Allahabad High Court
Surendra Goel vs State Of U.P. And 2 Others on 31 January, 2020
Author: Naheed Ara Moonis
Bench: Naheed Ara Moonis
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 46 Case :- APPLICATION U/S 482 No. - 3272 of 2020 Applicant :- Surendra Goel Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Abhinav Gaur,Anoop Trivedi (Senior Adv.),Mohd. Rashid Siddiqui Counsel for Opposite Party :- G.A. Hon'ble Naheed Ara Moonis,J.
The instant application has been filed on behalf of the applicant to quash the entire proceedings pursuant to the charge sheet dated 18.12.2018 whereby the cognizance has been taken on 4.1.2019 registered as Sessions Trial No.4 of 2019 pending in the court of S.C./S.T. Act, Meerut arising out of case crime no.0293 of 2018, under Sections 420,467,468,471,504,506 IPC and Section 3(2)(5A) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (amended 2015), police station Ganga Nagar, District Meerut.
The prosecution case in short conspectus is that the opposite party no. 2 had lodged an FIR against the applicant on 9.10.2018 that he belongs to S.C./S.T. Community and is resident of Muzaffar Nagar, however, he was residing at Meerut. The applicant who is the resident of New Delhi met with him in Meerut and disclosed that he has 12-13 thousand Squire Yard agricultural land, of which he is the sole owner and has right to sale. The property is free from all encumbrances and no case is pending with regard to the agricultural land which can be sold to the opposite party no.2 after demarcating and plotting the said land. On this assurance and reposing trust on the applicant, the complainant had agreed to purchase the land of Khasra No.94 of worth Rs.675,71608/- and from Khasra No. 93 for Rs. 2575800/-. Thus the total amount of both the Khasras was Rs.7,01,47,408/-. The opposite party no. 3 became co-partner with the opposite party no.2, but the applicant had transferred only 4020 Hectare land of plot no. 94 on 2.12.2014. by virtue of a sale-deed and had also taken Rs. 4.25 Crore and refused to execute the sale-deed of rest of the land in favour of the complainant-opposite party no.2. The applicant thereafter adopted delaying tactics on one ground or the other and as such when the complainant inquired about the position of the land, it came to his knowledge that both the plots are vested with the State Government and in respect of those land, the case is pending before the Hon'ble Supreme Court which was well within the knowledge of the applicant. When the applicant had no right to transfer the land, yet he executed the sale-deed by committing fraud and cheating and had made an agreement to sale the land for Rs.7,01,47,408/-, and he had usurped hefty amount of Rs. 4,25,00000/- (rupees 4.25 crore only) from the complainant. On coming to know about the fraudulent act committed by the applicant, the opposite party no.2 moved an application before the concerned Circle Officer, Ganga Nagar, Meerut on 4.5.2018 giving the detail of the incident. When the applicant came to know about moving the said application, he abused the complainant by using caste derogatory abusive words and vituperative remarks beside extending threat to the complainant of dire consequences. The applicant had also declared that the police would not take any action against him. On the basis of the written report when no action was taken the complainant filed another application before the S.S.P. Meerut pursuant to which the case was registered against the applicant on 9.10.2018 under Sections 420,467,468,471,504,506 IPC and Section 3(2)(5A) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Amended 2015).
Learned counsel for the applicant has submitted that the applicant is being maliciously prosecuted in the present case as the entire allegations contained in the FIR are based upon incorrect facts. The opposite party no.3 who is a Member of Legislative Assembly from the Hastinapur Constituency, District Meerut was inimical with the applicant and the opposite party no.2 has lodged the FIR at his behest. The applicant has only sold 4020 Hectare to the opposite party nos.2 & 3 by means of registered sale-deed, dated 2.12.2014 and as the applicant is residing in New Delhi, the opposite party no.2 in collusion with the opposite party no.3 has taken advantage of his absence from the District Meerut and have started to encroach upon the remaining land of the applicant. The applicant has never agreed to sell the entire land as mentioned in the FIR, yet opposite party no.2 has carved out small plots and sold to different persons claiming himself to be the owner of the entire land and hence the applicant had instituted a Suit No.317 of 2018 for permanent prohibitory injunction against the opposite party nos.2 & 3. The opposite party nos.2 & 3 were arrayed as opposite party nos.3 & 4 who had moved an application under Order 7 Rule XI of C.P.C. However, the said application was rejected by the court below and the said civil suit is still pending. On account of transfer of land by the opposite party nos.2 & 3 surreptitiously the applicant had also moved an application under Section 156(3) Cr.P.C. before the court of Chief Judicial Magistrate, Meerut on 22.5.2018 which was treated as complaint case no.4267 of 2018 and the learned Magistrate after recording the statement under Section 200/202 Cr.P.C. of the applicant and the other witnesses summoned them to face trial under Sections 420, 467, 468, 471, 504, 506 IPC vide order dated 17.7.2018. Both the opposite party nos.2 & 3 who were the accused in the aforesaid case have challenged the proceeding before this Court by way of filing Criminal Misc. Application (under Section 482 Cr.P.C.) No.29366 of 2018 which was later on got dismissed by them as withdrawn vide order dated 10.9.2018.
