Himachal Pradesh High Court
Sunil Puri @ Saurav Khatri & Others vs State Of H.P. & Others on 17 March, 2023
Author: Virender Singh
Bench: Virender Singh
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MMO No. 101 of 2023
Decided on 17.3.2023
Sunil Puri @ Saurav Khatri & others ...Petitioners
.
Versus
State of H.P. & others ...Respondents
Coarm
Hon'ble Mr. Justice Virender Singh, Judge
1
Whether approved for reporting?
For the petitioners:
For the respondents:
r to Mr. Dheeraj K. Vashishta, Advocate.
Mr. J.S. Guleria, Ms. Priyanka
Chauhan, Mr. Sumit Sharma and Mr.
Rohit Sharma, Deputy Advocate
Generals, for respondent No. 1.
Mr. M.S. Safee and Mr. Pranav
Kaushal, Advocates, for respondents
No. 2 and 3.
________________________________________________________________________
Virender Singh, Judge (Oral)
Petitioners have filed the present petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the 'Cr.P.C.') for quashing of FIR No.311 of 2021, dated 23.8.2021, registered under Sections 147, 148, 149, 323, 324 and 506 of the Indian Penal Code (hereinafter referred to as the 'IPC') and Sections 255459 of Arms Act, at Police Station Una, Sadar Una, as well as resultant proceedings pending in the Court of ::: Downloaded on - 18/03/2023 20:32:48 :::CIS 2 learned Judicial Magistrate, 1st Class, Court No. III, Una, District Una, H.P., (hereinafter referred to as "the trial Court").
2. As per the factual position, as asserted in the petition, .
the aforesaid FIR has been registered on the statement of respondent No. 2 Divesh Thakur. After completion of the investigation, the police filed the Challan, against the petitioners, which is stated to be pending before the trial Court.
3. It is the further case of the petitioners that during the pendency of the trial before the trial Court, they have compromised the matter as they want to live peacefully with a view to maintain cordial relations with each other.
4. The terms and conditions of the compromise have been reduced into writing, which has been annexed with the petition, as Annexure P3. The petitioners have stated that the said compromise has been effected between the parties without any pressure, undue influence and coercion.
5. On the basis of above facts, a prayer has been made to accept the petition and to quash the FIR in question as well as the proceedings resultant thereto, which are stated to be pending before the trial Court.
6. On notice, respondents put in appearance.
Respondents No. 2 and 3 have not opted to contest the petition, ::: Downloaded on - 18/03/2023 20:32:48 :::CIS 3 whereas respondent No. 1 has filed reply, in which the factual position has not been disputed. However, the criminal history of petitioners No. 1, 2, 4 and 8 has been mentioned, which is .
reproduced as under:
"Petitioner No. 1 i.e. Sunil Puri @ Saurav:
i) Case FIR No. 317/16, dated 31.10.2016 U/S 323, 341, 34 IPC PS Una.
ii) Case FIR No. 161/19 dated 10.05.2019 U/S 323, 325, 341, 147, 149, 506 IPC PS Una.
Iii) Case FIR No. 367/19 dated 19.10.2019 U/S 13A367 Gambling Act PS Una. On 14.6.2021, the learned ACJM, Una has punished the petitioner with the fine of Rs. 500/
iv) Case FIR No. 58/20 dated 30.1.2020 U/S 13A367 Gambling Act, PS Una.
v) Case FIR No. 91/20 dated 18.2.2020, U/S13A367 Gambling Act, PS Una.
vi) Case FIR No. 317/20 dated 23.8.2020, U/S 13A367 Gambling Act, PS Una.
Vii) Case FIR No. 133/21 dated 25.4.2021, U/S 423, 341, 506, 509, 356, 34 IPC PS Una.
Viii) Case FIR No. 262/22 dated 9.8.2022, U/S 323, 341, 34 IPC PS Una.
Petitioner No. 2 i.e. Shitanshu Soni;
i) Case FIR No. 317/16 dated 31.10.2016 US 323, 341, 34 IPC PS Una.
ii) Case FIR No. 127/19, dated 20.8.2019, U/S 307, 148, 149 IPC, PS Nangal;
iii) Case FIR No. 161/19 dated 10.5.2019, U/S 323, 325, 341, 147, 149, 506 IPC PS Una.
iv) Case FIR No. 400/19 dated 14.11.2019, U/S 452, 323, 506, 34 IPC PS Una.
v) Case FIR No. 67/20 dated 5.2.2020, U/S 206185 ND & PS Act ::: Downloaded on - 18/03/2023 20:32:48 :::CIS 4 PS Una Petitioner No. 4 i.e. Abhishek @ Abhi:
i) Case FIR No. 161/19 dated 10.5.2019 U/S 323, 325, 341, 148, 149 IPC, PS Una.
.
ii) Case FIR No. 400/19 dated 14.11.2019 U/S 452, 323, 506, 34 IPC PS Una.
Petitioner No. 8 i.e. Rajan @ Raju
i) Case FIR No. 401/20 dated 21.10.2020 U/S 13A367 of Gambling Act PS Una.
ii) Case FIR No. 133/21 dated 16.4.2021 U/S 323, 341, 506, 509, 356 IPC PS Una
iii) Case FIR No. 317/16 dated 31.10.2016, U/S 341, 323, 34 IPC PS Haroli."
