Allahabad High Court
Sanesh Thakur And 3 Others vs State Of U.P. And Another on 17 March, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. -48 Case :- APPLICATION U/S 482 No. - 20982 of 2017 Applicant :- Sanesh Thakur And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Harish Kumar Yadav,Suved Kumar Sharma Counsel for Opposite Party :- G.A.,Vinod Kumar Yadav Hon'ble Manish Kumar Nigam,J.
The brief facts of the case are that :
1. F.I.R. under Sections 385, 323, 504, 506 IPC was registered on 13.8.2015 at P.S.-Civil Lines, District-Moradabad against the applicants who are four in number. After conducting the investigation, the Police has submitted charge-sheet No.286 of 2015 dated 14.9.2015 under Sections 385, 323, 504, 506 IPC against all the applicants. On 18.2.2016, Chief Judicial Magistrate, Moradabad has taken cognizance under Sections 385, 323, 504, 506 IPC and summoned the accused applicants. Copy of the order is at page 30 of the paper book and Criminal Case No.1146 of 2016 (State Vs. Sanesh Thakur and others) was registered.
2. The present application under Section 482 Cr.P.C. has been filed by the accused applicants challenging the order of cognizance dated 18.2.2016 as well as the entire proceedings of Criminal Case No.1146 of 2016 (State of U.P. Vs. Sanesh Thakur and others) pending before the Additional Chief Judicial Magistrate, Court No.2, Moradabad. Apart from other grounds taken in the application, the Counsel for the applicant submitted that opposite party no.2 namely Asheesh Agrawal who was the informant, moved an application before the court below that the matter has been compromised between the parties and he does not want to proceed with the case. It was prayed in the aforesaid application which is at page 38 of the paper book that in light of the compromise, proceedings in case no.1146 of 2016 be quashed.
3. This Court vide order dated 11.7.2017 stayed the further proceedings against the applicants in case crime no. 586/2015, criminal case no. 1146 of 2016 under Sections 385, 323, 504, 506 IPC P.S.-Civil Lines, District-Moradabad and issued notice to the opposite party no.2.
4. Again when the matter was taken up on 4.11.2022, the Counsel for the parties submitted that the parties have entered into a compromise and have settled their dispute. On the aforesaid submission, this Court vide order dated 4.11.2022 directed that the compromise shall be verified within a period of four weeks. The order dated 4.11.2022 is quoted as under :-
"Learned counsel for the parties submits that parties have entered into compromise and have settled their dispute. A copy of compromise was placed before the court concerned, however in absence of specific order it was not verified.
Therefore, it is directed that the compromise shall be verified within a period of 4 weeks and thereafter a report shall be send to this Court within a period of two weeks thereafter.
Put up this case after 6 weeks."
5. After the order dated 4.11.2022, learned Additional Chief Judicial Magistrate, Court No.2, Moradabad submitted a report before this court mentioning therein that matter has been compromised between the parties and the same has been verified on 03.01.2023.
6. In this regard, a supplementary affidavit has also been filed by the applicants which has been taken on record on 21.02.2023 reiterating the position that matter has been compromised between the parties and the same has been verified.
7. Learned Counsel for the applicants submitted that as the dispute has been settled amicably outside the court and compromise entered into the parties has been verified before the court below, the present application u/S 482 be allowed and proceedings of Case No.1146 of 2016 (State Vs. Sanesh Thakur and others) arising out of Case Crime No.586 of 2015 under Sections 385, 323, 504, 506 IPC, P.S.-Civil Lines District-Moradabad be quashed.
8. Learned A.G.A. submitted that it is correct that the matter has been compromised between the parties. Learned AGA further submitted that offence under Section 385 IPC is not compoundable in view of Section 320 Cr.P.C. and the list appended to Section 320 of Cr.P.C. and therefore, the proceedings of Case No.1146 of 2016 (State Vs. Sanesh Thakur and others) cannot be quashed. In support of his contentions, learned AGA relied upon the judgment of Apex Court in case of Ram Lal and another Vs. State of J&K reported in (1999) 2 SCC 213 and the judgment of Apex Court in case of State of Rajasthan Vs. Shambhu Kewat and another reported in (2014) 4 SCC 149.
