Jammu & Kashmir High Court
Niva Sinha And Ors. vs State And Anr. on 21 December, 2018
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRMC No.267/2012
Date of order: 21.12.2018
Niva Sinha and ors. Vs. State of J&K & anr.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For Petitioner(s) : Mr. Rupak Ratta, Advocate.
For respondent (s) : Mr. A. M. Malik, Dy. AG for respondent No.1.
Mr. Ashfaq Ahmed Khan, Advocate for respondent
No.2.
i) Whether to be reported in
Digest/Journal : Yes/No.
ii) Whether approved for reporting
in Press/Media : Yes/No.
1. Petitioners have filed present petition for quashing of FIR No.146/2004
under Section 420, 337, 109, 506 RPC as also Challan pending before the
Court of learned CJM Doda arising out of afore said FIR No.146/2004,
on the ground of compromise affected between the complainant and the
petitioners.
2. From bare perusal of the petition, it is evident that there were various
cases pending between the parties before different courts in India.
Petitioners have attached a copy of petition filed before SDJM Patna
wherein parties filed a compromise petition executed between accused
persons namely Sunil Kumar (respondent No.2 herein), Sunita
Kumari, Sudhir Kumar, Shobha Devi, Sharda Choudhary and all
complainants namely Niva Sinha, Deo Chandra Prasad, Smt. Roopkala
Devi, Pankaj Kumar (petitioner No.2 herein ) and Paras Nath Pandey
(petitioner No.3 herein). In the said petition, it has categorically been
CRMC No.267/2012 Page 1 of 9
stated that they have mutually agreed to decide the dispute between
them. Paragraph No.16 of the said petition reads as under:-
"That Sunil Kumar has instituted FIR in Doda P.S. Case No.146/04 pending
before CJM, Doda. In this case Niva Sinha has preferred transfer petition in
Hon'ble Supreme Court vide Transfer Petition (Criminal) No.315/2009, which is
pending. Parties have agreed that they will file joint petition along with this
compromise petition in Hon'ble Supreme Court for taking all necessary steps in
Doda PS Case No.146/04 pending before C.J.M, Doda for termination of the
proceeding in favour of the accused persons resulting in their
discharge/acquittal and then such order will be filed in said case in Hon'ble
Supreme Court for dismissal of the transfer case."
3. Respondent No.2 has also filed objections wherein it has been stated that
he has no objection in case this petition is allowed and FIR in question
and all subsequent proceedings are quashed as parties have entered into
compromise.
4. Even there are sworn affidavits of complainant and respondent No.2 on
record, which authenticate the factum of compromise.
5. On 15.11.2010 Hon'ble Supreme Court in Transfer Petition (CRL)
No.315 of 2009 filed by petitioners against respondent No.2 and
another, it has been held that; learned counsel for the parties have
compromised their disputes and the compromise deed has been placed
on the file. In this view of the matter, the transfer petition is rendered
infructuous and is disposed of accordingly.
6. Heard learned counsel for both sides and considered the facts and law on
the subject.
6. A Coordinate Bench of this Court has already considered a similar issue
in 561-A No.345/2017 vide order dated 09.06.2017 wherein the petition
was allowed and the charge sheet and the proceedings against the
CRMC No.267/2012 Page 2 of 9
petitioners therein were quashed. It is apt to reproduce operative part of
the said order as under:
"Offence under Section 307 RPC is also the offence
relating to use of weapons by the petitioners are non
compoundable. However, it is stated that parties are next-
door neighbours to each other. They have buried the
hatchets and want to live as friendly neighbours. Learned
counsel for the petitioners cites a judgment of the Supreme
Court in the case of "Narinder Singh & ors. v. State of
Punjab & anr." 2014(2) Crimes (SC) 67.
Parties having entered into a compromise, trial of the
petitioners may not be fruitful. That apart, it would be in
the better interest of both the parties in case they are given
chance to materialise their intention to live as friendly
neighbours. Allowing compensation would be profitable as
compared to continuing with the trial.
Viewed thus, this petition is allowed the charge sheet
and the proceedings against the petitioners (supra) are
quashed."
