Himachal Pradesh High Court
Prakasho Devi vs Prakasho Devi & on 16 September, 2021
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 16th DAY OF SEPTEMBER, 2021
.
BEFORE
HON'BLE MR. JUSTICE ANOOP CHITKARA
CRIMINAL MISC. PETITION (MAIN) U/S 482 CRPC No. 308
of 2021
Between:-
1. PRAKASHO DEVI
W/O SH. TILAK RAJ,
2. GURNAM SINGH @ RINKU
S/O SH. JAI GOPAL,
3. NARESH KUMAR
S/O SH. TILAK RAJ
4. HEMLATA W/O SH.
NARESH KUMAR
5. NEETA DEVI
D/O SH. TILAK RAJ,
ALL R/O VILL. NAGNOULI,
TEHSIL HAROLI,
DISTRICT UNA, H.P.
....PETITIONERS.
(BY SH. ASHWANI KAUNDAL,
ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH SECRETARY (HOME),
SHIMLA.
2. SH. RANJEET KUMAR
S/O SH. HARVILAS, R/O VILL.
NAGNOULI, TEHSIL HAROLI,
DISTRICT UNA, H.P. THROUGH
ITS NEXT FRIEND AND WIFE
SMT. SHWETA W/O SHRI RANJEET
KUMAR S/O SH. HARVILAS.
3. SMT. SHWETA W/O
SH. RANJEET KUMAR
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2
R/O VILL. NAGNOULI,
TEHSIL HAROLI,
DISTRICT UNA, H.P.
.
.....RESPONDENTS.
(MR. NAND LAL THAKUR,
ADDITIONAL ADVOCATE GENERAL
WITH MR. KUNAL THAKUR, DEPUTY
ADVOCATE GENERAL &
MR. SUNNY DHATWALIA,
ASSISTANT ADVOCATE GENERAL
FOR R-1
MR. RAHUL THAKUR, ADVOCATE
FOR R-3).
This petition coming on for admission this day, the Court passed
the following:
ORDER
FIR NUMBER 281/17 dated 13.09.2017, Police Station Haroli, District Una under Sections 147, 149, 341, 323, 325, 506 IPC TRIAL COURT CASE 344/2017, titled State vs. Prakasho Devi & NO. Others, pending before learned Chief Judicial Magistrate, Una, District Una, H.P. The accused-petitioners have come up before this Court by filing the present petition under Section 482 Cr.P.C., for quashing of the above captioned FIR.
2. On 13th September, 2017, the complainant along with his wife is coming from the house of his relative. At about 7.30 p.m., when they were at a distance of 100 meters from their house, the accused-petitioners have restrained them to proceed further and ::: Downloaded on - 31/01/2022 23:05:07 :::CIS 3 given beatings to them with stick (Danda). The complainant further alleged that they have already registered a case against the accused .
persons, due to which the accused persons are inimical to them and sought action. This statement was recorded and signed by the informant. Based on this information the FIR captioned above was registered in the police Station.
3. After completion of the investigation, the officer incharge of Police Station launched prosecution against the accused by filing report under Section 173(2) CrPC.
4. The trial is pending before learned Chief Judicial Magistrate, Una. Now the accused and the respondents entered into an out of Court compromise, a copy whereof is Annexure P-2.
5. After this the accused have come up before this Court by filing the present petition under Section 482 Cr.P.C. for quashing of the above captioned FIR and all consequential proceedings.
6. Today, injured Shweta, had appeared in this Court through video conferencing and made statement on oath that they have compromised the entire matter without any coercion, duress and pressure vide compromise deed Annexure P-2.
7. I have heard Mr. Ashwani Kaundal, Advocate for the petitioners, Mr. Nand Lal Thakur, learned Additional Advocate General for the respondent-State and Mr. Rahul Thakur, Advocate for respondent No.3.
::: Downloaded on - 31/01/2022 23:05:07 :::CIS 48. Mr. Ashwani Kaundal, Advocate, on instructions, submits that the charges in this case have been framed.
.
9. Mr. Nand Lal Thakur, learned Additional Advocate General has opposed the compromise and stated that even if the statements of the parties have been recorded well before this Court arrived at a conclusion that whether to quash the FIR or not, still on this ground alone, the FIR cannot be quashed.
