Himachal Pradesh High Court
Tarun Chugh vs State Of H.P. And Another on 5 March, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 57 of 2020 Reserved on : February 17, 2020 .
Date of Decision: March 5 , 2020.
Tarun Chugh ...Petitioner
Versus
State of H.P. and another ...Respondents.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge. Whether approved for reporting?1 No. For the petitioner:
r Mr. Bhim Raj Sharma, Advocate, vice Mr.
Naresh Verma, Advocate, for the petitioner.
For the respondent: Ms. Rita Goswamai and Mr. Nand Lal Thakur,
Additional Advocates General and Mr. Yudhvir Thakur Deputy Advocate General, for respondent No. 1/State.
Mr. Arun Sehgal, Advocate, for respondent No. 2/complainant.
Anoop Chitkara, Judge.
The accused (petitioner herein), after compromising the entire matter with the complainant (respondent No. 2, herein), has come up before this Court under Section 482 CrPC, by invoking inherent powers of this Court, seeking quashing of FIR No. 0239 of 2019, dated Dec 18, 2019, under Sections 354-D, 506 and 509 of the Indian Penal Code, in the file of Police Station Dhalli, Distt. Shimla, Himachal Pradesh, and all subsequent proceedings, given the compromise arrived at between them.
2. The present F.I.R. stands registered based on the information given by the complainant, Vishala Verma, who stands arraigned as respondent No. 2, and Mr. Arun Sehgal, Advocate, duly represents her.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 05/03/2020 20:27:15 :::HCHP 2FACTS:
3. The gist of the facts apposite to decide the present petition is as follows:
(a) The present FIR (Annexure P-2) was registered based on the .
information given by complainant Vishala Verma. In her complaint the complainant, who was working as Assistant Trainer, stated that the petitioner, who was her student, clicked her photographs and despite blocking his mobile number so that he could not contact her, he posted the photographs on Instagram. Allegedly the petitioner also levelled allegations against her of being fraud and abused her verbally. On such information the police registered the aforesaid FIR.
(b) Now the complainant has entered into an out of Court compromise with the accused. A copy of the said compromise has been placed on the record as Annexure P-1.
(c) The complainant Vishala Verma, had put in appearance in Court and made statement on oath that she has compromised the entire matter. The statement has been placed on record.
ANALYSIS AND REASONING:
4. The following aspects would be relevant to conclude this petition: -
a) The complainant, who is respondent No. 2, stated that after the registration of FIR, the parties, want to keep good relations. The complainant has resolved all the disputes with the accused.
b) The complainant and the accused have amicably settled the matter between them in terms of the compromise deed (Annexure P/1).
c) The parties do not dispute the compromise deed (Annexure P-1), attached to this petition.
d) On this, the complainant and the accused had appeared before this Court, and the statement of the complainant to such effect on oath was recorded on Feb 17, 2020, which forms part of the record.
e) It was the first offence of all the accused, who does not have any criminal history.
f) In the given facts, the occurrence was limited and does not affect public peace or tranquility.::: Downloaded on - 05/03/2020 20:27:15 :::HCHP 3
g) It has come in the compromise deed (Annexure P-1) that the petitioner has deleted all fake material posted against the complainant from the Instagram/facebook and assured her not to repeat the same in .
future and also apologized for his deed.
h) If this Court shirks in exercising its inherent jurisdiction under section 482 CrPC, then it might lead to bitterness in relations. Every time the accused will be summoned in the Court, he may blame the complainant for the FIR, and the financial and other expenditure incurred, and not getting jobs, due to this case.
i) The rejection of compromise may also lead to ill will, and the purpose of criminal jurisprudence is reformatory in nature and to work for bringing peace and happiness in society.
j) The pendency of trial is not only affecting the career, but after the settlement of all disputes with the complainant, the prosecution is most likely to end in acquittal.
k) 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 expected to result in the acquittal of the accused.
l) The present case stands on many different footings than other similarly situated compromises.
m) Given the cumulative effect of all the factors mentioned above, it is one of the exceptional cases, where this Court should exercise its inherent jurisdiction under Section 482 of the Code of Criminal Procedure and intervene, given the age of the accused, and the fact that the trial is affecting the entire career of the accused.
NON-COMPOUNDABLE OFFENCES CAN BE QUASHED:
5. In Ram Prasad v. State of Uttar Pradesh, (1982) 2 SCC 149, Supreme Court holds, "The appellants, who are the accused and the complainant, Shri Ram, who was the person injured as a result of firing, have appeared before us and stated that they wish to compound the ::: Downloaded on - 05/03/2020 20:27:15 :::HCHP 4 offence. The offence for which both the appellants have been convicted is one under Section 307 read with Section 34 of the Indian Penal Code, but having regard to the nature of the injury sustained by Shri Ram, we think that the proper offence for which the appellants should have been convicted was under
.
