Devendra Singh @ Devendra Mehra & ... vs State Of Uttarakhand And Another on 7 February, 2019

[Cites 12, Cited by 1]

Uttarakhand High Court

Devendra Singh @ Devendra Mehra & ... vs State Of Uttarakhand And Another on 7 February, 2019

A F.I.R. No. 2 of 2018, dated 20.04.2018, was registered at Police Station Mallital, Nainital, District Nainital by respondent No. 2 alleging for commission of an offence under Sections 307, 504 and 506 I.P.C. & 25 of the Arms Act. The said offence was investigated upon and, consequent thereto, the Investigating Officer has submitted a chargesheet, being Chargesheet No. 3/18, dated 30th August, 2018, has been submitted as against the present applicants, who are said to have been involved in the commission of said offence.

2. On submission of the chargesheet, the cognizance has been taken by the Court of Chief Judicial Magistrate, Nainital, by registering a case as Criminal Case No. 3242 of 2018, State Vs. Devendra Singh Mehra and others, in which, a summoning order dated 31st October, 2018, has been issued against the applicants.

3. The present C-482 Application, it has been accompanied with the Compounding Application No. 11210 of 2018, invoking Section 320 Cr.P.C. The said Compounding Application is duly signed by the parties to the C-482 Application, as well as by their respective counsel. The parties to the C-482 2 Application and, in particular, the complainant, Narendra Singh Bisht, who is present in person duly identified by his counsel, has categorically made a statement before this Court that as of now they have settled their scores outside the Court and no animosity survives amongst them. Hence, he voluntarily wants to compound the proceedings, as he does not want to prosecute the applicants any further.

4. Similarly, an independent affidavit, which has been filed by the complainant, too, in its para 2, had made reference to the settlement, which has been arrived at by the interference of the family members of both the parties. Para 2 of the affidavit reads as under :-

"That the deponent has amicably settled his dispute with the applicants with the interference of the reputed persons of the society and with the interference of the family members of the parties, and the respondent no.2 do not want to proceed further against the applicants and wants to close the criminal proceeding against applicants and hence the aforesaid Criminal Misc. Application may be allowed in view of the amicable settlement and the deponent wants to compromise with the applicants."

5. Considering the fact that a statement has been made by the complainant that he does not want to prosecute the present applicants and also the statements made by the applicants, who too are present, had made an identical statement, hence, the parties to the proceedings of the C-482 Application jointly pray for composition of the offence, as referred hereinabove.

6. The Compounding Application filed by the private parties is being opposed by the learned Brief Holder, appearing for the State, on the ground that the nature of offence, as levelled against the applicants, which is said to have been committed by the applicants and, in particular, the offence under Section 307 I.P.C., is not compoundable under Section 320 of the Cr.P.C.

7. In support of his contention, the learned Brief Holder places reliance on the recent judgment, as rendered by the Hon'ble Apex Court in Criminal Appeal No. 14 of 2019, State of Madhya Pradesh Vs. Kalyan Singh and Others, wherein, the scope of compounding of the offence under Section 307, 294 and 34 of I.P.C. is contended to have been settled by the Hon'ble Apex Court. Having gone through the judgment and considering the arguments of the Brief Holder, this Court is of the view that the aforesaid finding, on which, reliance has been placed by the learned Brief Holder, was under consideration of the conditions and facts of that particular case as it prevails in the said case. Apart from it, this judgment had not taken into consideration the wider principles as laid down by Hon'ble Apex Court in the judgment of the Hon'ble Apex Court in the case of Narinder Singh and others Vs State of Punjab and another reported in (2014) 6 SCC 466, wherein, the Hon'ble Apex Court in para 29 of the said judgment, had widely considered the impact of the power of the superior Courts under Section 482 Cr.P.C. for compounding the offences, which are, otherwise, not compoundable under Section 320 Cr.P.C. Para 29 of the said judgment reads 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:

29.1. 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. 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 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 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 307IPC 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 307IPC. 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. 5 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."

8. Para 29.6 and 29.7 of the judgment of Narinder Singh (Supra) refers to the scope of the composition of the offence under Section 307 I.P.C., wherein, it has been held that the High Courts can always, while exercising its supervisory 6 jurisdiction, can examine as to whether there is a possibility of conviction or chances of conviction, based on the circumstances prevailing in the said case and, consequently, a conclusion has been drawn by the Hon'ble Apex Court in relation to the offence under Section 307 of the I.P.C. in para 29.7 of the said judgment.

9. This Court, too, while considering the impact and the powers under Section 482 Cr.P.C., in the light of the ratio as propounded by the Hon'ble Apex Court in the case of Narinder Singh (Supra) and several other judgments of Hon'ble Apex Court had rendered a judgment in the case of Pan Singh Rana Vs. State of Uttarakhand and another reported in 2018 (2) U.D., 680, wherein, the scope and the powers of the High Court has been considered for the purposes of composition of the offences, which are otherwise, held out not compoundable under Section 320 of the Cr.P.C., including the offence under Section 307 I.P.C.

10. Having considered the ratio as laid down in the case of Narinder Singh (Supra) as well as that of Pan Singh Rana (Supra), the objection as taken by the learned Brief Holder, may not be tenable in the light of the circumstances, which have been narrated in the Compounding Application.

11. Considering the pleading raised therein, this Court is of the view that in view of the aforesaid ratio, the Compounding Application deserves to be considered by this Court, while exercising its power under Section 482 Cr.P.C., wherein, if the High Courts under the given set of circumstances of the particular case comes to the conclusion that the proceedings of the Trial would result into an act of futility, owing to the fact that the complainant, does not want to prosecute the accused / applicants, the offence, though, not compoundable under Section 320 Cr.P.C., but, yet, it can be compounded under the aforesaid facts by the Courts while exercising power under Section 482 Cr.P.C.

12. Considering the material brought on record as well as after hearing the learned counsel for the parties, as well as the parties who are present in person, duly identified by their counsel, this Court is of the view that considering the fact that the parties have settled their dispute and the complainant had made a statement before this Court that he does not want to prosecute the applicants any further, the Compounding Application No. 11210 of 2018 would stand allowed and, consequently, the present C-482 Application too would stand allowed and as a result thereto, the proceedings of Criminal Case No. 3242 of 2018, State Vs. Devendra Singh Mehra and another, pending before the Chief Judicial Magistrate, Nainital would stand quashed.

13. Accordingly, the C-482 Application would stand allowed.

(Sharad Kumar Sharma, J.) (Vacation Judge) 07.02.2019 Shiv

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Uttarakhand High Court