Allahabad High Court
Smt. Soni Sonkar & 2 Others vs State Of U.P. & 2 Others on 12 September, 2017
Bench: Krishna Murari, Akhilesh Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 21 Case :- CRIMINAL MISC. WRIT PETITION No. - 19315 of 2017 Petitioner :- Smt. Soni Sonkar & 2 Others Respondent :- State Of U.P. & 2 Others Counsel for Petitioner :- Pankaj Mishra Counsel for Respondent :- G.A. Hon'ble Krishna Murari,J.
Hon'ble Akhilesh Chandra Sharma,J.
(Delivered by Hon'ble Akhilesh Chandra Sharma,J.) The petitioners have approached this Court with the prayer for quashing First Information Report bearing case crime no. 289 of 2017 u/s 494, 323, 504, 506 IPC, P.S. Bhelupur, District-Varanasi on the basis of compromise effected between the parties.
Heard Sri Pankaj Mishra, learned counsel for petitioners, Sri Manoj Kumar, learned counsel for the Respondent No.3 and have also gone through material placed on record.
Learned counsel for the petitioners has stated that the alleged occurrence is stated to be held on 12.11.2016, while the first information report is alleged to have been lodged on 30.5.2017 at about 19.00 hours at police station Bhelupur, District Varanasi in Case Crime No. 289 of 2017 under section 494, 323, 504, 506 I.P.C. and the delay of about more than six months in lodging the first information report.
It is contended that during pendency of the investigation the dispute has been compromised between the parties and a joint affidavit of the petitioner and the first informant who are husband and wife has been filed reiterating the said fact. It is stated in paragraph 3 of the affidavit that the dispute has been compromised and a notary affidavit in this regard has been filed before the S.S.P. Varanasi as well as the Investigating Officer.
It is submitted by learned counsel for petitioners and respondent no.3/complainant, husband of petitioner no.1 that all the offences except offence u/s 494 IPC, are compoundable offences without permission of the Court. It is further submitted that offence under section 494 IPC is compoundable with the permission of the Court.
It may be mentioned that under Section 320(1) CrPC certain offences in IPC can be compounded by the persons mentioned in the third column of the table in that provision. Also, in view of Section 320(2) Cr.P.C. certain other offences can be compounded with the permission of the court. However, Section 320(9) specifically states:
"320(9) No offence shall be compounded except as provided by this section."
Their Lordships of the Supreme Court in the celebrated case reported as State of Karnataka Vs. L. Muniswami and others, AIR 1977 SC 1489 : (1977 Cri LJ 1125), observed that the High Court under its inherent powers can quash the proceedings if it comes to the conclusion that allowing proceedings to continue would be an abuse of the process of the Court or that ends the justice required that the proceedings ought to be quashed. In the said judgment, the Court observed that ends of justice are higher than ends of mere law. Though, justice has got to be administered according to the laws made by the legislatures. The Court observed in the said case that the Court proceedings ought not to be permitted to degenerate into a weapon of harassment or persecution. The Court also observed that lame prosecution be quashed. The relevant portion which could have vital bearing in determining and adjudicating the controversy, is reproduced as under:
"In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters is designed to achieve that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of which seeks to save the inherent powers of the High Court to do justice between the State and its subjects it would be impossible to appreciate the width and contours of that salient jurisdiction."
Their Lordships of the Supreme Court in similar circumstances have quashed the prosecution and have granted permission to compound the offence in Y. Suresh Babu Vs. State of Andhra Pradesh, (1987) 2 JT (SC) 361. In this case, the appellant was convicted under Section 326 IPC in a non compoundable offence by the Sessions Court and his conviction was affirmed by the High Court. Aggrieved by the order of the High Court, the appellant moved the apex court. It is mentioned in the judgment that through the intervention of well wishers, the parties who are from the same locality have reconciled their differences to preserve amity and good relations. The learned counsel for the accused/appellant submitted that his client has a feeling of remorse. While taking an oral view of the facts and circumstances, the Court granted leave to the party to compound the offence and conviction was set aside.
In Mahesh Chand and Another Vs. State of Rajasthan; 1990(3) Recent Cri R 332 and Kailash and others Vs. State of Haryana; 1992(3) Recent Cri R 198(Punj & Hry), their Lordships of the Supreme Court have granted permission for compounding of the offence under Section 326 I.P.C.
In Chiranji Lal Vs. State of Uttar Pradesh, (1982) 3 SCC 371 (1) their Lordships of the Supreme Court granted permission for compounding a non-compoundable offence. While granting the permission, the Court observed that the Complainants have appeared before the Court and have stated that they have compromised the matter and have received the compensation and no rancour is now left in their hearts against the appellant. In these circumstances, the Court allowed the application and sanctioned the compounding of offence.
In R.P. Kapur Vs. The State of Punjab, AIR 1960 SC 866 : (1960 Cri LJ 1239), the Supreme Court had an occasion to lay down some guidelines for the High Courts for exercising its inherent powers. The Court observed that it is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of the High Court's inherent jurisdiction. But this power can always be used for securing the ends of justice. The Supreme Court and the High Courts have been consistent in their approach that the High Courts have inherent powers to quash proceedings where allowing the proceedings to go on would be an abuse of process of law and/or where the ends of justice require the proceedings to be quashed. But as far as power of compounding a non-compoundable offence is concerned, there is conflict of opinion among the High Courts. The courts have examined this issue on various occasions and arrived at different findings.
In Vijender Jain, J. of the Delhi High Court in R.S. Arora Vs. State; 1995 JCC 439 has also taken the view that the High Court has the power to compound even the non-compoundable offences. The Court observed that this power should be exercised sparingly. The relevant portion of the judgment is reproduced.
