Himachal Pradesh High Court
Vikas Kumar And Others vs State Of H.P on 6 March, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, .
SHIMLA Cr. MMO No. 79 of 2019.
Date of decision: 06.03.2019.
Vikas Kumar and others .....Petitioners
Versus
State of H.P. ..... Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 No For the Petitioners : Mr. Tek Chand, Advocate.
For the Respondent: Mr. Vinod Thakur and Mr. Sudhir Bhatnagar, Additional Advocate Generals with Mr. Bhupinder Thakur and Ms. Svaneel Jaswal, Dy. Advocate Generals.
Tarlok Singh Chauhan, Judge (Oral).
When the case was listed on 1.3.2019, the following order came to be passed:
"Issue notice. Mr. Bhupinder Thakur, learned Deputy Advocate General, appears and waives service of notice on behalf of the respondent.1
Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 07/03/2019 22:00:03 :::HCHP 2 The parties are present in person and jointly state that they have amicably settled the matter, whereby .
petitioner No.1, in addition to the amount of Rs.2,00,000/- already paid to petitioner No.3, has further agreed to pay a sum of Rs.3,00,000/- to petitioner No.3 by depositing the same in his bank account.
As prayed for, the case be listed on 6.3.2019, when petitioner No.1 shall remain personally present before this Court alongwith receipt of the deposit. Personal presence of petitioners No.2 and 3 are dispensed with."
2. In compliance to the aforesaid order, petitioner No.1 has further deposited a sum of Rs.3,00,000/- in the account of petitioner No.3, the receipt alongwith the photocopy of front page of the bank pass book relating to the account of petitioner No.3 is taken on record.
3. Petitioners have jointly approached this Court for compounding the offence in terms of the compromise entered into between them.
4. As observed in the order dated 1.3.2019, the compromise so entered into between the petitioners, was not accepted by this Court as it was felt that the amount of Rs.2,00,000/- which has already been paid to petitioner No.3 ::: Downloaded on - 07/03/2019 22:00:03 :::HCHP 3 was too meagre, however, now that the petitioner No.1 has paid an additional amount of Rs.3,00,000/- to petitioner No.3 by .
depositing the said amount in the account of petitioner No.3 and the said amount would otherwise account for the compensation in case the petitioner No.3 would have preferred a claim petition before the competent Tribunal.
5. Even otherwise, petitioner No.3, who had appeared in person before this Court on the last date of hearing, clearly and unequivocally stated that he is not interested in pursuing the FIR and any further proceedings against petitioner No.1 and would have no objection to the matter being compounded by this Court in exercise of its power under Section 482 Cr.P.C.
6. Similar issue came up before the Hon'ble Supreme Court in Narinder Singh and others vs. State of Punjab and another (2014) 6 SCC 466, wherein the Hon'ble Supreme Court after summing up the legal position has laid down the following guidelines for the High Court in giving adequate treatment to the settlement between the parties and exercising its powers under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with ::: Downloaded on - 07/03/2019 22:00:03 :::HCHP 4 direction to continue with the criminal proceedings, which reads thus:-
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"(I) 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.
(II) 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.
(III) 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 ::: Downloaded on - 07/03/2019 22:00:03 :::HCHP 5 not to be quashed merely on the basis of compromise between the victim and the offender.
.
(IV) 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.
(V) 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.
(VI) 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 ::: Downloaded on - 07/03/2019 22:00:03 :::HCHP 6 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. (VII) 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 ::: Downloaded on - 07/03/2019 22:00:03 :::HCHP 7 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."
7. It would be seen that prior to Narinder Singh's case (supra), a three Hon'ble Judges Bench had considered the relevant scope of Sections 482 and 320 Cr.P.C. in Gian Singh versus State of Punjab and another (2012) 10 SCC 303 wherein it was held that 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.P.C. While exercising inherent power of quashment under ::: Downloaded on - 07/03/2019 22:00:03 :::HCHP 8 Section 482 Cr.P.C., the Court must have due regard to the nature and gravity of the crime and its social impact. It warned .
the High Court for quashing proceedings in heinous and serious offences of mental depravity, murder, rape, dacoity etc. which principles have been reported and reaffirmed in Narinder Singh's case (supra).
8. The principles in Narinder Singh's case (supra) were thereafter reiterated and reaffirmed in Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai and others versus State of Gujarat and another, (2017) 9 SCC 641, wherein the Hon'ble Supreme Court laid down the following broad principles for exercising inherent jurisdiction under Section 482 Cr.P.C. for quashing of FIR/criminal complaint, which read thus:-
"(i) 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 recognises and preserves powers which inhere in the High Court;
(ii) 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 ::: Downloaded on - 07/03/2019 22:00:03 :::HCHP 9 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 quash under Section 482 is attracted even if the offence is non-compoundable.