It is further submitted that as the opposite party nos.2 & 3 could not succeed, the opposite party no.2 lodged the impugned FIR on 9.10.2018 wholly with malafide intention and hence aggrieved by the impugned FIR, the applicant approached this Court by way of filing Criminal Misc. Writ Petition No.30243 of 2018 with a prayer to quash the FIR registered against him and another Division Bench of this Court after considering the circumstance of the case, stayed the arrest of the applicant till submission of police report under Section 173(3) Cr.P.C. vide order dated 26.10.2018. However, after investigation the police has submitted charge sheet against the applicant on 18.12.2018 and the court below has also taken cognizance on 4.1.2019 in a mechanical manner.
It is further submitted that the applicant and opposite party no.2 have now entered into amicable settlement and have filed joint affidavit before the court below in the present case on 6.1.2020. The compromise deed executed between the parties has been appended as Annexure No.8 to the present application and also an application which was filed by the opposite party no.2/complainant that no dispute has remained between the parties. In pursuance of the joint compromise deed, all the differences have come to an end between the parties who shall withdraw the cases pending before the court below and hence as the opposite party no.2 does not want to prosecute the applicant in the aforesaid case, the present criminal case against the applicant is liable to be quashed.
It is further submitted that as both the parties have entered into compromise and the opposite party no.2 does not want to continue the prosecution of the applicant, hence the continuance of the proceeding against the applicant would be sheer wastage of valuable time of the Court and abuse of process of law hence liable to be quashed.
To prop up the submission, the learned counsel has placed reliance upon the decision of the co-ordinate Bench of this Court in Criminal Misc. Application (under Section 482 Cr.P.C.) No.29426 of 2012 Surendra Pal Vs. State of U.P. and another, dated 10.8.2018 contending that in the said case the accused applicant was also charged for the offence punishable under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 along with Penal Offences which has been quashed relying upon the following decisions of Hon'ble the Apex Court:
1. B.S. Joshi and others Vs. State of Haryana and another (2003)4 SCC 675;
2. Nikhil Merchant Vs. Central Bureau of Investigation [2008)9 SCC 677];
3. Manoj Sharma Vs. State and others ( 2008) 16 SCC 1;
4. Gian Singh Vs. State of Punjab (2012) 10 SCC 303
5. Narindra Singh and others Vs. State of Punjab ( 2014) 6 SCC 466.
It is further submitted that as the proceeding was quashed in spite of the offence under Section 3(1) of S.C./S.T. Act in the aforesaid cases, hence the proceeding pending against the applicant pursuant to the charge sheet and the cognizance taken against him in the instant case deserves to be quashed in terms of the compromise. The applicant will also withdraw all the cases i.e. civil and criminal filed against the opposite party nos.2 & 3 which has been specifically averred in the compromise deed.
Learned counsel Shri Ankur Verma appearing for the opposite party no.2 has filed a counter affidavit on behalf of the opposite party no.2 and has contended that as the opposite party no.2 entered into compromise with the applicant and does not want to further prosecute the case against the applicant, hence the criminal proceedings pending against the applicant be quashed.
However, learned A.G.A. for the State has contended that as the cognizance has also been taken against the applicant under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act which is special law, hence the prosecution of the applicant may not be quashed solely on the basis of the compromise between the parties.
It is further contended that Section 320 of the Code of Criminal Procedure envisages only the offences, which are covered by Table 1 or Table 2 of the section, can be compounded and the rest of the offences punishable under the Indian Penal Code under Section 320(2) Cr.P.C. cannot be compounded except with the leave of the Court. The applicant has been charged for the offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act also and the offences punishable under special statute are not covered by Section 320 Cr.P.C. There is no express provision in the Act of 1989 or in the amended Act permitting compounding of the offences under the Act. Thus in the absence of any express provision in the Act, the offence cannot be compounded to quash the entire proceedings pending against the applicant.
It is further submitted that similar question has already been settled by the Hon'ble Madhya Pradesh High Court in the case of Antu Tiwari @ Praveen Vs. State of Madhya Pradesh and another MCRC No.7287 of 2017, decided on 30.8.2007 where the quashing of the FIR on the ground of compromise under Section 3(1)(r)(5) of S.C./S.T. Act was held not compoundable and the application has been dismissed.