"It is true that offences which are non-compoundable in relation to the quashing of such offences, the High Court has to act with great caution and circumspection but to agree with the arguments of learned counsel for the State that those offences which are non-compoundable in view of the Section 320 of the Cr.P.C., the High Court will be without power although parties have settled their matter amicably would be to make the provisions of Section 482 of the Cr.P.C. nugatory and ineffective. The Parliament has specifically provided Section 482 in the Cr.P.C. and High Court in exercise of these powers which are plenary are neither fettered by any provision of the code and certainly not by Section 320 of the Cr.P.C. So long as these powers are exercised by the High Court to secure the ends of justice and to stop abuse of the process of the Court. Compromise in modern society is a sine qua non of harmony and orderly behaviour. Compromise is the soul of justice. Exercising the inherent powers. Under Section 482 of the Cr.P.C. in disputes which emanates out of matrimonial differences, landlord-tenant matters or commercial transactions are to advance the course of justice. No useful purpose will be served after the parties have amicably settled their disputes, buried their past, want to live in a sprit of peace and harmony to relegate them before the police and the Courts, that will be sheer abuse of the process of Court and instead of securing justice would amount to perpetuating injustice to such parties, who have compromised their matters."
In B.S. Joshi and others Vs. State of Haryana and another, AIR 2003 SC 1386, the Hon'ble Apex Court, while dealing with a similar as question in hand, held as under:
"It is, thus, clear that Madhu Limaye's case does not lay down any general proposition limiting power of quashing the criminal proceedings or FIR or complaint as vested in Section 482 of the Code or extra ordinary power under Article 226 of the Constitution of India. We are, therefore, of the view that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, Section 320 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. "
Their Lordship of the Supreme Court in similar circumstances have quashed prosecution and have granted permission to compound the offence in Manoj Sharma Vs. State and others, (2008) 16 SCC.
In Central Bureau of Investigation Vs. Sadhu Ram Singla & others, AIR 2017 SC 1312 their lordship of Supreme Court has observed that, "The power to do complete justice is the very essence of every judicial justice dispensation system. It cannot be diluted by distorded perceptions and is not a slave to anything; except to the caution and circumspection, the standards of which the Court sets before it, in exercise of such plenary and unfettered power inherently vested in it while donning the cloak of compassion to achieve the ends of justice. No embargo, be in the shape of Section 320(9) of the Cr.P.C. Or any other such curtailment, can whittle down the power under Section 482 of the Cr.P.C."
In Gyan Singh Vs. State of Punjab 2012 (10) S.C.C. 3032 their lordship of Supreme Court has observed that, "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 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 Court shall be well within its jurisdiction to quash the criminal proceeding."
In Kulwinder Singh Vs. State of Punjab 2007 SCC 792 their lordship of Supreme Court has observed that, "It has been observed by Hon'ble the Apex Court in Mrs. Shakuntala Sawhney Vs. Mrs. Kaushalya Sawhney (1980)1 SCC 63 that "the finest Hour of Justice arrives propitiously when parties, despite falling apart, bury the hatchet and weave a sense of fellowship of reunion." The power to do complete justice is the very essence of every judicial justice dispensation system. It cannot be diluted by distorted perceptions and is not a slave to anything, except to the caution and circumspection, the standards of which the Court sets before it, in exercise of such plenary and unfettered power inherently vested in it while donning the cloak of compassion to achieve the ends of justice. Relying on the views adopted by the Hon'ble Supreme Court, the Five Judges Bench of this Court also observed in Kulwinder Singh Vs. State of Punjab 2007(3) R.C.R. (Cri) 1052 that compounding of offence which are not compoundable under Section 320 (9) Cr.P.C., offence non-compoundable but parties entering into compromise, High Court has the power under Section 482 Cr.P.C. to allow the compounding of non-compoundable offences and quash the prosecution where the High Court felt that the same was required to prevent the abuse of the process of Court or to otherwise secure the ends of justice.
While dealing with issue of quashing of FIR on the basis of compromise a Bench consisting of Five Hon'ble Judges of this Court in Kulwinder Singh's case (supra) while approving minority view in Dharambir Vs. State of Haryana 2005 (3) RCR (Criminal) 426: 2005(2) Apex Criminal 424: 2005 (2) Law Herald 723 (P&H) (FB), opined as under:-
" To conclude, it can safely be said that there can never be any hard and fast category which can be prescribed to enable the Court to exercise its power under Section 482, of the Cr.P.C. The only principle that can be laid down is the one which has been incorporated in the Section itself, i.e, "to prevent abuse of the process of any Court" or " to secure the ends of justice".
No embargo, be in the shape of Section 320 (9) Cr.P.C. or any other such curtailment, can whittle down the power under Section 482 Cr.P.C."
In light of above law declared by Supreme Court, and in view of the fact mentioned above, we are of the opinion that in the interest of both sides to put an end of this criminal proceeding, because even if the proceeding is not quashed, they are unlikely to result in conviction if the complainant and the witnesses do not support the prosecution story in Court. Considering such futile proceedings would be unnecessarily a drain upon the time, money and other resources, not only of the parties and witnesses, but also of the Court.
In view of the totality of the facts and circumstances of this case and law declared by the apex Court and other Courts for securing the interest of justice, we deem it appropriate in the interest of justice to quash the FIR lodged in Case Crime No. No. 289 of 2017 u/s 494, 323, 504 and 506 IPC, Police Station-Bhelupur, Distt.-Varanasi and proceedings arising therefrom.
With this, writ petition is allowed.
Order Date :- 12.9.2017 MT**