9. The Hon'ble Supreme Court in case of Ram Lal and another Vs. State of J&K (supra) has held that Section 320 Cr.P.C. which deals with "compounding of offences" provides two Tables therein, one containing descriptions of offences which can be compounded by the person mentioned in it, and the other containing descriptions of offences which can be compounded with the permission of the court by the persons indicated therein. Only such offences as are included in the said two Tables can be compounded and non else. Sub-section 9 of Section 320 of Code of Criminal Procedure, 1973 imposes a legislative ban on compounding except as provided in the section.
10. In State of Rajasthan (supra), the Hon'ble Supreme Court in paragraph no.15 of the judgment has held as follows:-
"15. We are not prepared to say that the crime alleged to have been committed by the accused persons was a crime against an individual, on the other hand it was a crime against the society at large. Criminal law is designed as a mechanism for achieving social control and its purpose is the regulation of conduct and activities within the society. Why Section 307 IPC is held to be non-compoundable, is because the Code has identified which conduct should be brought within the ambit of non-compoundable offences. Such provisions are not meant, just to protect the individual, but the society as a whole. The High Court was not right in thinking that it was only an injury to the person and since the accused persons (sic victims) had received the monetary compensation and settled the matter, the crime as against them was wiped off. Criminal justice system has a larger objective to achieve, that is, safety and protection of the people at large and it would be a lesson not only to the offender, but to the individuals at large so that such crimes would not be committed by any one and money would not be a substitute for the crime committed against the society. Taking a lenient view on a serious offence like the present, will leave a wrong impression about the criminal justice system and will encourage further criminal acts, which will endanger the peaceful co-existence and welfare of the society at large."
11. In reply, it has been contended by learned Counsel for the applicant that there is no impediment in exercise of powers of the High Court under Section 482 Cr.P.C. in quashing criminal proceedings where the parties have settled their dispute amicably.
12. It is correct that Section 385 IPC is not an offence mentioned in either of the Tables referred in Section 320 Cr.P.C. In case of Gian Singh Vs. State of Panjab and another reported in (2012) 10 SCC 303, the Hon'ble Supreme Court has held that Section 320 of the Code articulates the public policy with regard to compounding of offences. It catalogues the offences punishable under IPC which may be compounded by the parties without permission of the Court and certain offences can be compounded only with the permission of Court. The offences punishable under the special statutes are not covered by Section 320.
13. While considering the question with regard to the inherent powers of the High Court in quashing the criminal proceedings against an offender who has settled his dispute with the victim of the crime but the crime in which, he is allegedly involved, is not compoundable under Section 320 of the Code, the Hon'ble Supreme Court in Para 57 of the judgment in case of Gian Singh (supra) has held that quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence, they are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a Court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the Court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequences may be acquittal or dismissal of indictment.
14. In paragraph 58 of the judgment in case of Gian Singh (supra), the Hon'ble Apex Court has laid down that where the High Court quashes a criminal proceeding having regard to the fact that the dispute between the offender and the victim has been settled although the offences are not compoundable, it does show that in its opinion, continuation of criminal proceeding will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored, securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrongdoing that seriously endangers and threatens the well-being of the society and it is not safe to leave the crime-doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without the permission of the Court. In respect of serious offences like murder, rape, dacoity etc or other offences of mental depravity under IPC or offences of moral turpitude under special statues, like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between the offender and the victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry etc. or family dispute, where the wrong is basically to the victim and the offender and the victim have settled all disputes amicably, irrespective of fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceedings or criminal complaint or FIR if it is satisfied that on the face of such settlement, there is hardly any likelihood of the offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and end of justice shall be defeated.
15. The Hon'ble Apex Court in Narindra Singh and another Vs. State of Punjab and another reported in (2014) 6 SCC 466 in paragraph no.29 has laid down the guidelines by which the High Court would be guided in giving adequate treatment to the 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. The guidelines as provided in paragraph no.29.1 to 29.7 are quoted as under:-
"29.1. 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.
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
(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.
29.3. Such a power is not to 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 hand, 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 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. 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. "
16. In case of Parbatbhai Aahir Vs. State of Gujarat reported in (2017) 9 SCC 641, the Supreme Court again considered that whether the High Court can quash the FIR/complaint/criminal proceedings, in exercise of the inherent jurisdiction under Section 482 Cr.P.C. After considering the various judgments of the Apex Court on the point, the Hon'ble Supreme Court summarised the following propositions in para 16.1 to 16.10 which are quoted as under:-
"16.1. Section 482 Cr.P.C. 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;
16.2. 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 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 Cr.P.C. The power to quash under Section 482 is attracted even if the offence is non-compoundable.
