Himachal Pradesh High Court
Akshay Pankaj & Another vs State Of Himachal Pradesh & Another on 16 June, 2023
Author: Sushil Kukreja
Bench: Sushil Kukreja
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Cr.MMO No.372 of 2023 a/w
Cr. Revision No.392 of 2018
Date of Decision: 16.06.2023
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1. Cr.MMO No.372 of 2023
Akshay Pankaj & another
....Petitioners
Versus
State of Himachal Pradesh & another
...Respondents
___________________________________________________
2. Cr. Revision No.392 of 2018
Akshay Pankaj & another
....Petitioners
Versus
State of Himachal Pradesh
...Respondent
___________________________________________________
Coram
Hon'ble Mr. Justice Sushil Kukreja, Judge
Whether approved for reporting?1
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In both the petitions
For the petitioners : Mr. Ram Murti Bisht, Advocate.
For the respondents : Mr. B.N. Sharma, Additional
Advocate General with Mr. R.P.
Singh, Deputy Advocate General, for
the respondent/ State.
1 Whether reporters of Local Papers may be allowed to see the judgment?
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2
Mr. Rajul Chauhan, Advocate, for
respondent No.2 in Cr.MMO No.372
.
of 2023.
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Sushil Kukreja, Judge (oral)
Since both these petitions arise out of FIR No.368/2005, dated 05.10.2005, under Sections 341, 323, 324 & 506 read with Section 34 of the Indian Penal Code ('IPC'), registered against the petitioners at Police Station Kangra, District Kangra, H.P., therefore, these are being taken up together for adjudication.
2. The facts of the case, in brief, are that on 05.10.2005 at about 9:15 p.m. complainant Sanjay Kumar lodged a complaint with the police that on 05.10.2005 at about 8 p.m., when he was going towards Mataur Chowk on his scooter , accused Akshay Pankaj and Anuj Pankaj parked a van in front of his scooter and stopped him and accused Akshay came out of the van and attacked on his head with some sharp edged weapon and then both Akshay Pankaj and Anuj Pankaj started giving beatings to him with kick and fist blows, as a result of which, he fell down on the road and sustained injuries on his right leg and foot. In the meanwhile, Sanjeev Kumar and ::: Downloaded on - 17/06/2023 20:32:54 :::CIS 3 Raman Kumar, came on the spot and rescued him from the .
clutches of accused persons and took him to the hospital on their scooter. Accused Akshay Pankaj, under the influence of liquor, forced the complainant to bring cigarette etc. from the shop, to which the complainant refused, therefore, he kept enmity with him. After completion of the investigation, police presented the charge-sheet before the trial Court and after appreciating the evidence on record, the learned Judicial Magistrate First Class(II), Kangra, H.P., vide judgment dated 30.05.2011, passed in Criminal Case No.69-II/2006, convicted the accused persons for commission of the offences punishable under Sections 341, 323 & 324 read with Section 34 of IPC and vide order of sentence dated 31.05.2011, sentenced them to pay fine of Rs.500/- each for the offence punishable under Section 341 read with Section 34, IPC and in default of payment of fine to undergo simple imprisonment for 15 days.
Both the accused persons were also sentenced to undergo simple imprisonment for one month for commission of the offence under Section 323 read with Section 34, IPC with a fine of Rs.500/- each and in default of payment of fine to undergo ::: Downloaded on - 17/06/2023 20:32:54 :::CIS 4 simple imprisonment for 15 days and for commission of the .
offence under Section 324 read with Section 34, IPC, they were sentenced to undergo simple imprisonment for three months with a fine of Rs.1,000/- each and in default of payment of fine, to undergo simple imprisonment for one month.
3. Feeling aggrieved, the accused persons preferred an appeal before the learned Appellate Court, being Criminal Appeal No. 427 of 2013, which was dismissed by the learned Additional Sessions Judge (III), Kangra at Dharamshala, H.P., vide judgment dated 29.09.2018. Hence, the accused persons preferred the revision petition.
4. During pendency of the revision petition, the petitioners-accused persons also preferred a petition, being Cr.MMO No. 372 of 2022, under Section 482 Cr.P.C. for quashing the FIR No.368/2005, dated 05.10.2005, registered against them.
5. The FIR in question was lodged by complainant-
Sanjay Kumar (respondent No.2 in Cr.MMO No.372 of 2022) and his statement was recorded before this Court on ::: Downloaded on - 17/06/2023 20:32:54 :::CIS 5 26.05.2023 and he was duly represented and identified by .
