Himachal Pradesh High Court
Bimla Devi And Others vs State Of Himachal Pradesh And Another on 1 August, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr.MMO No. 73 of 2017.
Date of decision: 01.08.2017.
Bimla Devi and others .....Petitioners.
Versus
State of Himachal Pradesh and another ..... Respondents.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1No For the Petitioners : Mr. Ashok Kumar Verma, Advocate.
For the Respondents : Ms. Meenakshi Sharma, Addl. A.G. with Mr. Ramesh Thakur, Dy. A.G., for respondent No.1.
Mr. Devinder K. Sharma, Advocate, for respondent No.2.
Tarlok Singh Chauhan, Judge (Oral).
When the matter came up on 11.7.2017, this Court passed the following order:
"Looking to the nature of controversy, I feel it is a fit case where parties can jointly sit down and settle the dispute. Accordingly, Shri S.C. Sharma, Advocate, is appointed as Mediator. Let, parties to appear before the learned Mediator during the course of the day."
2. It is heartening to note that the parties have amicably settled the dispute and have executed a compromise deed in the following terms:
"Compromise deed"
This deed of compromise is executed between Smt. Bimla Devi, wife of Sh. Khayali Ram, Smt. Sunita Devi, wife of Sh. Ramesh Chand, Ramesh Chand son of Sh. Khayali Ram, Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 03/08/2017 23:56:54 :::HCHP 2 residents of Village Manyoh,P.O. Tihra, Tehsil Sarkaghat, District Mandi, H.P. (hereinafter referred to as first party) and .
Sh. Parhalad Chand, son of Sh. Shankar Dass, R/o Village Manyoh, P.O. Tihra, Tehsil Sarkaghat, District Mandi, H.P. (hereinafter referred to as second party), on this 25th day of July, 2017 on the following terms:
1. That both the parties have settled their disputes amicably without any undue influence, coercion and fraud for the reasons that they are neighbourer to each other.
2. That Smt. Bimla Devi, wife of late Sh. Khayali Ram has lodged an FIR No. 199/2015, dated 10.8.2015, registered at Police Station, Sarkaghat, District Mandi under Sections 341, 323, 504, 506 IPC and challan has been put in the Court of Ld. Additional Chief Judicial Magistrate, Sarkaghat, District Mandi, under Sections 341, 325 and 504 IPC against Sh. Parhalad Chand (second party) and is fixed for hearing on 16.9.2017.
3. That the second party has also filed a private complaint No. 19 of 2015 titled as Parhalad Chand vs. Bimla Devi and others, in the Court of Ld. Additional Chief Judicial Magistrate, Sarkaghat, District Mandi, under Sections 323, 452, 504, 506 read with Section 34 of IPC against the first party. The first party has approached this Hon'ble High Court for quashing the summons issued in the aforesaid complaint.
4. That both the parties have agreed in principle to compromise all the disputes between themselves amicably and agreed not to pursue FIR and consequent proceedings thereto and complaint filed against each other. Both the parties are having no objection in case the FIR No. 199/2015, dated 10.8.2015 and subsequent proceedings titled as State of H.P. vs. Parhalad Chand pending in the Court of Additional Chief Judicial Magistrate, Sarkaghat, and Criminal Complaint No. 19/2015 titled as Parhalad Chand vs. Bimla Devi and Ors. are quashed in order to keep peace, harmony and tranquility between the parties.
::: Downloaded on - 03/08/2017 23:56:54 :::HCHP 35. That the first party have agreed to regulate the flow of water of their house through a pipe which will be laid down .
beneath the projection (Chajja) of the house of first party and this underground pipe shall be laid down upto common path existing upon the spot and it shall be further extended upto road. Both the parties will make a request to concerned Gram Panchayat to extend the flow of water through pipe/drain from common path to main road. It is pertinent to mention here that all the expenses shall be beared upon by the first party for the construction of aforesaid work and other party shall cooperate.
6. That the second party shall lay down a pipe from his house to common chamber in order to channelize the water of his house and shall bear the expenses for this work.
7. That both the parties have agreed not to interfere in the possession of each other land and shall not cause any kind of damage or loss in the land as well as house of each other.
8. That the first party shall complete the aforesaid construction of underground pipe by 31st December, 2017 at his own expenses whereas second party will duly cooperate with the first party during construction work of underground pipe.
