Jammu & Kashmir High Court
Gurcharan Singh & Ors. vs State And Anr. on 17 December, 2018
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRMC No.505/2018 & IA No.01/2018
Date of order: 17.12.2018
Gurcharan Singh & ors. Vs. State of J&K and another
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For Petitioner(s) : Mr. Gagan Basotra, Advocate.
For respondent (s) : Mr. C. M. Koul, Sr. AAG for respondent No.1.
Mr. Sachin Gupta, Advocate for respondent
No.2.
i) Whether to be reported in
Digest/Journal : Yes/No.
ii) Whether approved for reporting
in Press/Media : Yes/No.
1. Through the medium of instant petition filed under Section 561-A of the
Code of Criminal Procedure, petitioners seek quashing of FIR
No.104/2012 which culminated into Challan/Charge Sheet No.75/2012
titled State Vs. Gurcharan Singh, pending before the Court of learned
Judicial Magistrate, Ist Class R. S. Pura, Jammu; and Charge-sheet
No.Nil/2017 instituted on 20.11.2017 arising out of FIR No.104/2012
registered with Police Station Miran Sahib Jammu u/s 452/323/341/34
RPC and 4/25 Arms Act, titled State Vs. Harjot Singh filed before the
Court of learned Chief Judicial Magistrate, Jammu as also orders dated
30.11.2017, 02.12.2017 and 08.05.2018 passed by the CJM Jammu, on
account of compromise.
2. Pursuant to order dated 04.12.2018, Registrar Judicial of this Court has
placed on record the statements of petitioner No.1, respondent No.2 and
their respective Advocates. These statements read as under:-
CRMC No.505/2018 Page 1 of 10
Statement of Gurcharan Singh (petitioner no.1) Age : 62 years ; S/o
Bishan Singh R/o Ward No.1, Simbal Camp, Tehsil R.S.Pura, District
Jammu on oath today i.e. 04.12.2018
Stated that I am the real brother of respondent no.2. Both of us have
already decided to resolve all our pending issues including the challan /
chargesheet no.75/2012 arising of FIR No.104/2012 pending before the
court of Learned Judicial Magistrate, Ist Class, R.S.Pura, Jammu. In this
behalf an agreement dated 05.08.2018 has already been reached in
writing which is placed on record. I accordingly pray that the said
challan/chargesheet no.75/2012 be quashed along with all incidental
proceedings arising out of it.
Statement of Kuldeep Singh (respondent no.2); S/o Bishan Singh R/o
Ward No.1, Simbal Camp, Tehsil R.S.Pura, District Jammu on oath
today i.e. 04.12.2018
Stated that I am the real brother of petitioner no.1, brother in law of
petitioner no.2 and real paternal uncle of petition no.3. I have entered
into a compromise with my real brother i.e. petitioner no.1 which is
already placed on record. In order to avoid any further
misunderstanding, I do hereby consent that the challan / chargesheet
no.75/2012 arising of FIR No.104/2012 pending before the court of
Learned Judicial Magistrate, Ist Class, R.S.Pura, Jammu be quashed. I
have also no objection in case order dated 02.12.2017 passed in File
No.203/Challan and order dated 08.05.2018 attached with file
no.1230/misc. passed by the Learned Chief Judicial Magistrate Jammu
be also quashed.
Statement of Sh. Gagan Basotra, Advocate for petitioners, on oath
today i.e. 04.12.2018
Stated that the petitioner no.1 has tendered the statement in my
presence and I do hereby identify the petitioner no.1 who has deposed
the said statement before the Registrar Judicial.
Statement of Sh.Sachin Gupta, Advocate for respondent no.2, on oath
today i.e. 04.12.2018
Stated that the respondent no.2 has tendered the statement in my
presence and I do hereby identify the respondent no.2 who has
deposed the said statement before the Registrar Judicial.
CRMC No.505/2018 Page 2 of 10
3. Learned counsel for the petitioners has placed on record copy of the
compromise/agreement executed between the parties on 05.08.2018,
wherein it is stated the parties had filed counter cases against each other.