Mr.Rajul Chauhan, Advocate.
6. Complainant Sanjay Kumar, in his statement, stated that on the basis of his complaint, FIR No.368/2005, dated 05.10.2005, was registered against the petitioners-accused persons at Police Station Kangra, District Kangra, H.P., under Sections 341, 323, 324 & 506 read with Section 34, IPC . He further stated that now the parties have entered into a compromise, vide compromise-deed, Annexure P-3, therefore, he has no objection, if aforesaid FIR is quashed and set aside.
7. I have heard learned counsel for the petitioners as well as the learned Additional Advocate General and learned counsel for respondent No.2 in Cr.MMO No.372 of 2023 and also gone through the material available on record.
8. The present petitions have to be decided in the light of the contentions of the learned counsel for the parties and also in view of the law laid down by the Hon'ble Supreme Court regarding the quashing of FIR. In Gian Singh Vs. State of Punjab and others, reported in (2012) 10 SCC ::: Downloaded on - 17/06/2023 20:32:54 :::CIS 6 303, explaining that High Court has inherent power under .
Section 482 of the Code of Criminal Procedure with no statutory limitation, including Section 320 Cr.P.C., the Hon'ble Apex Court has held that these powers are to be exercised to secure the ends of justice or to prevent abuse of process of any Court and these powers can be exercised to quash criminal proceedings or complaint or FIR in appropriate cases where offender and victim have settled their dispute and for that purpose no definite category of offence can be prescribed. However, it is also observed that Courts must have due regard to nature and gravity of the crime and criminal proceedings in heinous and serious offences or offence like murder, rape and dacoity etc. should not be quashed despite victim or victim's family have settled the dispute with offender. Jurisdiction vested in High Court under Section 482 Cr.P.C. is held to be exercisable for quashing criminal proceedings in cases having overwhelming and predominately civil flavour particularly offences arising from commercial, financial, mercantile, civil partnership, or such like transactions, or even offences arising out of matrimony relating to dowry etc., family disputes or other such disputes where ::: Downloaded on - 17/06/2023 20:32:54 :::CIS 7 wrong is basically private or personal nature where parties .
mutually resolve their dispute amicably. It was also held that no category or cases for this purpose could be prescribed and each case has to be dealt with on its own merit but it is also clarified that this power does not extend to crimes against society.
9. In case Narinder Singh and others vs. State of Punjab and others, reported in (2014) 6 SCC 466 and also in State of Madhya Pradesh vs. Laxmi Narayan and others, (2019) 5 SCC 688, the Hon'ble Supreme Court has summed up and laid down principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercise 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 criminal proceedings.
10. In Madan Mohan Abbot vs. State of Punjab, (2008) 4 SCC 582, the Hon'ble Supreme Court emphasized and advised that in the matter of compromise in criminal proceedings, keeping in view the nature of the case, to save the time of the Court for utilizing to decide more effective and ::: Downloaded on - 17/06/2023 20:32:54 :::CIS 8 meaningful litigation, a common sense approach, based on .
ground of realities and bereft of the technicalities of law, should be applied.
11. Further, the Apex Court in Parbatbhai Aahir alias Parbhathbhai Bhimsinghbhai Karmur and others Vs. State of Gujarat and another, (2017) 9 SCC 641, summarizing the broad principles regarding inherent powers of the High Court under Section 482 Cr.P.C. has recognized that these powers are not inhibited by provisions of Section 320 Cr.P.C. and reiterated the principles/ parameters laid down in Narinder Singh's case (supra) for accepting the settlement and quashing the proceedings. Relevant paras of the judgment read as under:-
"14. The same principle was followed in Central Bureau of Investigation v. Maninder Singh (2016)1 SCC 389 by a bench of two learned Judges of this Court. In that case, the High Court had, in the exercise of its inherent power under Section 482 quashed proceedings under Sections 420, 467, 468 and 471 read with Section 120-B of the Penal Code. While allowing the appeal filed by the Central Bureau of Investigation Mr Justice Dipak Misra (as the learned Chief Justice then was) observed that the case involved allegations of forgery of documents to embezzle the funds of the bank. In such a situation, the fact that the ::: Downloaded on - 17/06/2023 20:32:54 :::CIS 9 dispute had been settled with the bank would not justify a recourse to the power under Section 482:
.