9. That Sh. Ramesh Chand, son of late Sh. Khayali Ram, is duly authorized by the representatives namely Smt. Bimla Devi and Smt. Sunita Devi by way of Special Power of Attorney dated 21.7.2017 to compromise all kind of disputes on their behalf and the same is annexed herewith alongwith this compromise deed.
Their joint statements will also become a part and parcel of this compromise."
3. It would be noticed that as per the compromise deed, the matter with regard to criminal cases as mentioned in paras 2 and 3 (supra) are also required to be compromised. However, the moot question is whether this is permissible in law.
::: Downloaded on - 03/08/2017 23:56:54 :::HCHP 44. This question is no longer res integra in view of the judgment laid down by the Hon'ble Supreme Court in Narinder Singh & Ors. V. .
State of Punjab & Anr. JT 2014 (4) SC 573, wherein it was held as under:
"(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 not compoundable, where the parties have settled the matter between themselves. However, this power is t to be exercised sparingly and with caution. (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 of 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. (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 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.
(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 ::: Downloaded on - 03/08/2017 23:56:54 :::HCHP 5 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.
(VII) 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 - 03/08/2017 23:56:54 :::HCHP 65. It would be seen that prior to Narinder Singh's case (supra), .
a three Hon'ble Judges Bench had considered the relevant scope of Section 482 and 320 Cr.P.C. in Gian Singh versus State of Punjab and another (2012) 10 SCC 303 wherein it was 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.P.C. While exercising inherent power of quashment under Section 482 Cr.P.C., the Court must have due regard to the nature and gravity of the crime and its social impact. It warned the Courts, the High Court for quashing proceedings in heinous and serious offences of mental depravity, murder, rape, dacoity etc. which principles have been reported and reaffirmed in Narinder Singh's case (supra).
6. Now the further question remains whether this Court can quash the FIR where the petitioners have been charged under Sections 341, 323, 504, 506, 452 read with Section 34 IPC. This question need not detained this Court no longer in view of the judgment of the Hon'ble Supreme Court in Dimpey Gujral, W/o Vivek Gujral and others versus Union Territory through Administrator, UT, Chandigarh and others (2013) 11 SCC 497 wherein the Hon'ble Supreme Court seized of a case seeking quashment of FIR and its consequential proceedings wherein the accused had been charged under Sections 147, 148, 149, 323, 307, 452 and 506 IPC and the Hon'ble Supreme Court after relying upon the judgment of Gian Singh's case (supra) held as follows:-
"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' ::: Downloaded on - 03/08/2017 23:56:54 :::HCHP 7 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) r to "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 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 ::: Downloaded on - 03/08/2017 23:56:54 :::HCHP 8 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, the 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 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."
::: Downloaded on - 03/08/2017 23:56:54 :::HCHP 97. On the basis of the aforesaid exposition of law, this Court is of the opinion that this is a case where the continuation of the 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 personal nature and quashing FIR and proceedings would bring out peace between two sides.
8. In these circumstances, FIR No. 199/2015, dated 10.8.2015, registered at Police Station, Sarkaghat, District Mandi under Sections 341, 323, 504, 506 IPC by Smt. Bimla Devi( petitioner herein) against the respondent No.2 (herein) and criminal case pending in the Court of Ld. Additional Chief Judicial Magistrate, Sarkaghat, District Mandi, under Sections 341, 325 and 504 IPC and private complaint No. 19 of 2015 titled as Parhalad Chand vs. Bimla Devi and others, pending in the Court of Ld. Additional Chief Judicial Magistrate, Sarkaghat, District Mandi, under Sections 323, 452, 504, 506 read with Section 34 of IPC against Smt. Bimla Devi and others, are quashed. Resultantly, all the consequential proceedings emanating from the aforesaid FIR and private complaint are also quashed.
9. The petition is disposed of in the aforesaid terms, so also the pending application(s) if any. The parties are left to bear their own costs.
10. However, before parting, the Court places on record its gratitude for the valuable assistance rendered by learned Mediator Shri S.C. Sharma, Advocate in bringing the aforesaid compromise between the parties.
August 1, 2017. (Tarlok Singh Chauhan),
(GR) Judge.
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