It is further stated that since both the parties are real brother and now
they have decided that they will not pursue the cases against each other.
Petitioner No.1 has filed a criminal case against respondent No.2 and the
same has been decided by the Court of Special Mobile Magistrate R. S.
Pura vide judgment dated 16.02.2018 whereby respondent No.2 and
other accused stand acquitted as the compromise has been arrived
between the parties and respondent No.2 has also decided to close cases
filed against petitioner No.1.
4. From bare perusal of compromise/agreement, would reveal that the
parties have mutually agreed not to pursue their cases further and they
have decided to withdraw the cases filed against each other in different
Courts of law.
5. A Coordinate Bench of this Court has already considered a similar issue
in 561-A No.345/2017 vide order dated 09.06.2017 wherein the petition
was allowed and the charge sheet and the proceedings against the
petitioners therein were quashed. It is apt to reproduce operative part of
the said order as under:
"Offence under Section 307 RPC is also the offence
relating to use of weapons by the petitioners are non
compoundable. However, it is stated that parties are next-
door neighbours to each other. They have buried the
hatchets and want to live as friendly neighbours. Learned
counsel for the petitioners cites a judgment of the Supreme
Court in the case of "Narinder Singh & ors. v. State of
Punjab & anr." 2014(2) Crimes (SC) 67.
Parties having entered into a compromise, trial of the
petitioners may not be fruitful. That apart, it would be in
the better interest of both the parties in case they are given
chance to materialise their intention to live as friendly
CRMC No.505/2018 Page 3 of 10
neighbours. Allowing compensation would be profitable as
compared to continuing with the trial.
Viewed thus, this petition is allowed the charge sheet
and the proceedings against the petitioners (supra) are
quashed."
6. In Yogendra Yadav & ors. Vs. State of Jharkhand & anr. reported in
2014 AIR (SC) 3055, the Hon'ble Supreme Court held has under:-
4. Now, the question before this Court is whether this Court
can compound the offences under Sections 326 and 307 of the
IPC which are non-compoundable. Needless to say that
offences which are non-compoundable cannot be compounded
by the court. Courts draw the power of compounding offences
from Section 320 of the Code. The said provision has to be
strictly followed (Gian Singh v. State of Punjab1 ). However, in
a given case, the High Court can quash a criminal proceeding
in exercise of its power under Section 482 of the Code having
regard to the fact that the parties have amicably settled their
disputes and the victim has no objection, even though the
offences are non-compoundable. In which cases the High
Court can exercise its discretion to quash the proceedings will
depend on facts and circumstances of each case. Offences
which involve moral turpitude, grave offences like rape,
murder etc. cannot be effaced by quashing the proceedings
because that will have harmful effect on the society. Such
offences cannot be said to be restricted to two individuals or
two 1 (2012) 10 SCC 303 4 Page 5 groups. If such offences are
quashed, it may send wrong signal to the society. However,
when the High Court is convinced that the offences are entirely
personal in nature and, therefore, do not affect public peace or
tranquility and where it feels that quashing of such
proceedings on account of compromise would bring about
peace and would secure ends of justice, it should not hesitate to
quash them. In such cases, the prosecution becomes a lame
prosecution. Pursuing such a lame prosecution would be waste
of time and energy. That will also unsettle the compromise and
obstruct restoration of peace.
CRMC No.505/2018 Page 4 of 10
6. Learned counsel for the parties have requested this Court
that the impugned order be set aside as the High Court has not
noticed the correct position in law in regard to quashing of
criminal proceedings when there is a compromise. Affidavit
has been filed in this Court by complainant-Anil Mandal, who
is respondent No. 2 herein. In the affidavit he has stated that a
compromise petition has been filed in the lower court. It is
further stated that he and the appellants are neighbours, that
there is harmonious relationship between the two sides and
that they are living peacefully. He has further stated that he
does not want to contest the present appeal and he has no
grievance against the appellants. Learned counsel for the
parties have confirmed that the disputes between the parties
are settled; that parties are abiding by the compromise deed
and living peacefully. They have urged that in the
circumstances pending proceedings be quashed. State of
Jharkhand has 6 Page 7 further filed an affidavit opposing the
compromise. The affidavit does not persuade us to reject the
prayer made by the appellant and the second respondent for
quashing of the proceedings.