(iii) 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 power;
(iv) 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;
(v) 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;
(vi) 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 ::: Downloaded on - 07/03/2019 22:00:03 :::HCHP 10 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;
(vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or 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;
(viii) 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;
(ix) 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
(x) 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 ::: Downloaded on - 07/03/2019 22:00:03 :::HCHP 11 economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic .
system will weigh in the balance."
9. Now, the further question remains, whether this Court can quash proceedings where the petitioner has been charged under Sections 279, 337 IPC and Section 187 of the Motor Vehicles Act. This question need not detain this Court any longer in view of the judgment of the Hon'ble Supreme Court in Dimpey Gujral, W/o Vivek Gujral and others versus Union Territory through Administrator, UT, Chandigarh and others (2013) 11 SCC 497 where the Hon'ble Supreme Court in a case seeking quashment of FIR and its consequential proceedings involving Sections 147, 148, 149, 323, 307, 452 and 506 IPC after relying upon the judgment of Gian Singh's case (supra) held as follows:-
"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.::: Downloaded on - 07/03/2019 22:00:03 :::HCHP 12
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 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 r 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, the 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 ::: Downloaded on - 07/03/2019 22:00:03 :::HCHP 13 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 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. Similar reiteration of law can be found in two recent decisions of the Hon'ble Supreme Court rendered by three Hon'ble Judges in State of Madhya Pradesh vs. Dhruv Gurjar and another, Criminal Appeal No.336 of ::: Downloaded on - 07/03/2019 22:00:03 :::HCHP 14 2019, decided on 22.2.2019 and State of Madhya Pradesh vs. Laxmi Narayan and others, Criminal Appeal No.349 of .
2019, decided on 5.3.2019. In Laxmi Narayan's case, the three Hon'ble Judges were required to resolve the apparent conflict between the two earlier decisions of the Hon'ble Supreme Court in Narinder Singh and others vs. State of Punjab and another (2014) 6 SCC 466 and State of Rajasthan vs. Shambhu Kewat and another (2014) 4 SCC 149 that had been referred to a bench of three Judges.
11. The Hon'ble Supreme Court after concluding that there was no apparent conflict between the two decisions while considering the law with regard to exercise of power conferred under Section 482 of the Code of Criminal Procedure, laid down the following principles:
i) that the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves;
ii) such power is not to be exercised in those prosecutions which involved heinous and serious ::: Downloaded on - 07/03/2019 22:00:03 :::HCHP 15 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;
iii) similarly, such power is not to be exercised for the offences under the special statutes like 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;
iv) offences under Section 307 IPC and the Arms Act etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone, and therefore, the criminal proceedings for the offence under Section 307 IPC and/or the Arms Act etc. which have a serious impact on the society cannot be quashed in exercise of powers under Section 482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves. 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 framing 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. ::: Downloaded on - 07/03/2019 22:00:03 :::HCHP 16 However, such an exercise by the High Court would be permissible only after the evidence is collected after .
investigation and the charge sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paragraphs 29.6 and 29.7 of the decision of this Court in the case of Narinder Singh (supra) should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove;
v) while exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offences, which are private in nature and do not have a serious impart on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise etc."
12. Keeping in view the aforesaid guidelines, it is not disputed that the parties have reached a settlement and on that basis have preferred the present proceedings seeking quashment of the FIR. Once the petitioners No.2 and 3 do not want to hold the petitioner No.1 responsible, the ::: Downloaded on - 07/03/2019 22:00:03 :::HCHP 17 quashing of such FIR would definitely be to secure the ends of justice and to prevent abuse of process of the Court.
.
13. 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.
14. Thus, taking holistic view of the matter and looking into all attending facts and circumstances, I find this to be a fit case to exercise powers under Section 482 of the Code and accordingly, FIR No. 99 of 2017 dated 25.4.2017, registered at Police Station Sadar, Chamba, District Chamba, H.P., under Sections 279, 337 IPC and Section 187 of Motor Vehicles Act alongwith all consequential proceedings against petitioner No.1 stand quashed and consequently, the petitioner No.1 stand acquitted of the offences.
15. The petition stands allowed in the aforesaid terms. Pending application, if any, also stands disposed of.
Copy dasti.
6th March, 2019. (Tarlok Singh Chauhan) (gr) Judge ::: Downloaded on - 07/03/2019 22:00:03 :::HCHP