Similar view has been expressed by the Hon'ble High Court of Chhattisgarh vide order dated 8.8.2014 in Criminal Revision NO.376 of 2014; Girdhari Lal Chaudhary and another Vs. State of Chhattisgarh where rejecting the application by Special Judge, S.C./S.T. Act for compounding the offence under Section 320 Cr.P.C. qua the offence under Section 3(1)(X) of the Act was held to be justified and the revision was dismissed.
Lastly it is contended by the learned A.G.A. that under the present facts and circumstances of the case, the cases of the Hon'ble Apex Court which have been relied upon in Surendra Pal (Supra) by the learned counsel for the applicant are not applicable as it has not dealt with the compounding of the offences under the S.C./S.T. Act which is a special statute, hence the proceeding pending against the applicant cannot be quashed merely on the basis of the compromise, if any, arrived at between the parties in the cases which have been relied upon by the applicant's counsel.
This Court has given anxious consideration to the arguments of the learned counsel for the parties. At the very outset it has been fervently pleaded by the learned counsel for both the parties that they have entered into compromise.
However, the astonishing feature of the case is that a counter affidavit has been filed on behalf of the opposite party no.2 with utmost carelessness. This affidavit has been sworn by the deponent opposite party no.2 Dinesh Kumar, in an insouciant manner. In only three paragraphs, the counter affidavit has been filed, which reads as under:
1. That the deponent is the complainant/opposite party No. 2 in the aforesaid case. He has filed a copy of Adhar Card along with this affidavit and as such he is fully acquainted with the facts of the case deposed to below.
2. That the deponent has entered into compromise with the applicant and thus, has filed affidavit which is already on record in the present 482 application;
3. That the deponent agrees with the terms of the compromise and does not want to further continue the criminal proceedings and is agreeing if the Hon'ble Court quashes the same.
However, swearing clause further indicates that all the above three paragraphs have been sworn on the basis of personal knowledge of the deponent. Thereafter it is mentioned that paragraphs 25,27 & 30 of the counter affidavit are based on legal advice. There is only three paragraphs in the counter affidavit, but it has been sworn that paragraph Nos. 25, 27 and 30 of the counter affidavit are based on legal advice and attested by the deponent opposite party no.2 and verified by his Advocate and sealed by the Oath Commissioner. Yet another peculiar fact is that though the counsel who has verified this affidavit has obtained Vakalatnama of the deponent on 22.1.2020 subsequent to the swearing of the affidavit which was sworn on 16.1.2020. Thus this counter affidavit has been sworn in the absence of power which document itself speaks in volume that the applicant is interested to somehow get the proceeding quashed on the basis of compromise so that he may not face the prosecution in the instant case.
In view of the above, the moot question is whether offence under Section 3(2)(5A) of S.C./S.T. Act, 1989 can be compounded on the basis of the compromise arrived at between the parties. Section 320 Chapter XXV of the Code of Criminal Procedure provides compounding of offence. There are two categories of the offences under the provisions of Indian Penal Code which have been made compoundable; first category of the offence as provided under Section 320(1) of the Code, in which the leave of the court for compounding of offences is not required whereas offence as provided Section 320(2) of the Code, leave of the Court is required for compounding of offence. Third Column of the table of Section 320 of the Code provides that compounding can only be possible at the instance of the person who is either a complainant or who has been injured or is aggrieved and rest of the offences punishable under the Indian Penal Code cannot be compounded.
The Hon'ble the Apex Court in the case of Gian Singh Vs. State of Punjab (2012) 10 SCC 303 has clearly held that compounding of an offence has to be in accord with Section 320 and in no other manner. It has also been held by the Hon'ble Apex Court that in the aforesaid case that offences punishable under the special statutes are not covered by Section 320 Cr.P.C. Thus in absence of enabling provision in Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 for composition or compounding of the offences the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is not compoundable. The Act is special statute enacted with an intention to eradicate untouchability and to make stringent provision in case of any offence committed against the member of a Scheduled Castes and Scheduled Tribes. The offence has been made non-compoundable for which strict punishment is provided, which cannot be treated at par with the offences punishable under the Indian Penal Code.
The applicant himself has initiated the proceeding against the opposite party no.2 by filing criminal complaint, for playing fraud and prepared forged documents in usurping his land by selling the land to different purchasers and the summoning order was passed against the opposite party nos.2 & 3 on 17.7.2018 for the same the prohibitory injunction suit was also filed The charge sheet has been submitted against the applicant in the present case and cognizance has been taken not only under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act also but also in various offences of the IPC, it cannot be presumed that whatever the grievance the applicant had against the opposite party nos. 2 & 3 would have been resolved more so the counter affidavit on behalf of the opposite party no.2 which has been filed in this regard in a most lackadaisical manner as pointed above.
