Jammu & Kashmir High Court
Atul Chibber vs State And Ors. on 11 August, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
561-A No.452/2017
MP Nos.1/2017
Date of order:-11.08.2017
Atul Chibber V. State of J&K& ors
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing Counsel:
For the petitioner(s): Mr. K.M.Bhatti, Advocate
For the respondent(s) Mr. S.S.Nanda, Sr. AAG for R-1 to 3
Mr. Sunil Khajuria, Advocate for R-4 i. Whether approved for reporting in Press/Media : Yes/No/Optional ii. Whether to be reported in Digest/Journal : Yes/No
1. Through the medium of instant petition, petitioner invokes inherent jurisdiction of this Court under section 561-A Cr.P.C. for quashment of FIR No.69/2016 dated 06.10.2016 registered in Police Station, Crime Branch, Jammu under Sections 420, 406, 465, 466, 467,468, 506 RPC.
2. In the petition, it is stated that the petitioner and respondent No.4 were business partners and have started the business in the name of M/s Orbit Products at Phase-II IGC Samba for manufacturing of white disinfectants toilet soap, naphthalene balls and other material. The terms of partnership were reduced into writing and the partnership deed was registered in the Court of Sub-Registrar, Samba on 01.07.2013. It is further stated that the petitioner and respondent No.4 jointly purchased a plot of one kanal at IGC Phase-II Samba from one P.C.Gupta vide Agreement to sell dated 05.08.2013. They had some misunderstanding during the transactions and as such the petitioner was being harassed by SHO Police Station Channi Himmat by conducting raids at his residence and also sent police to harass the petitioner, thereafter 561-A No. 452/2017 Page 1 of 8 filed a bail application on 19.07.2014 in the Court of learned Sessions Judge, Jammu and obtained anticipatory bail. Respondent No.4 stopped the harassment and again started interfering into the business and residential property of the petitioner as such he was constrained to file another bail application on 15.10.2014 wherein the interim bail was granted and SHO Police Station Channi Himmat was directed to file the detailed report. On 17.10.2014 a report was submitted by the SHO Police Station Channi Himmat wherein it was stated that there is no case registered against the petitioner and on this report the learned 2nd Additional Sessions Judge, Jammu dismissed the bail application having been rendered infructuous. Thereafter petitioner filed a Civil Suit in which the Court of learned 2nd Addl. Munsiff issued notice to respondents. However, respondent No.4/defendant did not choose to appear in the Court but stopped harassing the petitioner. The petitioner had a business transaction with respondent No.4 and some payments were made to her through the Bank accounts, cheques and in cash. It is further contended that the petitioner was put to such harassment by the police as well as private goons that he has to leave the State due to threat to his life and petitioner could not settle at Jammu so as to reconcile the account with respondent No.4. In the meanwhile, respondent No.4 approached Crime Branch to get the case registered and the Crime Branch Jammu never called or associated the petitioner with the preliminary inquiry, however, petitioner came to know regarding the pendency of the case in Crime Branch when a news item appeared in all the news papers regarding registration of FIR No.69/2016 in Police Station, Crime Branch Jammu under Sections 420, 406, 465, 466, 467,468, 506 RPC.
3. It is also contended that respondent No.4 and the petitioner have reconciled their accounts and the petitioner has paid an amount of Rs.6.00 lacs to respondent No.4 in full and final settlement of her claims against the petitioner and the compromise deed has been executed between the petitioner and the respondent No.4 in presence of counsels of both the parties and respondent No.4 has 561-A No. 452/2017 Page 2 of 8 also withdrawn the two cases filed by her in the Court learned Additional District Judge and in Munsiff Forest Magistrate, Jammu.
4. Along with main petition, photo-stat copy of Compromise Deed executed between the petitioner and respondent No.4 has also been attached.
5. Respondent No.4/ complainant, who lodged the FIR, has also appeared through his counsel Sh. Sunil Khajuria, Advocate.
6. On 04.08.2017, when the matter was listed before this Court, petitioner as well as respondent No.4 appeared in person and have also produced original Compromise Deed executed before Notary at Jammu. They have also admitted the contents of the compromise deed. Registrar Judicial was directed to record the statements of complainant as well as petitioner with regard to Compromise Deed. Accordingly, Registrar Judicial has recorded the statements of complainant, petitioner and their Advocates. They have admitted the contents of compromise deed and have been identified by their Advocates. Complainant and the petitioner have stated that they have settled the dispute amicably between parties and they do not want to pursue the FIR No.69/2016 dated 06.10.2016 registered in Police Station, Crime Branch, Jammu under Sections 420, 406, 465, 466, 467,468, 506 RPC and submit that they have no objection, if the above said FIR is quashed.
