Himachal Pradesh High Court
Tara Chand & Others vs State Of Hp & Others on 4 July, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr.MMO No.155 of 2017
.
Date of Decision: 4th July,2017.
_____________________________________________________________________
Tara Chand & others .........Petitioners.
Versus
State of HP & others ..........Respondents.
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.
For the petitioners: Mr. R.L.Sood, Senior Advocate, with Mr.Arjun
r Lall, Advocate.
For the respondents: Mr.P.M.Negi & R.K.Sharma, Additional
Advocate Generals.
Sandeep Sharma, J. (Oral)
By way of instant petition filed under Section 482 of the Code of Criminal Procedure, a prayer has been made on behalf of the petitioners-accused (hereinafter referred to as the accused) for quashing the FIR No. 44/01 of 2006, dated 26.2.2006, under Section 436 read with Section 34 of IPC registered at Police Station Manali, District Kullu H.P., and setting aside the impugned judgment of conviction and sentence dated 24/7/2008/31.07/2008, passed by learned Sessions Judge, Kullu, District Kullu, H.P. in Sessions Trial No.54 of 2006.
Whether reporters of the Local papers are allowed to see the judgment?
::: Downloaded on - 07/07/2017 23:58:45 :::HCHP -2-2. Mr. R.L.Sood, learned Senior counsel representing the petitioners-accused, while inviting attention of this Court to the compromise/settlement(Annexure PB), contended that both the parties .
have compromised the matter and they want to live peacefully in future and maintain good, cordial relation with each other. Mr. Sood, further contended that since parties have arrived into an amicable settlement, without there being any pressure or influence on the complainant, the instant matter may be ordered to be compounded.
3. Mr. P.M.Negi, learned Additional Advocate General, while opposing the aforesaid prayer having been made on behalf of the petitioners, stated that instant matter cannot be ordered to be compounded in view of the fact that the petitioners stand convicted by the learned Sessions Judge, Kullu vide judgment dated 24.7.2008/ 31.07.2008 for having committed the offence punishable under Section 436 read with Section 34 of IPC. Mr. Negi, further contended that appeal against conviction having been filed by the petitioners is pending adjudication before this Court and otherwise also allegations against the petitioners-accused are of serious nature and as such, no leniency, if any, can be shown to them by acceding to their prayer made in the instant appeal.
4. I have heard learned counsel for the parties and have gone through the record.
::: Downloaded on - 07/07/2017 23:58:45 :::HCHP -3-5. This Court after having carefully perused the compromise/ settlement (Annexure-PB) arrived inter se the parties, sees reason much less cogent in considering the prayer having been .
made by learned counsel for the petitioners-accused for compounding the offences while exercising power under Section 482 Cr.P.C. At this stage, it may be appropriate to take note of the fact that complainant Madho Dass Mahant (respondent No.2) appeared in person before this Court on 22.6.2017 and stated he does not oppose this petition and affidavit sworn by him bears his signatures.
6. Though, this application under Section 482 Cr.P.C. has been filed under the signatures of the petitioner-accused namely Shishu Pal, but all the other co-accused namely Tara Chand and Sonam Sharma as well as complainant Madho Dass Mahant have filed their affidavit in support of the application, as referred above. The Hon'ble Apex Court in Narinder Singh and others versus State of Punjab and another (2014)6 Supreme Court Cases 466, has formulated guidelines for accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings. Perusal of judgment referred above clearly depicts that in para 29.1, Hon'ble Apex Court has returned the findings that 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 ::: Downloaded on - 07/07/2017 23:58:45 :::HCHP -4- 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 great caution. Para Nos. 29 to 29.7 of the judgment are reproduced 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 rthe 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:
29.1Power 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 ::: Downloaded on - 07/07/2017 23:58:45 :::HCHP -5-
(ii) to prevent abuse of the process of any Court.
While exercising the power under Section 482 Cr.P.C 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 ::: Downloaded on - 07/07/2017 23:58:45 :::HCHP -6- 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 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.
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.
::: Downloaded on - 07/07/2017 23:58:45 :::HCHP -7-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".
7. The Hon'ble Apex Court in case Gian Singh v. State of Punjab and anr. (2012) 10 SCC 303 has 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.PC.