13. I have gone through the pleadings in detail. The prayer clause of the petition reads as follows:-
It is, therefore, respectfully prayed that this petition may very kindly be allowed and FIR No.281/2017, dated 13.09.2017, under Sections 147, 149, 341, 323, 325,506 IPC registered at P.S. Haroli, District Una, H.P. may kindly be quashed and set aside, consequently quashing consequent proceedings pending before Ld. Chief Judicial Magistrate, Una, Distt. Una, H.P., in case No.344/2017 (CNR No.HPUN020090392017) titled as State vs Prakasho Devi & Others may very kindly be quashed in the interest of law and Justice."
14. Although the petitioner is seeking quashing of consequential proceedings, but the copies of the charges have not been placed on record. After the launch of the prosecution, once the Court, after taking cognizance, framed charges, then the FIR and the police report under Section 173(2) comes to an end and it is substituted by the order framing of charges as well as the charge. In case any accused is aggrieved by framing of charge, the remedy ::: Downloaded on - 31/01/2022 23:05:07 :::CIS 5 available to such person is to challenge the order directing framing of charges as well as the charge by annexing its copy. In the present .
petition a cryptic prayer has been made to quash the FIR and consequential proceedings, but the copy of the order framing charges and copy of charges itself have not been annexed with the petition.
15. In Reena Devi and others Versus State of Himachal Pradesh, Cr.MMO No. 271 of 2019, this Court has held as under:-
5. The respondent, through Superintendent of Police, Hamirpur, HP, filed a reply affidavit to this petition. In Paragraph No.7 of the response, he states that on 19.3.2019, the trial Court, based upon the police report, have already framed charges against the accused. Shri Nand Lal Thakur, Addl. Advocate General, appearing for the State of HP contended that the Petitioners 2 to 4, who are accused and against whom the charges stand framed, have neither challenged the order framing the charges nor the charges as spelled out in the Form No. 32 of the Second Schedule of CrPC, or placed on record the copies of these orders, as such the petition is not maintainable. His second contention is that once charges have been framed, then even for quashing of the same, on any ground, be it compromise or on merits, the legal recourse available is by filing a Criminal Revision petition under Section 397/401 CrPC and not by filing a petition under section 482 CrPC.
6. Adverting to the first contention, the present petition was filed on 24.4.2019, i.e., after the framing of charges on 19.03.2019. In the first Paragraph of the petition, the ::: Downloaded on - 31/01/2022 23:05:07 :::CIS 6 averments are for quashing of FIR and for setting aside of consequent proceedings, and the same is the prayer of the .
petitioners. Since the charges have been framed then to cull the criminal proceedings, such an order needs to be set aside. The Petitioners neither placed with the petition the order framing charges nor the Form No. 32 of the Second Schedule of CrPC; as such the Petition is defective and not maintainable.
7. To answer the second contention of Ld. Additional Advocate General, a survey of fundamental provisions of CrPC, from the setting into motion of the criminal machinery and its final termination, is required. The proposition of law that emerges is which remedy is available to the accused persons, who want to challenge the criminal charges framed against them, whether it is by filing a Criminal Revision Petition, under Ss. 397, 401 CrPC or 482 CrPC. In the present case, the scope of Article 227 of the Constitution of India is not under consideration.
8. Before discussing this proposition, it is apposite to state that compoundable criminal cases can be compromised at any stage. The best illustration would be the case involving an offence, which is compoundable under Section 320 of the CrPC. The Court can permit compounding of such matter at any stage, be it in Trial, Appeal or Revision. Even post- conviction, such an offence is compoundable under Section 320 CrPC. However, in those cases, not listed under the schedule of S. 320 CrPC, a petition under section 482 CrPC would be maintainable for quashing of all proceedings, based on the compromise or otherwise, as the case may be. The reason is the absence of any remedy available under the CrPC.
::: Downloaded on - 31/01/2022 23:05:07 :::CIS 79. Before arriving at any conclusion to ascertain the appropriate remedy for an accused, against whom, a notice of .
accusation has been issued, or the charge has been framed and who wants to challenge the same, the tour of the following stages will give the required exposure.
Stage-1 The most prominent and the earliest provision which ignites the engine of criminal law and brings it into motion is the registration of FIR, under Section 154 of the CrPC.
Needless to say, this provision confines to cognizable offences. After the investigation, if in the opinion of the Station House Officer, a case for the prosecution is made out, then he files a report under Section 173 of the CrPC. Any person arraigned as an accused in such FIR can seek its quashing from High Court having jurisdiction, by filing a petition under section 482 CrPC.