7. In Yogendra Yadav & ors. Vs. State of Jharkhand & anr. reported in
2014 AIR (SC) 3055, the Hon'ble Supreme Court held has under:-
4. Now, the question before this Court is whether this Court
can compound the offences under Sections 326 and 307 of the
IPC which are non-compoundable. Needless to say that
offences which are non-compoundable cannot be compounded
by the court. Courts draw the power of compounding offences
from Section 320 of the Code. The said provision has to be
strictly followed (Gian Singh v. State of Punjab1 ). However, in
a given case, the High Court can quash a criminal proceeding
in exercise of its power under Section 482 of the Code having
regard to the fact that the parties have amicably settled their
disputes and the victim has no objection, even though the
offences are non-compoundable. In which cases the High
Court can exercise its discretion to quash the proceedings will
depend on facts and circumstances of each case. Offences
which involve moral turpitude, grave offences like rape,
CRMC No.267/2012 Page 3 of 9
murder etc. cannot be effaced by quashing the proceedings
because that will have harmful effect on the society. Such
offences cannot be said to be restricted to two individuals or
two 1 (2012) 10 SCC 303 4 Page 5 groups. If such offences are
quashed, it may send wrong signal to the society. However,
when the High Court is convinced that the offences are entirely
personal in nature and, therefore, do not affect public peace or
tranquility and where it feels that quashing of such
proceedings on account of compromise would bring about
peace and would secure ends of justice, it should not hesitate to
quash them. In such cases, the prosecution becomes a lame
prosecution. Pursuing such a lame prosecution would be waste
of time and energy. That will also unsettle the compromise and
obstruct restoration of peace.
6. Learned counsel for the parties have requested this Court
that the impugned order be set aside as the High Court has not
noticed the correct position in law in regard to quashing of
criminal proceedings when there is a compromise. Affidavit
has been filed in this Court by complainant-Anil Mandal, who
is respondent No. 2 herein. In the affidavit he has stated that a
compromise petition has been filed in the lower court. It is
further stated that he and the appellants are neighbours, that
there is harmonious relationship between the two sides and
that they are living peacefully. He has further stated that he
does not want to contest the present appeal and he has no
grievance against the appellants. Learned counsel for the
parties have confirmed that the disputes between the parties
are settled; that parties are abiding by the compromise deed
and living peacefully. They have urged that in the
circumstances pending proceedings be quashed. State of
Jharkhand has 6 Page 7 further filed an affidavit opposing the
compromise. The affidavit does not persuade us to reject the
prayer made by the appellant and the second respondent for
quashing of the proceedings.
7. In view of the compromise and in view of the legal position
which we have discussed hereinabove, we set aside the
impugned order dated 4/7/2012 and quash the proceedings in
CRMC No.267/2012 Page 4 of 9
S.C.No.9/05 pending on the file of 2nd Additional Sessions
Judge, Godda. The appeal is disposed of."
8. In case Narinder Singh and ors. Vs. State of Punjab & anr. reported
in 2014 Cr.L.J. (SC) 2436, it is held as under:-
"26. The two rival parties have amicably settled the disputes between
themselves and buried the hatchet. Not only this, they say that since they
are neighbours, they want to live like good neighbours and that was the
reason for restoring friendly ties. In such a scenario, should the court give
its imprimatur to such a settlement. The answer depends on various
incidental aspects which need serious discourse.
The Legislators has categorically recognized that those offences which are
covered by the provisions of section 320 of the Code are concededly those
not only do not fall within the category of heinous crime but also which
are personal between the parties. Therefore, this provision recognizes
whereas there is a compromise between the parties the Court is to act at
the said compromise and quash the proceedings. However, even in
respect of such offences not covered within the four corners of Section
320 of the Code, High Court is given power under Section 482 of the Code
to accept the compromise between the parties and quash the proceedings.
The guiding factor is as to whether the ends of justice would justify such
exercise of power, both the ultimate consequences may be acquittal or
dismissal of indictment. This is so recognized in various judgments taken
note of above.
