Jammu & Kashmir High Court
Ashish Sharma And Others vs State And Anr. on 23 October, 2018
Equivalent citations: AIRONLINE 2018 J AND K 295
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRMC No.599/2018 & IA No.01/2018
Date of order:-23.10.2018
Ashish Sharma & ors. Vs. State and anr.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta
Appearing Counsel:
For the petitioner(s): Mr. Ashish Sharma, Advocate.
For the respondent(s) Mr. B. S. Salathia, Sr. Advocate with
Mr. Ratish Mahajan, Advocate.
i. Whether approved for
reporting in Press/Media : Yes/No
ii. Whether to be reported in
Digest/Journal : Yes/No
1. In this petition filed under Section 561-A Cr.P.C., petitioners seek quashing
of FIR No.176/2003 dated 13.06.2003, Challan No.07/2004 dated
17.01.2004, order dated 11.03.2004 and all criminal proceedings arising out
of the same, on the basis of compromise executed between the petitioners
and respondent No.2 to prevent abuse of process of law. Sanjay Kumar
(respondent No.2) is the complainant in FIR No.176/2003. Since
complainant and accused persons involved in the FIR No.176/2003 have
compromised, I propose to dispose of this petition.
2. This Court vide order dated 17.10.2018, directed the parties along with
their counsel to appear before the Registrar Judicial of this Court for
authenticity of compromise deed and for recording statements in respect
thereto.
CRMC No.599/2018 Page 1 of 10
3. Pursuant to the order dated 17.10.2018, Registrar Judicial has recorded the
statements of petitioners namely Ashish Sharma, Suraj Singh Jamwal,
Ashutosh Sharma; and that of complainant/respondent No.2 namely Sanjay
Kumar. Statements so recorded are placed on record and the same read as
under:-
"Statement of Ashish Sharma, Age 37 years; Occupation: Govt.
Employee; S/o Late Sh. Netar Dutt Sharma R/O House No.1-A, Ashok
Nagar, Satwari, Jammu on oath today i.e. 20.10.2018
That I (petitioner No.1) have entered into an agreement/compromise with
the respondent No.2 vide compromise deed dated 20.09.2018. By virtue of
said deed, I have settled my disputes with respondent No.2 amicably.
Statement of Suraj Singh Jamwal, Age 40 years; Occupation: Driver;
S/o Sh. Sukhdev Singh R/o House No.711-A, Ashok Nagar, Satwari,
Jammu on oath today i.e. 20.10.2018
That I (petitioner No.2) have entered into an agreement/compromise with
the respondent No.2 vide compromise deed dated 20.09.2018. By virtue of
said deed, I have settled my disputes with respondent No.2 amicably.
Statement of Ashutosh Sharma, Age: 40 years; Occupation: Driver;
S/o Sh. Madan Mohan Sharma R/o House No.120, Narwal Pain,
Jammu on oath today i.e. 20.10.2018.
That I (petitioner No.3) have entered into an agreement/compromise with
the respondent No.2 vide compromise deed dated 20.09.2018. By virtue of
said deed, I have settled my disputes with respondent No.2 amicably.
Statement of Sanjay Kumar (respondent No.2), Age:38 years;
Occupation: Painter; S/o Sh. Sham Lal R/o Nasi Basti, Satwari,
Jammu A/p Jourian, Tehsil Akhnoor, Jammu on oath today i.e.
20.10.2018.
CRMC No.599/2018 Page 2 of 10
That a small buffet took place and due to heat of the moment and the
influence exerted by the people present there, the issue turned into a storm
in a tea pot. That now, I have entered into a compromise with the petitioner
No.1 to 3 vide compromise deed dated 20.09.2018 out of my fee will and
volition. By virtue of said deed, I have settled my disputes amicably with
the petitioners. I do not want to pursue the proceeding arising out of the
Criminal Challan No.07/2004 dated 17.01.2004, pending before learned
Chief Judicial Magistrate, Jammu and I have no objection if the said
criminal challan and proceedings arising out of said challan are quashed by
this Hon'ble Court.
4. Further, statements of the petitioners and complainant/respondent No.2
have been verified by their respective counsel.
5. Bare perusal of the statements placed on record, it is evident that parties
have entered into a compromise whereby they have settled the matter and
also prayed for allowing the instant petition.
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 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
CRMC No.599/2018 Page 3 of 10
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, 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
CRMC No.599/2018 Page 4 of 10
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 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
CRMC No.599/2018 Page 5 of 10
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 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
CRMC No.599/2018 Page 6 of 10
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 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
CRMC No.599/2018 Page 7 of 10
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:
"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 CRMC No.599/2018 Page 8 of 10 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 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 complainant party has effected compromise with accused person(s), in the said FIR, so there would be no chance of conviction in near future in case trial is held and concluded. In criminal cases, it is only complainant/victim, who has authority to effect compromise.
11. When the court is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are mindful that most of the Courts in India are under heavy pressure of workload. If the court is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate the proceedings. In present case, it is definitely certain that due to mutual compromise arrived at between complainant party and the accused persons, there is no chance of conviction of accused persons in the criminal case, which has been lodged by complainant.
CRMC No.599/2018 Page 9 of 1012. In view of what has been discussed above and the law cited, the petition is allowed.
13. Consequently, FIR No.176/2003 dated 13.06.2003, Challan No.07/2004 dated 17.01.2004, order dated 11.03.2004 and all criminal proceedings initiated thereafter, are quashed in view of compromise arrived at between the parties.
14. Copy of this order be sent to the Court below for compliance.
( Sanjay Kumar Gupta ) Judge Jammu 23.10.2018 Narinder CRMC No.599/2018 Page 10 of 10