7. Learned counsel for the petitioner submits that 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.561-A No. 452/2017 Page 3 of 8
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 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."
8. Learned counsel for the petitioner has relied upon the judgment of Hon'ble the Supreme Court in case titled "Jagdish Chanana & ors. vs State of Haryana & anr." reported in 2008 AIR (SC) 1968. It is apt to reproduce paragraph 2 of the aforesaid judgment as under:
2. This appeal is directed against the order dated 24th July, 2006 rejecting the prayer for quashing of FIR No.83 dated 12 th March 2005 P.S.City Sonepat registered under Sections 419, 420, 406, 465, 468, 471, 472, 474 read with Section 34 of the IPC. During the pendency of these proceedings in this Court, Crl. Misc. Petition No.42/2008 has been filed putting on record a compromise deed dated 30 th April, 2007. The fact that a compromise has indeed been recorded is admitted by all sides and in terms of the compromise the disputes which are purely personal in nature and arise out of commercial transactions, have been settled in terms of the compromise with one of the terms of the compromise being that proceedings pending in Court may be withdrawn or compromised or quashed, as the case may be. In the light of the compromise, it is unlikely that the prosecution will succeed in the matter. We also see that the dispute is a purely personal one and no public policy is involved in the transactions that had been entered into between the parties. To continue with the proceedings, therefore, would be a futile exercise. We accordingly allow the appeal and quash FIR No.83 dated 12 th March 2005 P.S.City Sonepat and all consequent proceedings.561-A No. 452/2017 Page 4 of 8
9. Whereas learned counsel for State has stated that under law non-
compoundable offences cannot be compounded under inherent power of High Court.
10. But I find no force in this argument. Hon'ble Apex court in 2014 (2) CRIMES SC-1 in case titled CBI ACB Mumbai vs Narendra Lal Jain & Ors has held as under:-
"6. We have heard Mr. P.P. Malhotra, learned Additional Solicitor General appearing on behalf of the appellant and Mr. Sushil Karanjkar, learned counsel appearing on behalf of Respondent Nos. 1 and 4.
7. Shri Malhotra, learned Additional Solicitor General, has taken us through the order passed by the High Court. He has submitted that the High Court had quashed the criminal proceeding registered against the accused- respondents only on the ground that the civil liability of the respondents had been settled by the consent terms recorded in the decree passed in the suits. Shri Malhotra has submitted that when a criminal offence is plainly disclosed, settlement of the civil liability, though arising from the same facts, cannot be a sufficient justification for the premature termination of the criminal case. Shri Malhotra has also submitted that the offence under Section 120-B alleged against the accused-respondents is not compoundable under Section 320 Cr.P.C.; so also the offences under the PC Act. Relying on the decision of a three Judges Bench of this Court in Gian Singh vs. State of Punjab and Another[1], Shri Malhotra has submitted that though it has been held that the power of the High Court under Section 482 Cr.P.C. is distinct and different from the power vested in a criminal Court for compounding of offence under Section 320 of the Cr.P.C., it was made clear that the High Court must have due regard to the nature and gravity of the offences alleged before proceeding to exercise the power under Section 482 Cr.P.C. Specifically drawing the attention of the Court to para 61 of the report in Gian Singh (supra) Shri Malhotra has submitted that "any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act .... cannot provide for any basis for quashing criminal proceeding involving such offences". Shri Malhotra had contended that having regard to the gravity of the offences alleged, which offences are prima facie made out, in as much as 561-A No. 452/2017 Page 5 of 8 charges have been framed for the trial of the accused- respondents, the High Court was not justified in quashing the criminal proceedings against the accused- respondents.
8. Per contra, the learned counsel for the respondents (accused) have submitted that the High Court, while quashing the criminal proceedings against the respondents (accused), had correctly relied on the judgments of this Court in Central Bureau of Investigation, SPE, SIU(X), New Delhi vs. Duncans Agro Industries Ltd., Calcutta[2] and B.S.Joshi and Others vs. State of Haryana and Another[3]. Learned counsel has submitted that though simultaneous criminal and civil action on same set of facts would be maintainable, in Duncans Agro Industries Ltd. (supra) it has been held that the disposal of the civil suit for recovery, on compromise upon receipt of payments by the claimants, would amount to compounding of offence of cheating. No error is, therefore, disclosed in the order of the High Court insofar as the offence under Section 420 IPC is concerned. As for the offence under Section 120-B it is submitted that this Court in B.S. Joshi (supra) has held that the power under Section 482 Cr.P.C. to quash a criminal proceeding is not limited by the provisions of Section 320 Cr.P.C. and even if an offence is not compoundable under Section 320 Cr.P.C., the same would not act as a bar for the exercise of power under Section 482 Cr.P.C. As the dispute between the parties have been settled on the terms of the compromise decrees, it is submitted that the High Court had correctly applied the principles laid down in B.S. Joshi (supra) to the facts of the present case.