The case of B.S. Joshi (Supra) is in respect to matrimonial dispute relating to offence under Section 498-A IPC where the Hon'ble Apex Court observed that even though the provision of Section 320 Cr.P.C. would not apply to such offences which are not compoundable, it did not limit or affect the powers under Section 482 of the Code. Hence the Hon'ble Apex Court laid down 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.
In the case of Nikhil Merchant (Supra) the dispute was relating to commercial transaction between the Company and the Bank which had been set at rest on the basis of the compromise arrived at between them whereunder the dues of the Bank had been cleared and the Bank have no further claim against the Company. Hence the Hon'ble Apex Court observed that the continuance of the criminal proceedings of the aforesaid case after compromise arrived at between the parties would be futile exercise.
In Manoj Sharma (Supra) also the case relating to offence under Sections 420/468/471/34/120-B IPC as the parties have entered into settlement, the proceeding was quashed.
In the case of Gian Singh (Supra) the dispute was between the petitioners and the Banks having been compromised, considering upon the various factors into consideration including the futility of continuing the criminal proceeding, the Hon'ble Apex Court ultimately quashed the same and has also observed that case of B.S. Joshi (Supra) should not be understood to have meant that Judges can quash any kind of criminal case merely because there has been a compromise. Exercise of power under Section 482 Cr.P.C. depend upon the facts of a peculiar case as a crime is an offence against the society, and not merely against the private or individual.
In the case of Narindra Singh (supra) the Hon'ble Apex Court in paragraph 29.6 held that the offence under Section 307 IPC would fall in the category of heinous and serious offence and therefore to be generally treated as crime against the society and not against the individual alone. However, it was further observed that 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. Its further corroboration with the medical evidence or other evidence is to be seen, which will be possible during the trial only. Hence, the decision in the case of Narindra Singh (supra) will be of no assistance to the accused applicant in the present case.
Thus the ratio in all the aforesaid cases dealt with different factual situation as none of the cases relied in Surendra Pal (Supra) relates to offence under the S.C./S.T. Act. Therefore, inherent power of the Court cannot be exercised for doing that which has specifically prohibited by the Code. Particularly any compromise arrived at between the victim and the offender in relation to the offences under the special statute cannot provide for any basis for quashing of criminal proceeding involving such offences.
The scars left by the miscarriage of justice cannot be erased by any subsequent act of expiation. In exercise of power under Section 482 Cr.P.C. the proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case the ends of justice is higher than the ends of mere law though justice has got to be administered according to law made by the legislature. The jurisdiction under Section 482 Cr.P.c. is discretionary, therefore, this Court may refuse to exercise the discretion, if either party has not approached it with clean hands.
In such circumstance, reliance placed by the learned counsel for the applicant in the case Surendra Pal (Supra) would not apply in the present facts and circumstances of the case. The allegations made in the FIR clearly shows that the applicant had sold the land in respect whereof case was already pending before the Hon'ble Apex Court and yet sold the same surreptitiously to the opposite party no.2 and had intentionally abused and insulted with intent to humiliate the opposite party no. 2, who belongs to S.C./S.T. Community and extended threat to his life calling him by vituperative remarks. Hence in view of the observation of the Hon'ble Apex Court in Gian Singh (Supra) that the offences under the special statute are not covered by Section 320 of the Cr.P.C. and from the perusal of the materials on record and looking into the facts and after considering the arguments made at the bar, it does not appear that no offence has been made out against the applicant to quash the proceeding when pursuant to the charge sheet the court below has also taken cognizance.
Despite a law to protect marginalized communities from harassment, the abuse continues to be rampant in various form. Special laws made to protect a certain class. The compromise is the sine qua non of harmony and orderly behaviour but it cannot be diluted in the cloak that the offence is purely personal in nature between the parties. The Court should be the sentinel on the qui vive but will be failing in its duty to quash the proceeding on the basis of documents relating to compromise which raises question mark.
The interference at the threshold of quashing of the criminal proceedings in case in hand cannot be said to be exceptional as it discloses prima facie commission of an offence. In the result, the prayer for quashing of proceeding on the basis of compromise, for compounding of offence under Section 3(2)(5A) of the S.C./S.T. Act, is refused. There is no merit in this application warranting interference by this Court in exercise of power under Section 482 Cr.P.C., thus the same is accordingly dismissed. The applicant has ample opportunity to raise all the objections at the appropriate stage before the court below.
However, the applicant is directed to appear and surrender before the court below and apply for bail within a period of sixty days from today, the prayer for bail shall be considered expeditiously in accordance with law after hearing the Public Prosecutor.
In case the applicant fails to surrender within the stipulated period the court below shall take appropriate action against him.
Order Date :- 31.1.2020 M. Tariq