Uttarakhand High Court
Applicants vs State Of Uttarakhand & Others on 4 October, 2018
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (Criminal) No. 1840 of 2018
(under Article 226 of Constitution of India)
With
Compounding application No. 15293 of 2018
Veer Singh and Others
...Applicants
Vs.
State of Uttarakhand & Others
...Respondents
Mr. Pankaj Sharma, Advocate for the applicants.
Mrs. Manisha Bhandari, A.G.A. for the State/respondent nos. 1 & 2.
Mr. Amit Kapri, Advocate for respondent no. 3.
Dated: 04th October, 2018
Sharad Kumar Sharma, J. (Oral)
The petitioner nos. 3 & 4 are minors and they are represented by petitioner no. 1, who is their father and natural guardian. Petitioners are present in person and they have been duly identified by their counsel Mr. Pankaj Sharma. Respondent no. 3, who is present in person, is also identified by her counsel Mr. Amit Kapri.
2. The petitioners have filed the Writ Petition for quashing the FIR No. 142 of 2018 dated 05.08.2018 under Section 323, 325, 452 of IPC registered at P.S. Kunda, District Udham Singh Nagar. Out of the offences as leveled in the FIR, one of the offence under Section 452 is not compoundable under Section 320 of Cr.P.C. However, the parties have appeared in person and they have made a categoric statement that apart from the fact that they are residents of the same village, they are distantly related to one another, and lateron after the commission of offences, they realized their folly and have entered into the compromise on 22.09.2018 in writing. The compounding application has been filed along with the present Writ Petition praying for the composition of the aforesaid offences, as the respondent no. 3/ the complainant has expressed her desire not to further prosecute with the case as registered 2 by her against the petitioners. In the Compounding Application it is stated as follows:
"2. That during the pendency of the investigation, the parties have amicably settled their dispute outside the court and entered into a compromise, now the respondent no. 3 do not want to prosecute the petitioners in the present case. A copy of the compromise is filed as Annexure No. 3 to the writ petition.
3. That, since the parties have already settled their dispute, hence, no fruitful purpose is solved if the petitioners are sent behind the bar, hence in the interest of justice the offences punishable U/s 323, 325, 452 of I.P.C. are needs to be compounded and the proceedings are liable to be quashed.
5. That in view of the compromise the respondent no. 3 does not want to prosecute the petitioners and now at this stage the present criminal proceedings is nothing but a futile exercise.
6. That now the parties have maintained good relations amongst them and the respondent no. 3 has now remained no grievance against the petitioners."
3. Hence, the prayer has been made that the offences as narrated therein may be compounded. The Government Advocate has opposed the prayer on the ground that some of the offences, which are leveled against the petitioners in the FIR, are not compoundable under Section 320 of Cr.P.C. and, hence, compounding application may not be considered by this Court. However, considering the fact that the parties have settled their disputes in terms of the affidavit filed by them, as well as, considering the averments made therein that the parties are residents of the same village and are distantly related to one another, as well the nature of dispute it takes the shape of private dispute amongst themselves, which has been sought to be resolved by way of present Compounding Application. Also, considering the fact that the proceedings with the Criminal Case inter se amongst the parties and making them to face the criminal trial would be nothing but the futile exercise to force the litigants to face the Trial and for no fruitful purpose, more particularly, when they have resolved their dispute. It 3 would result into bringing peace and tranquility between the two rival factions, thereby increasing harmony amongst themselves.
4. Considering the merit of the judgments rendered by the Hon'ble Apex Court in a catena of cases, which are quoted hereinbelow, this Court is of the view that the offences as narrated therein deserves to be compounded. Accordingly, the present Compounding Application deserves to be allowed.
5. The ratio governing compounding of offences has been laid in the following cases. The Hon'ble Apex Court in the case of Gian Singh Vs. State of Punjab and another reported in (2012) 10 SCC 303 has held as follows:
"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 4 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.
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 favour stand on different footing for the 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, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the 5 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."
6. The Hon'ble Apex Court in the aforesaid case of Gian Singh (Supra) has also dealt with the judgment in the cases of B.S. Joshi and others Vs. State of Haryana and another reported in (2003) 4 SCC 675 and Nikhil Merchant Vs. Central Bureau of Investigation and another reported in (2008) 9 SCC 677.
7. The Hon'ble Apex Court in the case of B.S. Joshi and others Vs. State of Haryana reported in (2003) 4 SCC 675, has held as follows:
"6. In Pepsi Food Ltd. & Anr. v. Special Judicial Magistrate & Ors. [(1998) 5 SCC 749], this Court with reference to Bhajan Lal's case observed that the guidelines laid therein as to where the court will exercise jurisdiction under Section 482 of the Code could not be inflexible or laying rigid formulae to be followed by the courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. It is well settled that these powers have no limits. Of course, where there is more power, it becomes necessary to exercise utmost care and caution while invoking such powers.