Stage-2 Section 190 of the CrPC, envisages three situations, upon which the Magistrate can take cognizance of offence, namely, (a) Upon receiving a complaint of facts which constitutes such offence; (b) Upon a Police Report of such facts; (c) Upon information received from any person other than a Police Officer or upon his own knowledge that such an offence has been committed. Exercising powers under Section 204 of CrPC, the Magistrate taking cognizance of offences, may proceed against an accused, if he believes in the existence of sufficient grounds for proceeding. Any person who has been arraigned as an accused and is aggrieved either by registration of FIR or filing of charge-sheet or taking cognizance or issuance of the process can seek adjudication under Section 482 of the CrPC. Order taking cognizance can also be challenged by filing a revision petition, in the Sessions ::: Downloaded on - 31/01/2022 23:05:07 :::CIS 8 Court or High Court. There will be a situation where after the filing of the petition for quashing of FIR, in the meantime, the .
charge-sheet is filed; the law is no more res Integra that in all those cases, FIR and all consequential proceedings can be quashed. An accused cannot approach a Sessions Court till this stage because the only available statutory remedy is by invoking inherent powers of High Court under Section 482 of the CrPC.
Stage-3 The next stage in criminal proceedings is similar to transformation of a caterpillar emerging as a butterfly and it begins on the framing of charges under Sections 211, and 228 of CrPC or on issuance of notice of accusation under Section 251 of the CrPC. If not challenged, it shall culminate under section 229, 241 or 248 of the CrPC only by a judgment of acquittal or conviction. Once charges stand framed or the notice of accusation stands issued, as the case may be, then the appropriate remedy to challenge the same is only by filing Criminal Revision Petition in the Court where it lies and not by filing a petition under section 482 CrPC.
Stage-4 The next stage is post conviction or acquittal. A judgment of conviction can only be challenged under Chapter-
29 of the CrPC (Sections 372 to 394). During the pendency of such an appeal, the parties may file an application for compounding of the offences but such applications in appeal, would be within and not without. A convict cannot bye-pass Chapter 29 and instead of filing a statutory appeal before the First Appellate Court cannot straightaway resort to Sections 397, 401 and 482 of the CrPC.
Stage-5 The next stage is challenging the dismissal of the appeals of the convicts and that can be done by approaching ::: Downloaded on - 31/01/2022 23:05:07 :::CIS 9 the Courts under its Revisionary Jurisdiction, under section 397-401 CrPC. During the pendency of such Revision .
Petitions, if parties compound the offences, then the process is similar to that in the appeals.
10. The other stages, if any, would also tread the similar path and cross the similar obstacles.
11. The above survey leads to an irresistible conclusion that once charges have been framed, then the remedy is not to file petition under Section 482 of the CrPC but to invoke the revisionary jurisdiction under section 397 & 401 CrPC. However, in the present petition, what is sought to be quashed is FIR and all consequential proceedings, based upon the out of court compromise entered between the victim and the accused and the challenge is not on the merits of charges or accusations.
12. Thus the question that needs an answer is as follows, What remedy is available to an accused who has compromised the offence after the charges have been framed or notice of accusation issued and before the pronouncement of the final judgment by the trial court?
13. As already discussed in Stage 2, charges and notices of accusation can be challenged on merits, only by invoking revisionary jurisdiction, within the prescribed period of limitation. However, if parties compound the offence in the interregnum period of post charge pre judgment stage, than the matter for consideration before the Court would not be to assess the merits of charge but a finding on the compromise. After the compounding, the continuation of criminal proceedings would amount to abuse of process of law resulting ::: Downloaded on - 31/01/2022 23:05:07 :::CIS 10 in the miscarriage of Justice. Thus, the charges or the notice of accusations can also be quashed by filing a petition under .
section 482 CrPC, invoking the inherent jurisdiction of the High Court.
14. Now, adverting to the averments made in the present petition, the Petitioners have carefully worded it as "quashing the FIR and all consequential proceedings," but such nomenclature would not mean quashing of charges. Moreover, although the quashing petition was filed after the framing of charges, but the petitioner did not place on the record even the copy of the order of framing of the charge. Therefore, this petition is defective.
16. Given above, this petition, in the present form, is defective and cannot be entertained. Consequently, the petition is dismissed with liberty reserved to file afresh in accordance with law, if so desires.
17. It is clarified that the dismissal of this petition on technical grounds shall not come in the way for filing new petition. It is also clarified that it shall be open for the petitioner to refer to the documents annexed with this petition without filing it afresh and instead of calling the witness again, it shall be open for the petitioner to annex the copies of the statement, recorded in the present case.
Petition dismissed.
(Anoop Chitkara)
September 16, 2021(ps) Judge
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