Section 324 read with Section 34. Shri Ram received only one injury on the shoulder and that was also in the nature of simple hurt. We would, therefore, convert the conviction of the appellants to one under Section 324 read with Section 34. Since the parties belong to the same village and desire to compound the offence, we think, in the larger interest of peace and harmony between the parties and having regard to the nature of the injury, that it would be proper to allow the parties to compound the offence."
JUDICIAL PRECEDENTS ON JURISPRUDENCE OF QUASHING:
6. The law is almost settled by a larger benches judgments of Supreme Court that the offences, those are not listed as compoundable, under Section 320 CrPC, can also be compounded, and the procedure to follow would be by quashing the FIR, and consequent proceedings.
a) In R.P. Kapur v. State of Punjab, AIR 1960 SC 866, a three-member Bench of Hon'ble Supreme Court holds,
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 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 ::: Downloaded on - 05/03/2020 20:27:15 :::HCHP 5 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 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), NripendraBhusan Roy v. GobinaBandhu Majumdar, AIR 1924 Cal 1018 and Ramanathan Chettiyar v. SivaramaSubramania, ILR 47 Mad 722 : (AIR 1925 Mad 39).
b) In MadhavraoJiwaji 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 ::: Downloaded on - 05/03/2020 20:27:15 :::HCHP 6 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.
c) 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 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 ::: Downloaded on - 05/03/2020 20:27:15 :::HCHP 7 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 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."::: Downloaded on - 05/03/2020 20:27:15 :::HCHP 8
d) In ParbatbhaiAahir @ ParbatbhaiBhimsinhbhaiKarmur and Ors. vs. State of Gujarat &anr.,(2017) 9 SCC 641, a Three Judges Bench 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 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 ::: Downloaded on - 05/03/2020 20:27:15 :::HCHP 9 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;
.
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 the act complained of upon the financial or economic system will weigh in the balance."
7. In the present case, the offences are not compoundable under section 320 CrPC. Be that as it may, in the peculiar facts and circumstances, this Court is inclined to invoke the inherent jurisdiction under section 482 CrPC to quash the FIR and all subsequent proceedings.
8. 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 ::: Downloaded on - 05/03/2020 20:27:15 :::HCHP 10 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:
9. In Shakuntala Sawhney v. Kaushalya Sawhney, (1979) 3 SCR 639, Hon'ble Supreme Court observed, The finest hour of Justice arise propitiously when parties, despite falling apart, bury the hatchet and weave a sense of fellowship or reunion.
10. The accused/Petitioner and the complainant/respondent No. 2 are known to each other. The investigation is complete. The accused has learnt a lesson for life, by facing the consequences of FIR and criminal trial.
11. Given 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 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 FIR mentioned above and all consequent proceedings.
12. Furthermore, this compromise is subject to accused paying compensation of Rs. 10,000/- (rupees ten thousand) to the Office of the Learned Advocate General, State of Himachal Pradesh and a sum of Rs 10,000/- (rupees ten thousand) shall be paid as compensation to the concerned Police Station, on or before Mar 31, 2020, failing which, this petition shall be deemed to have been dismissed, without any further orders from this Court. It shall be open for the Office of the Ld. Advocate General and the concerned Police Station to utilize this money as per their own wisdom. The reasons for burdening the accused with ::: Downloaded on - 05/03/2020 20:27:15 :::HCHP 11 compensation is that due to his illegal acts, the Police machinery, Office of Ld. Advocate General, as well as the Courts spent their valuable time, and instead of taking the trial to its logical end, where the accused was liable to pay .
compensation under Section 357 CrPC, apart from fine, accused would be saving all that amount. The accused to file the receipt of the deposit in the Registry of this Court on or before Apr 10, 2020.
13. It is also made clear that in case any of the accused gets involved in any offence where the sentence prescribed is more than seven years, then he shall not be entitled to get the said matter compromised, subject to exception of cases mentioned in the first part of Section 320 CrPC.
14. Consequently, this petition is allowed, and the FIR No. 0239 of 2019, dated Dec 18, 2019, under Sections 354-D, 506 and 509 of the Indian Penal Code, in the file of Police Station Dhalli, Distt. Shimla, Himachal Pradesh, and all subsequent proceedings, is quashed. Since FIR has been quashed, all the consequential proceedings, are also quashed and set aside. Petition is allowed. All pending application(s), if any, stand closed.
(Anoop Chitkara), Judge.
March 5 , 2020 (PK) ::: Downloaded on - 05/03/2020 20:27:15 :::HCHP