Himachal Pradesh High Court
Surinder Kumar & Another vs State Of H.P & Another on 23 May, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr.MMO No.140 of 2017
Date of Decision : 23.05.2017
.
Surinder Kumar & another ....Petitioner.
Versus
State of H.P & another ...Respondent.
Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 Yes.
For the Petitioners : Mr. Anuj Gupta, Advocate.
For the Respondents : Mr. P.M.Negi & M.L.Chauhan, Additional
Advocate Generals.
Sandeep Sharma, Judge (Oral)
By way of instant petition filed under Section 482 of the Code of Criminal Procedure, a prayer has been made on behalf of the petitioners-accused(hereinafter referred to as the accused) for quashing of the FIR No. 308 of 2010, dated 2.12.2010, registered at Police Station Indaura, District Kangra, H.P., and consequent proceedings in Criminal Case No.238 of 2013 under Sections 324, 341, 323, 506 read with Section 34 of the Indian Penal Code pending adjudication before the learned Judicial Magistrate, 1st Class, Indaura, District Kangra, H.P. Whether reporters of the local papers may be allowed to see the judgment ::: Downloaded on - 28/05/2017 00:00:39 :::HCHP ...2...
2. Mr. Anuj Gupta, learned counsel representing the petitioners-accused, while inviting attention of this .
Court to the compromise deed (Annexure P-3 ),contended that both the parties, who are young boys and have bright future ahead, have compromised the matter in the presence of respectable people of the society, their parents and other relatives and as such, they want to live friendly and peacefully in future. Mr. Gupta, further contended that since parties have arrived into an amicable settlement, without there being any pressure or influence on the complainant, the instant matter may be ordered to be compounded.
3. This Court with a view to ascertain the correctness and genuineness of the submissions having been made by the learned counsel for petitioners-accused as well as compromise deed placed on record also recorded statement of complainant Sh. Sohan Lal, who is present in Court. Complainant Sohan Lal stated on oath that he has settled the matter with the petitioners-
accused in the presence of respectable members of the society and now he does not want to pursue his complaint further and he has no objection in case the FIR No.308 of ::: Downloaded on - 28/05/2017 00:00:39 :::HCHP ...3...
2010 as well as consequent proceedings pending adjudication before the learned Judicial Magistrate 1st .
Class, Indaura against the petitioners-accused are quashed and set-aside.
4. Mr. M.L.Chauhan, learned Additional Advocate General, representing the respondent-State, opposed the aforesaid prayer having been made by the learned counsel for the petitioner. Mr. Chauhan, further contended that the petitioners-accused have actively been found involved in the commission of offences punishable under Sections 341, 324, 323, 506 read with Section 34 of the Indian Penal Code in furtherance of their common intention to commit the said offences and caused sharp injuries by means of a weapon of knife on the person of respondent No.2 and as such, it may not be in the interest of justice to compound the present offence.
5. I have heard learned counsel for the parties and have gone through the record.
6. This Court, after having carefully perused the compromise deed, which has been duly effected in the presence of respectable people of the society, their parents and other relatives, sees substantial force in the ::: Downloaded on - 28/05/2017 00:00:39 :::HCHP ...4...
prayer having been made by the learned counsel for the petitioners-accused that offences in the instant case can .
be ordered to be compounded.
7. Since the application has been filed under Section 320 read with section 482 Cr.P.C, this Court deems it fit case to consider the present application in the light of the judgment passed by Hon'ble Apex Court in Narinder Singh and others versus State of Punjab and another (2014)6 Supreme Court Cases 466, whereby Hon'ble rApex Court has formulated guidelines for accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings. Perusal of judgment referred above clearly depicts that in para 29.1, Hon'ble Apex Court has returned the findings that power 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.
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However, this power is to be exercised sparingly and with great caution. Para Nos. 29 to 29.7 of the judgment are .
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 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 r 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 ::: Downloaded on - 28/05/2017 00:00:39 :::HCHP ...6...
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 pre-dominantly 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 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 ::: Downloaded on - 28/05/2017 00:00:39 :::HCHP ...7...