9. Learned counsel has further pointed out that the charges framed against the accused-respondents are under Section 120-B/420 of the Indian Penal Code and the respondents not being public servants, no substantive offence under the PC Act can be alleged against them. The relevance of the views expressed in para 61 of the judgment of this Court in Gian Singh (supra), noted above, to the present case is seriously disputed by the learned counsel in view of the offences alleged against the respondents. Learned counsel has also submitted that by the very same impugned order of the High Court the criminal proceeding against one Nikhil Merchant was declined to be quashed on the ground that offences under Sections 468 and 471 of the IPC had been alleged against the said accused.
Aggrieved by the order of the High Court the accused had moved this Court under Article 136 of the Constitution. In the decision reported in Nikhil Merchant vs. Central Bureau of Investigation and 561-A No. 452/2017 Page 6 of 8 Another[4] this Court understood the charges/allegations against the aforesaid Nikhil Merchant in the same terms as in the case of the accused-respondents, as already highlighted. Taking into consideration the ratio laid down in B.S. Joshi (supra) and the compromise between the bank and the accused Nikhil Merchant (on the same terms as in the present case) the proceeding against the said accused i.e. Nikhil Merchant was quashed by the Court taking the view that the power and the Section 482 Cr.P.C. and of this Court under Article 142 of the Constitution cannot be circumscribed by the provisions of Section 320 Cr.P.C. It is further submitted by the learned counsel that the correctness of the view in B.S. Joshi (supra) and Nikhil Merchant (supra) were referred to the three Judges Bench in Gian Singh (supra). As already noted, the opinion expressed in Gian Singh (supra) is that the power of the High Court to quash a criminal proceeding under Section 482 Cr.P.C. is distinct and different from the power vested in a criminal court by Section 320 Cr.P.C. to compound an offence. The conclusion in Gian Singh (supra), therefore, was that the decisions rendered in B.S. Joshi (supra) and Nikhil Merchant (supra) are correct.
10. In the present case, as already seen, the offence with which the accused-respondents had been charged are under Section 120-B/420 of the Indian Penal Code. The civil liability of the respondents to pay the amount to the bank has already been settled amicably. The terms of such settlement have been extracted above. No subsisting grievance of the bank in this regard has been brought to the notice of the Court. W hile the offence under Section 420 IPC is compoundable the offence under Section 120- B is not. To the latter offence the ratio laid down in B.S. Joshi (supra) and Nikhil M erchant (supra) would apply if the facts of the given case would so justify. The observation in Gian Singh (supra) (para
61) will not be attracted in the present case in view of the offences alleged i.e. under Sections 420/120B IPC.
11. In the present case, having regard to the fact that the liability to make good the monetary loss suffered by the bank had been mutually settled between the parties and the accused had accepted the liability in this regard, the High Court had thought it fit to invoke its power under Section 482 Cr.P.C. W e do not see how such exercise of power can be faulted or held to be erroneous. Section 482 of the Code inheres in the High Court the power to make such order as may be considered necessary to, inter alia, prevent the abuse of the process of law or to serve the ends of justice. W hile it will be wholly unnecessary to revert or refer to the settled 561-A No. 452/2017 Page 7 of 8 position in law with regard to the contours of the power available under Section 482 Cr.P.C. it must be remembered that continuance of a criminal proceeding which is likely to become oppressive or may partake the character of a lame prosecution would be good ground to invoke the extraordinary power under Section 482 Cr.P.C.
11. In present case dispute is personal between parties and parties have already amicably settled the dispute; challan is yet to produced. There would be no chance of conviction of accused, if challan is produced because parties have compromised. Courts are already burdened with so many cases; trial should not be conducted as a mere formality.
12. The instant case is squarely covered by the said ruling of the Hon'ble Supreme Court. It is also pertinent to note that the offence punishable under Section 420 IPC is compoundable offence, which find place in the list contained under law with permission of court. .The only thing which required consideration is whether the respondent / complainant should be permitted to compound the offences punishable under, 406, 465, 466, 467,468, 506 RPC. In view of above law High Court can permit the same under 56-1-A Cr.P.C.
13. In view of the above law and while exercising the power vested in this court in terms of section 561-A Cr.P.C., this petition is allowed and the proceedings against the petitioner in FIR No.69/2016 dated 06.10.2016 registered in Police Station, Crime Branch, Jammu under Sections 420, 406, 465, 466, 467,468, 506 RPC, are hereby quashed.
14. A copy of this order be sent to Police Station, Crime Branch, Jammu, for compliance.
(Sanjay Kumar Gupta) Judge Jammu 11.08.2017 Vijay 561-A No. 452/2017 Page 8 of 8