8. It is, thus, clear that Madhu Limaye's case does not lay down any general proposition limiting power of quashing the criminal proceedings or FIR or complaint as vested in Section 482 of the Code or extra ordinary power under Article 226 of the Constitution of India. We are, therefore, of the view that if for the purpose of securing the ends of justice, quashing of FIR becomes 6 necessary, Section 320 would not be a bar to the exercise of power of quashing. It is, however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power.
10. In State of Karnataka v. L. Muniswamy & Ors. [(1977) 2 SCC 699], considering the scope of inherent power of quashing under Section 482, this Court held that in the exercise of this wholesome power, the High Court is entitled to quash proceedings if it comes to the conclusion that ends of justice so require. It was observed that in a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice and that the ends of justice are higher than the ends of mere law though justice had got to be administered according to laws made by the legislature. This Court said that the compelling necessity for making these observations is that without a proper realization of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction. On facts, it was also noticed that there was no reasonable likelihood of the accused being convicted of the offence. What would happen to the trial of the case where the wife does not support the imputations made in the FIR of the type in question. As earlier noticed, now she has filed an affidavit that the FIR was registered at her instance due to temperamental differences and implied imputations. There may be many reasons for not supporting the imputations. It may be either for the reason that she has resolved disputes with her husband and his other family members and as a result thereof she has again started living with her husband with whom she earlier had differences or she has willingly parted company and is living happily on her own or has married someone else on earlier marriage having been dissolved by divorce on consent of parties or fails to support the prosecution on some other similar grounds. In such eventuality, there would almost be no chance of conviction. Would it then be proper to decline to exercise power of quashing on the ground that it would be permitting the parties to compound non-compoundable offences. Answer clearly has to be in 'negative'. It would, however, be a different matter if the High Court on facts declines the prayer for quashing for any valid reasons including lack of bona fides.
11. In Madhavrao Jiwajirao Scindia & Ors. v. Sambhajirao Chandrojirao Angre & Ors. [(1988) 1 SCC 692], it was held that while exercising inherent power of quashing under Section 482, it is for the High Court to take into consideration any special 7 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. 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 proceedings.
15. In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code."
8. The Hon'ble Apex Court in the case of Nikhil Merchant (supra) has held as follows:-
"7. In support of the aforesaid contentions made on behalf of the appellant before the High Court, reference was made to the decision of this Court in the case of Central Bureau of Investigation v. Duncans Agro Industries Ltd. (1996) 5 SCC 591 wherein on the basis of facts similar to the facts of this case, this Court had held that even if an offence of cheating is prima facie made out, such offence is a compoundable offence and compromise decrees passed in the suits instituted by the Bank, for all intents and purposes, amount to compounding of the offence of cheating. This Court accordingly, upheld the order of the High Court quashing the criminal complaint after the civil action had been compromised between the parties.
8. Apart from the said decision, reliance was also placed on another decision of this Court in the case of B.S. Joshi and Ors. v. State of Haryana and Anr (2003) 4 SCC 675 wherein while dealing with the proceedings under Sections 498A and 406 Indian Penal Code involving matrimonial disputes and offences, this Court held that even though the provisions of Section 320 of the Code of Criminal Procedure would not apply to such offences, which are not compoundable it did not limit or affect the powers under Section 482 and the powers conferred on the High Courts and the Supreme Court under Articles 226 and 136 of the Constitution of India. Referring to the decision of this Court in State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 this Court observed that the categories indicated in the said case which warranted exercise of power under Section 482 CrPC were only illustrative and not exhaustive. This Court ultimately held that the High Court in exercise of its inherent powers can quash criminal proceedings or a FIR or complaint and Section 320 CrPC does not 8 limit or affect the power of the High Court under Section 482 of the Code.
9. After considering the said decision in the light of the submissions made on behalf of the respective parties, the High Court took the view that in the Duncans Agro case (supra) this Court was considering the situation involving Section 420 IPC which was compoundable under Section 320(2) CrPC, while in the instant case, the charge sheet was also under Sections 467, 468, 471-A IPC along with the provisions of the Prevention of Corruption Act, which were non- compoundable. The High Court, therefore, held that neither of the said two cases would have application to the facts of this case and rejected the appellant's prayer for discharge from the criminal cases."
9. In view of ratio laid down by the Hon'ble Apex Court by the aforeasaid judgments cited hereinabove, this Compounding Application filed by the parties will stand allowed and the FIR No. 142/2018 under Sections 323, 325 & 452 of I.P.C. at Police Station Kunda, District Udham Singh Nagar, would stand quashed.
10. Consequently, Writ Petition would stand allowed. There would be no order as to cost.
(Sharad Kumar Sharma, J.) 04.10.2018 Pooja