Even in the judgment passed in Narinder Singh's case, the Hon'ble Apex Court has held that while exercising inherent power under ::: Downloaded on - 07/07/2017 23:58:45 :::HCHP -8- Section 482 Cr.PC the Court must have due regard to the nature and gravity of the crime and its social impact and it cautioned the Courts not to exercise the power for quashing proceedings in heinous and .
serious offences of mental depravity, murder, rape, dacoity etc. However subsequently, the Hon'ble Apex Court in Dimpey Gujral and Ors. vs. Union Territory through Administrator, UT, Chandigarh and Ors. (2013( 11 SCC 497 has also held as under:-
"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.
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 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.::: Downloaded on - 07/07/2017 23:58:45 :::HCHP -9-
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 r 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." (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 ::: Downloaded on - 07/07/2017 23:58:45 :::HCHP
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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."
8. In the instant case, offences allegedly having been committed by the petitioners-accused are neither serious nor heinous offences of mental depravity or offences like murder, rape, dacoity, etc., rather offences allegedly committed by the petitioners-
accused are private in nature and do not have any serious impact on society. Apart from above, it clearly emerge from the compromise (Annexure PB) that as of today parties enjoy extremely cordial and warm relationship with each other and they have amicably settled the matter in order to further foster the warm association and relationship with each other. Complainant has categorically stated in the compromise arrived inter se the parties that he has entered into an agreement of his own free will and accord, without any pressure or influence of any kind whatsoever and as such, he does not wish to prosecute any further, the FIR as well as proceedings thereof. It clearly emerge from the averments contained in the application as well as compromise placed on record that the parties have compromised/settled the matter and their families wish to live with ::: Downloaded on - 07/07/2017 23:58:45 :::HCHP
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each other as good neighbours for all times to come and in this regard solely with a view to ensure that each and every source of annoyance/determent to the maintaining of aforesaid good .
relationship with each other is completely eradicated, they have approached this Court by way of joint application for getting the matter settled.
9. Though, Hon'ble Apex Court in Narinder Singh's case has held that mere compromise, if any, inter se the parties would not be a ground to quash and set-aside the FIR as well as consequent proceedings in the cases where accused has/have already been convicted by the trial Court. But, if aforesaid judgment of Hon'ble Apex Court is read in its entirety, power under Section 482 Cr.P.C is to be exercised by the Court to secure the ends of justice or to prevent abuse of the process of any Court and in this regard High Court is to form an opinion on either of the aforesaid two objectives taking into consideration facts of each case. In the aforesaid background, Hon'ble Apex Court has specifically directed the court below not to exercise such power in the cases which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity etc. But proceedings which are overwhelmingly and pre-dominantly of civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or ::: Downloaded on - 07/07/2017 23:58:45 :::HCHP
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family disputes should be quashed when the parties have resolved their entire disputes among themselves.
10. Though, Hon'ble Apex Court in Narinder Singh's case .
has cautioned the Courts not to exercise power under Section 482 Cr.P.C for quashing criminal proceedings in those cases which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity etc., which have a serious impact on society, however it has been held that High Court while exercising aforesaid power can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. The Hon'ble Apex Court has further held that 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.
11. Accordingly, this Court after taking note of the compromise arrived inter se the parties as well as settled proposition of law, has no inhibition in accepting the compromise and quashing the FIR as well as conviction and sentence recorded by the learned trial Court.
12. Consequently, in view of the peculiar facts and circumstances of the case, wherein parties have compromised the matter at hand, this Court while exercising power vested in it under Section 482 Cr.P.C., deems it fit to accept the prayer having been ::: Downloaded on - 07/07/2017 23:58:45 :::HCHP
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made by the learned counsel representing the petitioner.
Accordingly, in view of the discussion made hereinabove, the FIR No.44/01, dated 26.2.2006 registered at Police Station Manali, .
District Kullu H.P., under Section 436 and 34 of IPC against the petitioners as well as the conviction and sentence recorded by the learned Sessions Judge, Kullu in Sessions Trial No.54 of 2006 are ordered to be quashed and set-aside.
13. Petitioners-accused are acquitted of the charge. Their bail bonds are discharged. The fine amount, if any, deposited by the petitioners-accused be refunded to them.
The present petition is allowed in the aforesaid terms.
Pending application(s), if any, also stands disposed of.
Copy dasti.
4th July, 2017 (Sandeep Sharma),
shankar Judge.
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