Himachal Pradesh High Court
Shri Ajay Kumar And Others vs State Of Himachal Pradesh And Another on 20 July, 2018
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MMO No.132 of 2018 .
Decided on : July 20, 2018 Shri Ajay Kumar and others .... Petitioners Versus State of Himachal Pradesh and another .... Respondents The Hon'ble Mr. Justice Sanjay Karol, Acting Chief Justice .
Whether approved for reporting? No 1 For the Petitioners : Ms. Anu Tuli Azta, Advocate.
For the Respondents : Mr. Adarsh Sharma, Addl. A.G. and
r Ms. Svaneel Jaswal, Dy. A.G. for
respondent/State.
Mr. Surender Thakur, Advocate as
Legal Aid Counsel for R-2.
Sanjay Karol, Acting Chief Justice (oral) This petition under Section 482 of the Code of Criminal Procedure (for short 'Code') has been preferred by the petitioners for quashing of FIR No.202, dated 21.10.2013, registered at Police Station, Sadar Shimla, District Shimla, H.P., under the provisions of Sections 420, 120B and 34 of the Indian Penal Code and Criminal Case No.17-2 of 17/15, titled as State Versus Karan and others, pending in the Court of Judicial Magistrate 1s t Class, Court No.(3), Shimla, District Shimla, H.P. Whether reporters of Local Papers may be allowed to see the judgment ?
::: Downloaded on - 24/07/2018 23:00:53 :::HCHP 22. It is alleged by the complainant (Shri Maheshwar Dutt Sharma) that in the year 2013, the petitioners (accused .
persons), in furtherance of their common intention, had committed illegal act and cheated him by dishonestly inducing him to deliver `1,35,050/- for installation of Mobile Tower.
3. The matter was reported to the police, on the
4.
r to basis of which aforesaid FIR came to be registered against the present petitioners.
This petition stood filed on the premise that the matter stands compromised between the present petitioners and private respondent- No.2 vide Compromise Deed dated 15.5.2014 (Annexure P-5).
5. When the matter came up before this Court on 12.4.2018, complainant Shri Maheshwar Dutt Sharma was impleaded as party respondent No.2 and on 11.5.2018, dasti notice was issued to respondent No.2 , returnable for 16.5.2018 and the matter was adjourned for 15.6.2018. On 15.6.2018, Legal Aid Counsel was appointed for the private respondent and the matter was adjourned for 20.7.2018.
6. Today, the case was taken up for further consideration. Learned counsel for the petitioners states that on 15.5.2014, the matter stands compromised between the ::: Downloaded on - 24/07/2018 23:00:53 :::HCHP 3 parties vide compromise deed (Annexure P-5). It has specifically come in the compromise deed that after receiving .
`1,35,000/- from the accused persons, respondent No.2 (complainant) had no grudge against all the petitions (accused persons).
7. Private respondent Shri Maheshwar Dutt Sharma, who is present in Court, admits that he has entered into a compromise with the petitioners and does not intend to pursue the matter any further. His statement is accepted and taken on record.
8. Ms. Anu Tuli, learned counsel, who appears for the petitioners, states that a sum of `10,000/-, as expenses charges, shall positively be remitted into the bank account of private respondent namely Shri Maheshwar Dutt Sharma, within a period of one week. Particulars of the bank account shall be supplied to the learned counsel for the petitioners within a period of next two days. Liberty reserved to the complainant to seek further order, if so required or desired.
9. That this is not such a case wherein the offences for which the petitioners have been charged can be stricto sensu held to be the offences against the State. Even otherwise, once respondent No.2 has got recorded his statement in the aforesaid terms, the possibility of conviction ::: Downloaded on - 24/07/2018 23:00:53 :::HCHP 4 is remote and bleak and the continuation of the criminal case against the petitioners would put them to great oppression .
and prejudice and extrem e injustice would be caused to them by not quashing the criminal case.
10. In Narinder Singh & Ors. v. State of Punjab & Anr. JT 2014 (4) SC 573 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 settlement between the parties and exercising its powers under Section 482 of the Code while accepting the settlement to the and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings, which reads thus:-
"(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:::: Downloaded on - 24/07/2018 23:00:53 :::HCHP 5
(i) ends of justice, or
(ii) to prevent abuse of the process of any Court.
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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 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.
::: Downloaded on - 24/07/2018 23:00:53 :::HCHP 6(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 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.
::: Downloaded on - 24/07/2018 23:00:53 :::HCHP 7(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/investigat ion. 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 ::: Downloaded on - 24/07/2018 23:00:53 :::HCHP 8 recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime."
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11. 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 respondent No.2, who is the worst affected person on account of this inci dent, does not want to hold the petitioners responsible, the quashing of such FIR would definitely be to secure the ends of justice and to prevent abuse of process of the Court.
12. 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.
13. Thus, taking holistic view of the matter and looking into all attending facts and circumstances, I find this case to be a fit case to exercise powers under Section 482 of the Code and accordingly the FIR No.202, dated 21.10.2013, registered at Police Station, Sadar Shimla, District Shimla, H.P., under the provisions of Sections 420, 120B and 34 of the Indian Penal Code, is ordered to be quashed. Since FIR has been quashed, the proceedings pending before Judicial Magistrate 1s t Class, Court No.(3), Shimla, District Shimla, ::: Downloaded on - 24/07/2018 23:00:53 :::HCHP 9 H.P., in Criminal Case No.17-2 of 17/15, titled as State Versus Karan and others, are thereby rendered infructuous.
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However, the same are expressly quashed so as to obviate any confusion.
With the aforesaid observations, present petition stands allowed and disposed of accordingly, so also pending application(s), if any.
July 20, 2018
r(KS)
to (Sanjay Karol),
Acting Chief Justice
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