29. At this juncture, we would like also to add that the timing of
settlement would also play a crucial role. If the settlement is arrived at
immediately after the alleged commission of offence when the matter is
still under investigation, the High Court may be somewhat liberal in
accepting the settlement and quashing the proceedings/investigation. Of
course, it would be after looking into the attendant circumstances as
narrated in the previous para. Likewise, when challan is submitted but
the charge has not been framed, the High Court may exercise its
discretionary jurisdiction. However, at this stage, as mentioned above,
since the report of the I.O. under Section 173,Cr.P.C. is also placed
before the Court it would become the bounding duty of the Court to go
into the said report and the evidence collected, particularly the medical
evidence relating to injury etc. sustained by the victim. This aspect,
however, would be examined along with another important
consideration, namely, in view of settlement between the parties, whether
it would be unfair or contrary to interest of justice to continue with the
criminal proceedings and whether possibility of conviction is remote and
bleak. If the Court finds the answer to this question in affirmative, then
also such a case would be a fit case for the High Court to give its stamp of
approval to the compromise arrived at between the parties, inasmuch as
in such cases no useful purpose would be served in carrying out the
CRMC No.267/2012 Page 5 of 9
criminal proceedings which in all likelihood would end in acquittal, in
any case."
9. In case titled Central Bureau of Investigation vs Sadhu Ram Singla &
ors reported in 2017 AIR (SC) 1312. It is apt to reproduce paragraphs 8
to 16 as under:
"8. We have heard learned Additional Solicitor General appearing for
the CBI and learned senior counsel appearing for the respondents at
length and carefully examined the materials placed on record. We have
also taken notice of the fact that the counsel for the appellant in High
Court had sought time for filing the reply but no reply was filed. We have
also taken notice of the fact that the High Court while quashing the said
FIR and consequential proceedings, has relied on the Full Bench
judgment of that High Court in the case of Kulwinder Singh & Ors Vs.
State of Punjab & Anr., 2007 (4) CTC 769, in which reliance was placed
on the judgment delivered by this Court in the case of Mrs. Shakuntala
Sawhney Vs. Mrs. Kaushalya Sawhney & Ors., (1980) 1 SCC 63.
9. Learned Additional Solicitor General appearing for the CBI has
drawn our attention to the decision of this Court in Manoj Sharma Vs.
State & Ors., (2008) 16 SCC 1, wherein it was observed by this Court:
"22. Since Section 320 CrPC has clearly stated which
offences are compoundable and which are not, the High
Court or even this Court would not ordinarily be justified
in doing something indirectly which could not be done
directly. Even otherwise, it ordinarily would not be a
legitimate exercise of judicial power under Article 226 of
the Constitution or under Section 482 CrPC to direct doing
something which CrPC has expressly prohibited. Section
320(9) CrPC expressly states that no offence shall be
compounded except as provided by that Section. Hence, in
my opinion, it would ordinarily not be a legitimate exercise
of judicial power to direct compounding of a non-
compoundable offence."
10. We further wish to supply emphasis on the judgment delivered by
this Court in the case of State of Tamil Nadu Vs. R. Vasanthi Stanley &
Anr., (2016) 1 SCC 376, wherein it was observed:
"15. As far as the load on the criminal justice dispensation
system is concerned it has an insegregable nexus with
speedy trial. A grave criminal offence or serious economic
CRMC No.267/2012 Page 6 of 9
offence or for that matter the offence that has the
potentiality to create a dent in the financial health of the
institutions, is not to be quashed on the ground that there is
delay in trial or the principle that when the matter has
been settled it should be quashed to avoid the load on the
system. That can never be an acceptable principle or
parameter, for that would amount to destroying the stem
cells of law and order in many a realm and further
strengthen the marrows of the unscrupulous litigations.
Such a situation should never be conceived of."
11. Further reliance was placed on the decision of this Court in the
case of Central Bureau of Investigation Vs. A. Ravishankar Prasad &
Ors., (2009) 6 SCC 351, wherein it was held:
"39. Careful analysis of all these judgments clearly reveals
that the exercise of inherent powers would entirely depend
on the facts and circumstances of each case. The object of
incorporating inherent powers in the Code is to prevent
abuse of the process of the court or to secure ends of
justice."