7. In view of the compromise and in view of the legal position
which we have discussed hereinabove, we set aside the
impugned order dated 4/7/2012 and quash the proceedings in
S.C.No.9/05 pending on the file of 2nd Additional Sessions
Judge, Godda. The appeal is disposed of."
7. In case Narinder Singh and ors. Vs. State of Punjab & anr. reported
in 2014 Cr.L.J. (SC) 2436, it is held as under:-
"26. The two rival parties have amicably settled the disputes between
themselves and buried the hatchet. Not only this, they say that since they
are neighbours, they want to live like good neighbours and that was the
reason for restoring friendly ties. In such a scenario, should the court give
its imprimatur to such a settlement. The answer depends on various
incidental aspects which need serious discourse.
The Legislators has categorically recognized that those offences which are
covered by the provisions of section 320 of the Code are concededly those
not only do not fall within the category of heinous crime but also which
are personal between the parties. Therefore, this provision recognizes
whereas there is a compromise between the parties the Court is to act at
CRMC No.505/2018 Page 5 of 10
the said compromise and quash the proceedings. However, even in
respect of such offences not covered within the four corners of Section
320 of the Code, High Court is given power under Section 482 of the Code
to accept the compromise between the parties and quash the proceedings.
The guiding factor is as to whether the ends of justice would justify such
exercise of power, both the ultimate consequences may be acquittal or
dismissal of indictment. This is so recognized in various judgments taken
note of above.
29. At this juncture, we would like also to add that the timing of
settlement would also play a crucial role. If the settlement is arrived at
immediately after the alleged commission of offence when the matter is
still under investigation, the High Court may be somewhat liberal in
accepting the settlement and quashing the proceedings/investigation. Of
course, it would be after looking into the attendant circumstances as
narrated in the previous para. Likewise, when challan is submitted but
the charge has not been framed, the High Court may exercise its
discretionary jurisdiction. However, at this stage, as mentioned above,
since the report of the I.O. under Section 173,Cr.P.C. is also placed
before the Court it would become the bounding duty of the Court to go
into the said report and the evidence collected, particularly the medical
evidence relating to injury etc. sustained by the victim. This aspect,
however, would be examined along with another important
consideration, namely, in view of settlement between the parties, whether
it would be unfair or contrary to interest of justice to continue with the
criminal proceedings and whether possibility of conviction is remote and
bleak. If the Court finds the answer to this question in affirmative, then
also such a case would be a fit case for the High Court to give its stamp of
approval to the compromise arrived at between the parties, inasmuch as
in such cases no useful purpose would be served in carrying out the
criminal proceedings which in all likelihood would end in acquittal, in
any case."
8. 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.
CRMC No.505/2018 Page 6 of 10
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 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."
CRMC No.505/2018 Page 7 of 10
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 :-
The 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."CRMC No.505/2018 Page 8 of 10
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."
9. Further, as the parties have arrived at a compromise, so there would be no chance of conviction in near future in case trial is held and concluded.
10. In view of the above, this petition stands allowed.
11. Consequently, FIR No.104/2012 registered with Police Station Miran Sahib, Jammu u/s 452/323/341/34 RPC and 4/25 Arms Act and all the proceedings initiated against the accused persons, are quashed. Criminal CRMC No.505/2018 Page 9 of 10 Challans pending before the Courts below in FIR No.104/2012, are also quashed in view of compromise arrived at between the parties.
12. Copy of this order be sent to Court below for compliance.
(Sanjay Kumar Gupta) Judge Jammu 17.12.2018 Narinder CRMC No.505/2018 Page 10 of 10