"17.....In economic offences Court must not only keep in view that money has been paid to the bank which has been defrauded but also the society at large. It is not a case of simple assault or a theft of a trivial amount; but the offence with which we are concerned is well planned and was committed with a deliberate design with an eye of personal profit regardless of consequence to the society at large.
To quash the proceeding merely on the ground that r the accused has settled the amount with the bank would be a misplaced sympathy. If the prosecution against the economic offenders are not allowed to continue, the entire community is aggrieved."
15. In a subsequent decision in State of Tamil Nadu v R Vasanthi Stanley (2016) 1 SCC 376, the court rejected the submission that the first respondent was a woman "who was following the command of her husband" and had signed certain documents without being aware of the nature of the fraud which was being perpetrated on the bank. Rejecting the submission, this Court held that:-
"14..... Lack of awareness, knowledge or intent is neither to be considered nor accepted in economic offences. The submission assiduously presented on gender leaves us unimpressed. An offence under the criminal law is an offence and it does not depend upon the gender of an accused. True it is, there are certain provisions in Code of Criminal Procedure relating to exercise of jurisdiction Under ::: Downloaded on - 17/06/2023 20:32:54 :::CIS 10 Section 437, etc. therein but that altogether pertains to a different sphere. A person committing .
a murder or getting involved in a financial scam or forgery of documents, cannot claim discharge or acquittal on the ground of her gender as that is neither constitutionally nor statutorily a valid argument. The offence is gender neutral in this case. We say no more on this score..."
"15.....A grave criminal offence or serious economic offence or for that matter the offence that has the potentiality to create a dent in the financial r health of the institutions, is not to be quashed on the ground that there is delay in trial or the principle that when the matter has been settled it should be quashed to avoid the load on the system..."
16. The broad principles which emerge from the precedents on the subject may be summarized in the following propositions:
16.1. 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 recognizes and preserves powers which inhere in the High Court;
16.2. 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 ::: Downloaded on - 17/06/2023 20:32:54 :::CIS 11 quash under Section 482 is attracted even if the offence is non-compoundable.
.
16.3.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 powe.
16.4. 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.
16.5. 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.
16.6. 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 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.
16.7. As distinguished from serious offences, there may be criminal cases which have an overwhelming or ::: Downloaded on - 17/06/2023 20:32:54 :::CIS 12 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;
16.8.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.
16.9 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 16.10 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."
12. In the instant case, it is not disputed that the parties have reached a settlement and on that basis have preferred the present petition (Cr.MMO No.372 of 2023) seeking quashment of the FIR. Once respondent No.2- Sanjay Kumar, who is the complainant/victim, does not want to hold the petitioners ::: Downloaded on - 17/06/2023 20:32:54 :::CIS 13 responsible, the quashing of such FIR would definitely be to .
secure the ends of justice and to prevent abuse of process of the Court. The facts of this case otherwise do not in any manner fall within the exceptions laid down by the Hon'ble Supreme Court where compromise cannot be entered into or the proceedings cannot be quashed. Moreover, the Hon'ble Apex Court in the judgments supra, has observed that power under Section 482 Cr.P.C. is not to be exercised in those cases which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. In the present case, the complainant is not interested in pursuing the criminal case against the petitioners and wants to maintain cordial relations with one another to live their lives peacefully, as such no fruitful purpose would be served in continuing with the criminal proceedings against the accused.
13. Consequently, in view of the peculiar facts and circumstances of the case, whereby compromise stands arrived at inter se petitioners-accused persons and the complainant, this Court deems it fit to exercise power vested in it under Section 482 Cr.P.C. and, as such, both these petitions are allowed.
::: Downloaded on - 17/06/2023 20:32:54 :::CIS 14Consequently, FIRNo.368/2005, dated 05.10.2005, under .
Sections 341, 323, 324 & 506 read with Section 34, IPC, registered at Police Station Kangra, District Kangra, H.P., and the impugned judgment of conviction dated 30.05.2011 and order of sentence dated 31.05.2011, passed by the learned Judicial Magistrate First Class (II), Kangra, HP, in Criminal Case No.69-II/2006 and affirmed by the learned Additional Sessions Judge (III), Kangra at Dharamshala, H.P., vide judgment dated 29.09.2018, are also quashed and set-aside and the petitioners are acquitted of the charges framed against them. Bail bonds, if any, stand discharged.
14. Petitions stand disposed of in above terms, so also the pending application(s), if any.
( Sushil Kukreja )
June 16, 2023 Judge
(VH)
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