12. Lastly, reliance was placed upon another judgment of this Court
in Central Bureau of Investigation Vs. Maninder Singh, (2016) 1 SCC
389, wherein it was held by this Court:
"19. In this case, the High Court while exercising its
inherent power ignored all the facts viz. the impact of the
offence, the use of the State machinery to keep the matter
pending for so many years coupled with the fraudulent
conduct of the respondent. Considering the facts and
circumstances of the case at hand in the light of the
decision in Vikram Anantrai Doshi case, (2014) 15 SCC 29,
the order of the High Court cannot be sustained."
13. Resisting the aforesaid submissions it was canvassed by Mr.
Bishwajit Bhattacharya, learned senior counsel appearing for the
respondents that High Court has judiciously and rightly considered the
facts and circumstances of the present case. Relying upon the judgment
of this Court in Gian Singh Vs. State of Punjab & Anr., (2012) 10 SCC
303, learned senior counsel appearing for the respondents strenuously
urged that the offences in the present case are not heinous offences. He
further drew our attention towards the relevant part of Full Bench
judgment of the High Court in Kulwinder Singh & Ors. Vs. State of
Punjab & Anr. (supra), which was reproduced in the impugned
judgment and the same is reproduced hereunder:
CRMC No.267/2012 Page 7 of 9
"26. In Mrs. Shakuntala Sawhney v. Mrs. Kaushalya
Sawhney & Ors.,(1980) 1 SCC 63, Hon'ble Krishna Iyer, J.
aptly summed up the essence of compromise in the following words :-
The finest hour of justice arrives propitiously when parties, despite falling apart, bury the hatchet and weave a sense of fellowship or reunion.
27. 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. 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."
14. Since the present case pertains to the crucial doctrine of judicial restraint, we are of the considered opinion that encroaching into the right of the other organ of the government would tantamount clear violation of the rule of law which is one of the basic structure of the Constitution of India. We wish to supply emphasis on para 21 of the Manoj Sharma's case (supra) which is as follows:
"21. Ordinarily, we would have agreed with Mr. B.B. Singh. The doctrine of judicial restraint which has been emphasised repeatedly by this Court e.g. in Aravali Golf Club v. Chander Hass (2008) 1 SCC 683 and Govt. of A.P. v. P. Laxmi Devi (2008) 4 SCC 720, restricts the power of the Court and does not permit the Court to ordinarily encroach into the legislative or executive domain. As observed by this Court in the above decisions, there is a broad separation of powers in the Constitution and it would not be proper for one organ of the State to encroach into the domain of another organ."
15. Having carefully considered the singular facts and circumstances of the present case, and also the law relating to the continuance of criminal cases where the complainant and the accused had settled their differences and had arrived at an amicable arrangement, we see no reason to differ with the view taken in Manoj Sharma's case (supra) and several decisions of this Court delivered thereafter with respect to the doctrine of judicial restraint. In concluding hereinabove, we are not CRMC No.267/2012 Page 8 of 9 unmindful of the view recorded in the decisions cited at the Bar that depending on the attendant facts, continuance of the criminal proceedings, after a compromise has been arrived at between the complainant and the accused, would amount to abuse of process of Court and an exercise in futility since the trial would be prolonged and ultimately, it may end in a decision which may be of no consequence to any of the parties."
10. Further, as the parties have arrived at a compromise, so there would be no chance of conviction in near future in case trial is held and concluded.
11. In view of the above, this petition stands allowed.
12. Consequently, FIR No.146/2004 under Section 420, 337, 109, 506 RPC as also Challan pending before the Court of learned CJM Doda arising out of afore said FIR No.146/2004, are quashed in view of compromise arrived at between the parties.
13. Copy of this order be sent to Court below for compliance.
(Sanjay Kumar Gupta) Judge Jammu 21.12.2018 Narinder CRMC No.267/2012 Page 9 of 9