7. On the basis of aforesaid facts, it has been argued by learned Deputy Advocate General, appearing for respondent No. 1 State that the petition may kindly be dismissed.
8. Today, respondent No. 2Complainant Divesh Thakur has appeared in person and made a statement on oath disclosing therein that the compromise has been effected between the parties, who, admittedly, are residing in the same district, and in order to maintain good and cordial relations with each other, a prayer has been made to allow the petition by quashing FIR No. 311 of 2021 as well as the resultant proceedings thereto.
9. A similar statement has been made by injured, respondent No. 3, Ravi Thakur, who is also present in person, to the same effect.
::: Downloaded on - 18/03/2023 20:32:48 :::CIS 510. Although, the Police has initially registered the case under Section 307 of IPC alongwith other provisions of the IPC, however, the report under Section 173(2) of the Cr. P.C., a copy of .
which has been annexed with the application, shows that the final report against Shitanshu Soni, Ashish Gautam, Sunny Jagota, Abhishek @ Abhi, Rajan @ Raju, Rajit and Ramandeep Singh @ Titu has been filed for the commission of offence punishable under Sections 147, 148, 149, 323, 324, 325 IPC, whereas chargesheet for the commission of offence punishable under Sections 147, 148, 149, 323, 324 and 325 IPC read with Section 255459 of Arms Act have been filed, against petitioner Sunil Kumar @ Saurav. It has been mentioned in the report under Section 173 (2) Cr. P.C. that the sword was not used but has only been hurled.
11. In the reply filed by respondent No. 1, criminal history of petitioners No. 1, 2, 4 and 8 has been mentioned. Petitioner No. 1 is stated to have been convicted for the offence, punishable under Section 13A367 of the Gambling Act, with a fine of Rs.
500/, whereas, petitioners No. 2, 4 and 8 have admittedly not been convicted for any of the offences, the details of which have been given in the reply. The relief sought in the petition can not be denied to petitioner No. 1 merely on the ground of his conviction in one case.
::: Downloaded on - 18/03/2023 20:32:48 :::CIS 610. The power of this Court under Section 482 of Cr. P.C. has been discussed by Hon'ble Supreme Court in Narinder Singh and others versus State of Punjab and another, (2014) .
6 Supreme Court Cases 466, by formulating the guidelines for accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings.
11. Perusal of judgment, referred to above, clearly depicts that in para 29.1, Hon'ble Apex Court has returned the findings that power conferred under Section 482 of the Cr.P.C., is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Cr.P.C.
12. No doubt, under Section 482 of the Cr.P.C., 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 to be exercised, in view of the guiding principles as decided by Hon'ble Apex Court in Narinder Singh's case supra. The relevant para 29 of the judgment is reproduced as under:
29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the ::: Downloaded on - 18/03/2023 20:32:48 :::CIS 7 proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:
29.1Power 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 to be exercised sparingly and with caution.
29.2. 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 under Section 482 Cr.P.C the High Court is to form an opinion on either of the aforesaid two objectives.
29.3. 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 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.
29.4. On the other, those criminal cases having overwhelmingly and predominantly 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.
29.5. 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.
29.6. 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 ::: Downloaded on - 18/03/2023 20:32:48 :::CIS 8 in the FIR or the charge is framed under this provision. It would be open to the High Court to 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.
29.7. 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".
13. This Court is also of the view that the present case ::: Downloaded on - 18/03/2023 20:32:48 :::CIS 9 does not fall in any of the exception, which has been carved out by Hon'ble Apex Court in Narinder Singh's case supra, in para 29.3 of the judgment.
.
14. Considering the age of the petitioners as well as respondents No. 2 and 3, this Court is of the view that allowing the prayer, as made in the applicati3on, would certainly give an occasion to the petitioners to desist from the criminal activities, as it is the solemn duty of the society to protect the offenders like petitioners from becoming the habitual offenders.
15. The acceptance of this petition would also save the precious judicial time, which could be devoted by the learned trial Court, for the decision of some other serious matters.
16. Considering all these facts, this Court is of the view that the objections, so raised by respondent No. 1State, are devoid of merit.
17. Taking into consideration the compromise entered into between the petitioners and respondents No. 2 and 3, statements to this effect, made by the parties to the compromise, in this Court, the present petition is allowed and FIR No. 311 of 2021, dated 23.8.2021, registered under Sections 147, 148, 149, 323, 324 and 506 of Indian Penal Code and 255459 of Arms Act, at Police Station Una Sadar, District Una, as well as resultant proceedings ::: Downloaded on - 18/03/2023 20:32:48 :::CIS 10 thereto, pending before the trial Court are quashed.
18. The affidavits of the complainant Divesh Thakur and Ravi Thakur, compromise deed, Ext. P3, statements of the parties .
to the compromise, made today in the Court, shall form part of the judgment. Miscellaneous applications, if any, also stand disposed of.
(Virender Singh) Judge March 17, 2023 (Kalpana) ::: Downloaded on - 18/03/2023 20:32:48 :::CIS