16.3. 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.
16.4. 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.
16.5. 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.
16.6. 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 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.
16.7. 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.
16.8. 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.
16.9. 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 16.10. There is yet an exception to the principle set out in propositions 16.8 and 16.9 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 economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance."
17. Again, in case of State of Madhya Pradesh Vs. Laxmi Narayan and others reported in (2019)5 SCC 688, the Hon'ble Supreme Court, considered the law on the aforesaid point and in paragraph nos. 15.1 to 15.5 observed as follows:-
"15.1. 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;
15.2. Such power is not to be exercised in those prosecutions which involved 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;
15.3. 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;
15.4. 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. 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 should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove;
15.5. 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. "
18. In case of State of Madhya Pradesh Vs. Laxmi Narayan and others (supra), the Supreme Court has considered the judgment in case of State of Rajasthan Vs. Shambhu Kewat and another (supra).
19. From the perusal of the record it appears that the real dispute between the parties is relating to grant of advertisements to the newspaper published by applicant no.1 from the opposite party no.2 who is running an institute, which is private in nature. The present criminal prosecution arose incidently between the parties and is not a natural consequence of the real occurrence. It is apparent that the parties have entered into a compromise and they further appear to have settled their dispute amicably. The opposite party no.2 who would be a key prosecution witness, if the trial were to proceed, has declared his unequivocal intent to turn hostile at the trial. In these circumstances, it is apparent that the merits and truth apart, the proceedings in trial, if allowed to continue, may largely be a waste of precious time by the learned court below.
20. The court cannot remain oblivious to the hard reality that the facts of the present case and other similar cases present where, though the allegations made in the FIR do appear to contain the ingredients of a criminal offence, however, in view of settlement having been reached, the chances of conviction are not only bleak but, if such trials are allowed to continue along with all other trials which are piled up, practically in all criminal courts in the state, the continuance of trials in cases such as the instant case may only work to the huge disadvantage of other cases where litigants are crying for justice.
21. Thus, looking at the prevalent tendencies in the society, a more pragmatic, and less technical approach commends to the court - to let some criminal prosecutions such as the present case be dropped, for the sake of more effective, efficient and proper trial in other cases where the litigants appear to be serious about their rights and more consistent in their approach.
22. Considering the facts and circumstances of the case and submissions advanced by learned Counsel for the parties, regarding the compromise entered into between the parties and taking all these factors into consideration cumulatively, the compromise between the parties be accepted and further taking into account the legal position as laid down by the Apex Court in case of Narindra Singh and others Vs. State of Punjab and another (supra), Parbatbhai Ahir Vs. State of Gujrat (supra) and State of Madhya Pradesh Vs. Laxmi Narayan and others (supra), the entire proceedings of the aforesaid case are hereby quashed.
23. The present application u/S 482 thus is allowed, subject however to payment of cost to be deposited by the parties before the High Court Legal Services Committee, Allahabad, within a period of three weeks from today. Such cost has to be imposed to let the parties (in this case) in particular and the society in general know that the courts cannot remain a mute spectator to unscrupulous and errant behaviour of certain persons. A society that will allow its members to misuse its courts, will ultimately suffer and pay a huge cost. Litigants, both genuine and bogus, will always continue to stand in a common queue. The courts have no mechanism to pre-identify and distinguish between the genuine and the bogus litigants. That differentiation emerges only after the hearing is concluded in any case and hearing requires time. In fact, even if the courts were to take punitive action against a bogus litigant, then, being bound by rules of procedure and fairness, such cases are likely to take more time than a case of two genuine litigants.
24. In such circumstances, though no useful purpose would be served in allowing the prosecution to continue any further, however, no firm conclusion may be reached, at this stage, as to complete falsity of the allegations made against the applicants. The present Section 482 Cr.P.C. application thus stands allowed, subject however to payment of cost of Rs. 12,500/- (2,500 on each party) to be deposited before the High Court Legal Services Committee, Allahabad, within a period of three weeks from today.
Order Date :- 17.3.2023 S. Singh