Uttarakhand High Court
Vishal Uniyal And Another vs State Of Uttarakhand And Another on 22 September, 2014
Author: U. C. Dhyani
Bench: U. C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
Criminal Misc. Application No.1258 of 2012
Vishal Uniyal and another ... Applicants
vs.
State of Uttarakhand and another ... Respondents
Mr. R. P. Nautiyal, Senior Advocate assisted by Ms. Sangeeta Bhardwaj, Advocate present
the applicants.
Mr. V. K. Jemini, Deputy Advocate General with Ms. Shiwali, Joshi, Brief Holder present
for the State.
None present for respondent no.2.
U. C. Dhyani, J. (Oral)
1. The applicants, by means of present Application under Section 482 Cr.P.C., seek to quash the chargesheet dated 24.08.2011 and the summoning order dated 08.09.2011 passed by the Chief Judicial Magistrate, Dehradun in Criminal Case No.461 of 2012, under Sections 406 & 120-B IPC. The applicants also seek to quash the proceedings of the aforementioned criminal case pending before the said court.
2. Aggrieved against the chargesheet and summoning order, present application under Section 482 Cr.P.C. was preferred by the accused-applicants.
3. Applicant no.1 is the husband of respondent no.2 and the applicant no.2 is the father of applicant no.1.
4. It is the statement of learned counsel for the applicants that the parties have settled their dispute amicably, as is evident from the documents brought on record. Earlier, the same statement was given by learned counsel for the applicants on 16.06.2014. Upon this, respondent no.2 was sent notice. According to the -2- endorsement made by the Registry, respondent no.2 has been served personally (vide office report dated 05.07.2014). None has appeared for respondent no.2 in the Court today.
5. In view of the said fact, this Court has no other option but to believe the statement of learned counsel for the applicants that the parties have entered into compromise. The Misc. Case no.115/2011 pending before the Special Judicial Magistrate (CBI), Dehradun was decided on 07.06.2012 (copy enclosed at Annexure-6 to the petition) in terms of compromise. A certified copy of the joint application of Smt. Sarita Uniyal and Vishal Uniyal filed in the court of Principal Judge, Family Court, Dehradun in O.S. no.119/2011 (Annexure-7 to the petition) has been filed to show that Sarita Uniyal and Vishal Unial decided to part ways and agreed to dissolve their marriage. It was also agreed in para 12 of the said application that the proceedings of criminal case no. 2032/2011 under Section 406 IPC read with Section 120B IPC shall be decided in terms of amicable settlement between the parties. Both the parties also filed an application dated 30.05.2012 with a request to permit Sarita Uniyal (respondent no.2 herein) to withdraw the criminal case no.461/2012, under Sections 406 & 120-B IPC. On such application, learned Special Judicial Magistrate (CBI) made an endorsement on 10.07.2012 as 'permitted as per law'.
6. Since, as per the statement of learned counsel for the applicants, learned Magistrate did not permit the respondent no.2 to compound such offences, therefore, present applicants filed a criminal revision, which was dismissed. The revisional court held that if the Magistrate had directed that the application is permitted as per law, that does not mean that their application had been accepted.
-3-7. Feeling aggrieved against the same, the applicants have preferred present application under Section 482 Cr.P.C. There is no denying the fact that the parties have agreed to settle their dispute amicably, as is evident from so many documents filed alongwith the present petition, otherwise somebody must have appeared on behalf of respondent no.2 to oppose such move of the applicants. This Court, therefore, has no hesitation in coming to the conclusion that the parties have settled their dispute amicably.
8. Offence punishable under Section 406 IPC is compoundable offence within the scheme of Section 320 Cr.P.C. Code of Criminal Procedure is silent on Section 120-B IPC. Let us presume, for the sake of arguments, that the Legislature has not permitted compounding of the offence of 'criminal conspiracy'. The question is - whether the complainant should be permitted to compound such offence against the applicants or not?
9. The Apex Court has dealt with the consequence of a compromise in regard to non-compoundable offences in the case of B. S. Joshi and others vs. State of Haryana and another, (2003)4 SCC 675 and has held as below:
"If for the purpose of securing the ends of justice, quashing of FIR becomes necessary, Section 320 Cr.P.C. 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. Thus, the High Court, in exercise of its inherent power, can quash criminal proceedings or FIR or complaint and Section 320 of Cr.P.C. does not limit or affect the powers under Section 482 of the Code of Criminal Procedure, 1973.
-4-11. Learned counsel for the applicants drew attention of this Court towards the decisions of Hon'ble Supreme Court in Narendra Singh and others vs. State of Punjab and another, (2014) 6 SCC 466, Gian Singh vs. State of Punjab and another, (2013) 1 SCC (Cri) 160 and Nikhil Merchant vs. Central Bureau of Investigation and another, (2008) 9 SCC 667. Hon'ble Apex Court in Nikhil Merchant's case (supra) held that Section 320 Cr.P.C. will not come in the way of High Court in exercising it's inherent jurisdiction under Section 482 Cr.P.C. In Gian Singh's case (supra), Hon'ble Apex Court has observed as below:
"The position that emerges from the above discussion can be summarized 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 of 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 statues 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 -5- 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 proceedings 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."
12. Since the complainant has buried all her differences against the applicants, therefore, she should be permitted to compound such offences against the applicants in the interest of justice.
13. Compounding Application is allowed. As a consequence thereof, application under Section 482 Cr.P.C. is allowed. The impugned chargesheet dated 24.08.2011, summoning order dated 08.09.2011 and the proceedings of Criminal Case No.461/2012 pending in the court of Special Judicial Magistrate, CBI, District Dehradun are hereby quashed on the basis of compromise between the parties.
(U. C. Dhyani, J.) Dated 22nd September, 2014 Rawat