down the broad principles for quashing of FIR, which are reproduced as follows:
.
"16. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions:
16 (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 recognises and preserves powers which inhere in the High Court; 16 (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 Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-
compoundable.
16 (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 ::: Downloaded on - 04/01/2020 20:27:31 :::HCHP ...13...
must evaluate whether the ends of justice would justify the exercise of the inherent power;
.
16 (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;
16 (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;
16 (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 such cases is founded on the overriding element of public interest in punishing persons for serious offences;::: Downloaded on - 04/01/2020 20:27:31 :::HCHP
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16 (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;
16 (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;
16 (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 16 (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 ::: Downloaded on - 04/01/2020 20:27:31 :::HCHP ...15...
the act complained of upon the financial or economic system will weigh in the balance."
.
8. In the present case, the offence under Section 354-D IPC is not compoundable under Section 320 CrPC. Be that as it may, the inherent jurisdiction under Section 482 CrPC. can be invoked to quash the FIR and subsequent proceedings.
NON-COMPOUNDABLE OFFENCES CAN BE QUASHED:
9. In the present case, the offences are not compoundable under section 320 CrPC. However, in view of the entire facts and circumstances of the case, the inherent jurisdiction under section 482 CrPC can be invoked to quash the FIR and subsequent proceedings.
10. In Mahesh Chand v. State of Rajasthan, 1990 SCC 781 the Hon'ble Supreme Court holds as under:
"2. The accused were acquitted by the trial court, but they were convicted by the High Court for the offence under section 307 Indian Penal Code This offence is not compoundable under law. The parties, however. want to treat it a special case, in view of the peculiar circumstances of the case. It is said and indeed not disputed that one of the accused is a lawyer practising in the lower court. There was a ::: Downloaded on - 04/01/2020 20:27:31 :::HCHP ...16...
counter case arising out of the same transaction. It is said that this case has already been compromised. The decision .
of this Court in Suresh Babu v. State of Andhra Pradesh, 1987(2) JT 361, has been also referred to in support of the plea for permission to compound the offence.
3. We gave our anxious consideration to the case and also the plea put forward for seeking permission to compound the offence. After examining the nature of the case and the circumstances under which the offence was committed, it may be proper that the trial court shall permit them to compound the offence."
11. In Y. Suresh Babu v State of A.P., 2005 (1) SCC 347, Hon'ble Supreme Court, while dealing with section 326 of IPC, which was non-
compoundable offence, permitted the parties to compound the offence.
12. In Bharti v. State of Haryana, 2014(4) SCC 14, Hon'ble Supreme Court holds as under:
"6. We are mindful of the fact that Section 354 of the IPC is, as of today, non-compoundable. But, as noticed by us, it was compoundable when the instant offence was committed with the permission of the court. Even then, we would have hesitated to permit compounding of the offence. But, facts of this case are very peculiar. Respondent No.2 and her husband have, even today, maintained their stand taken in the trial court that they have entered into a compromise with the appellant. As we ::: Downloaded on - 04/01/2020 20:27:31 :::HCHP ...17...
have already noted, respondent No.2 has filed an affidavit to that effect in this Court. Compromise is, therefore, not .
an afterthought. Pertinently, the incident in question took- place way back in the year 2000. About 13 long years have gone-by. In her affidavit respondent No. 2 has stated that the appellant is her neighbour and they are staying peacefully since 2000 till date. We are of the opinion that since the appellant and respondent No. 2 are neighbours it would be in the interest of justice to permit the parties to compound the offences. If the conviction is confirmed, the relations may get strained and the peace, which is now prevailing between the two families, may be disturbed. In the peculiar facts of this case, therefore, in order to accord quietus to the disputes between the appellant and respondent No. 2 and in the larger interest of peace, we permit the appellant and respondent No. 2 to compound the offences. Accordingly, offences under Sections 451 and 354 of the IPC are permitted to be compounded. The impugned judgment is set aside. The appellant is acquitted.
The appellant-Bharti is in jail. The appellant-Bharti should be released forthwith, unless he is required in any other case."
13. In Saloni Rupam Bhartiya v. Rupam Prahlad Bhartiya, 2015(4) R.C.R.(Criminal) 172, a three Judges Bench of Hon'ble Supreme Court, while ::: Downloaded on - 04/01/2020 20:27:31 :::HCHP ...18...
dealing with Section 498-A of IPC, which was non-compoundable offence, .
holds as follows:
"It was submitted by learned counsel for the parties that in the light of the above subsequent developments especially the fact that the marriage between the parties itself stands dissolved by a decree passed by a competent court, nothing really remained between the parties to be addressed and that the conviction of the respondent- husband under Section 498A of the Indian Penal Code could be set aside. We see no reason to decline that prayer. In the circumstances, therefore, and in the light of the fact that the parties have successfully negotiated an amicable settlement sinking and resolving all their differences and disputes and finding a lasting solution on all the outstanding issues between themselves, we see no reason why the conviction recorded by the courts below and the sentence of imprisonment till the rising of the Court, which the respondent has already undergone should continue to blemish the respondent-husband. We accordingly set aside the judgment and order of conviction of the respondent under Section 498A of the Indian Penal Code."::: Downloaded on - 04/01/2020 20:27:31 :::HCHP
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14. 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 continuation of these proceedings will not only cause unnecessary burden on the trial Courts, but in all likelihood, is going to cause distressing hardship on both the victim as well as the accused, without resulting into any fruitful purpose whatsoever. Moreover, our trial Courts are already burdened with so many cases and it will be a total wastage of the valuable time of the Courts. If these types of proceedings are permitted to be continued and the accused are prosecuted, it will serve no purpose whatsoever. Therefore, 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 Procedure is invoked to quash the above mentioned FIR and consequent proceedings.
15. 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 ::: Downloaded on - 04/01/2020 20:27:31 :::HCHP ...20...
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:
16. In Shakuntala Sawhney v. Kaushalya Sawhney, (1979) 3 SCR 639, 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."
17. Consequently, this petition is allowed and FIR No.29/2018 dated 11.2.2018 under Section 354-D of IPC, in the file of Police Station, Gagret, District Una, Himachal Pradesh, is quashed qua the petitioner. Since the FIR has been quashed, all the consequential proceedings, if any, are also quashed and set aside. The bail bonds are accordingly discharged.
Petition is allowed. All pending application(s), if any, also stand disposed of.
(Anoop Chitkara), Judge.
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