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 ::: Downloaded on - 28/05/2017 00:00:39 :::HCHP ...8...
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".
8. Careful perusal of para 29.3 of the judgment suggest that such a power is not be exercised in the cases 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. Apart from this, offences 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. On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly arising out of commercial transactions or arising out of matrimonial relationship or family disputes may be quashed when the parties have resolved their entire disputes among themselves.
9. The Hon'ble Apex Court in case Gian Singh v.
State of Punjab and anr. (2012) 10 SCC 303 has held that ::: Downloaded on - 28/05/2017 00:00:39 :::HCHP ...9...
power of the High Court in quashing of the criminal proceedings or FIR or complaint in exercise of its inherent .
power is distinct and different from the power of a Criminal Court for compounding offences under Section 320 Cr.PC. Even in the judgment passed in Narinder Singh's case, the Hon'ble Apex Court has held that while exercising inherent power of quashment under Section 482 Cr.PC the Court must have due regard to the nature and gravity of the crime and its social impact and it cautioned the Courts not to exercise the power for quashing proceedings in heinous and serious offences of mental depravity, murder, rape, dacoity etc. However subsequently, the Hon'ble Apex Court in Dimpey Gujral and Ors. vs. Union Territory through Administrator, UT, Chandigarh and Ors. (2013( 11 SCC 497 has also held as under:-
"7. In certain decisions of this Court in view of the settlement arrived at by the parties, this Court quashed the FIRs though some of the offences were non- compoundable. A two Judges' Bench of this court doubted the correctness of those decisions. Learned Judges felt that in those decisions, this court had permitted compounding of non-compoundable offences. The said issue was, therefore, referred to a larger bench.
The larger Bench in Gian Singh v. State of Punjab (2012) 10 SCC 303 considered the relevant provisions of the Code and the judgments of this court and concluded as under: (SCC pp. 342-43, para 61)
61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding ::: Downloaded on - 28/05/2017 00:00:39 :::HCHP ...10...
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 flavour 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 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 ::: Downloaded on - 28/05/2017 00:00:39 :::HCHP ...11...
Court shall be well within its jurisdiction to quash the criminal proceeding." (emphasis supplied)
8. In the light of the above observations of this court in Gian Singh, we feel that this is a case where the .
continuation of criminal proceedings would tantamount to abuse of process of law because the alleged offences are not heinous offences showing extreme depravity nor are they against the society. They are offences of a personal nature and burying them would bring about peace and amity between the two sides. In the circumstances of the case, FIR No. 163 dated 26.10.2006 registered under Section 147, 148, 149, 323, 307, 452 and 506 of the IPC at Police Station Sector 3, Chandigarh and all consequential proceedings arising there from including the final report presented under Section 173 of the Code and charges framed by the trial Court are hereby quashed."
10. Accordingly, in view of the averments contained in the application as well as the submission having been made by the learned counsel for the petitioners that the matter has been compromised, and keeping in mind the well settled proposition of law as well as the compromise being genuine, this Court has no inhibition in accepting the compromise and quashing the FIR as well as proceedings pending in the trial Court.
11. Consequently, in view of the peculiar facts and circumstances of the case, wherein parties have compromised the matter at hand, this Court while exercising power vested in it under Section 482 Cr.P.C., deems it fit to accept the prayer having been made by the learned counsel representing the petitioner.
Accordingly, in view of the discussion made ::: Downloaded on - 28/05/2017 00:00:39 :::HCHP ...12...
hereinabove, the FIR No.308 of 2010, dated 2.12.2010 registered at Police Station Indaura, District Kangra, .
H.P., under Section 341, 323, 324, 506 and 34 of IPC against the petitioners as well as the consequent proceedings in Criminal Case No.238 of 2013 pending adjudication before the learned Judicial Magistrate 1st Class, Indora, District Kangra, H.P. are ordered to be quashed and set-aside.
Accordingly, the present petition is allowed in the aforesaid terms. Pending application(s), if any, also stands disposed of.
(Sandeep Sharma )
23rd May, 2017 Judge.
(shankar)
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