Uttarakhand High Court
Manish Chauhan And Others ... vs State Of Uttarakhand And Others on 11 September, 2018
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (Criminal) No. 1719 of 2018
With
Compounding Application (CLMA No. 14053 of 2018)
Manish Chauhan and others ...Petitioners
Vs.
State of Uttarakhand and others ..Respondents
Present: Mr. Narendra Bali, Advocate for the petitioners.
Mr. P.S. Bohra, Assistant Government Advocate with Mrs. Preeta
Bhatt, Brief Holder for the State of Uttarakhand/respondent nos. 1
and 2.
Mr. B.S. Bhandari, Advocate for the private respondents.
Hon'ble Sharad Kumar Sharma, J.
The petitioners 1 to 6 have appeared in person, duly identified by their counsel, Mr. Narendra Bali. Similarly, respondents 3 to 5 are present in person and they are too identified by their counsel, Mr. B.S. Bhandari. The precise case, which is argued by the learned counsel for the parties, is that an FIR dated 05.09.2018 was registered as FIR No. 349 of 2018 for the offences punishable under Sections 365, 504, 34 of IPC at Police Station Kankhal, District Haridwar.
2. In precise, the averments as narrated in the FIR was that the accused/petitioners had misbehaved and had abducted Manish Kumar and Rahul Katiyar (respondent nos. 4 and 5 respectively), for which the said FIR has been lodged and they are being prosecuted for the same. It is submitted that the dispute, which has arisen was on account of the students' election, which was being held in the institution, in which the petitioners and the respondents both were studying in their B.Tech course and were supporting their faction of students. It is highly deplorable that the young students, who are supposed to concentrate on their studies, are indulging themselves in such an act of abduction, which is unlike to a student, particularly belonging to B.Tech course. Since the parties have now entered into a settlement, it would not be appropriate to force them to face the acrimony of trial, but simultaneously, this Court cannot be oblivious of the fact that such type of activity by students, particularly, the petitioners herein, cannot be permitted to carry on the same in future 2 as it would be creating a wrong precedent for the other students in the forthcoming election processes. Participating in election is not barred; but they should not loose sight of the fact that their participation has to be in a sound manner and without disturbing the life and liberty of other persons or other co-students.
3. This Court, before compounding the offence, warns the petitioners as well as the respondents that in an event, if such type of incident happens in future, they would be severely dealt with in the judicial proceedings to be held by the Courts of law. Since their careers are in stake, this Court is refraining itself for directing the Police Authorities to take them in custody. To this, the Government Advocate has raised an objection that though there are judicial precedents rendered by the Hon'ble Apex Court that the offences as narrated in the FIR are not compoundable under Section 320 Cr.P.C., but he also submits that looking to the gravity of allegations, the Compounding Application ought not be considered and deserves to be rejected.
4. Looking to the aforesaid contentions, the argument of the learned counsel for the respondent may not be accepted, particularly, so far it relates to the present case where the career of the students is involved. Be that as it may. The pronouncements as rendered in B.S. Joshi and Nikhil Merchant's case, it has been observed that once a party have settled their dispute and they do not want to get the accused prosecuted in the criminal proceedings, the entire trial would be a futile exercise and forcing upon the accused to face the trial.
5. The Hon'ble Apex Court in the judgment 'Nikhil Merchant vs. Central Bureau of Investigation and Another' reported in 2008(9) SCC 677, has held as under:
"8. Apart from the said decision, reliance was also placed on another decision of this Court in the case of B.S. Joshi and Ors. Vs. State of Haryana & Anr., [2003(4) SCC 675] wherein while dealing with the proceedings under Sections 498-A and 406 Indian Penal Code involving matrimonial disputes and offences, this Court held that even though the provisions of Section 320 of the Code of Criminal Procedure would not apply to such offences, which are not compoundable it did not limit or affect the 3 powers under Section 482 and the powers conferred on the High Courts and the Supreme Court under Articles 226 and 136 of the Constitution of India. Referring to the decision of this Court in State of Haryana vs Bhajan Lal, [1992 Suppl. (1) SCC 335] this Court observed that the categories indicated in the said case which warranted exercise of power under Section 482 CrPC were only illustrative and not exhaustive. This Court ultimately held that the High Court in exercise of its inherent powers can quash criminal proceedings or a FIR or complaint and Section 320 CrPC does not limit or affect the power of the High Court under Section 482 of the Code.
9. After considering the said decision in the light of the submissions made on behalf of the respective parties, the High Court took the view that in the Duncans Agro case (supra) this Court was considering the situation involving Section 420 IPC which was compoundable under Section 320(2) CrPC, while in the instant case, the charge sheet was also under Sections 467, 468, 471-A IPC along with the provisions of the Prevention of Corruption Act, which were non- compoundable. The High Court, therefore, held that neither of the said two cases would have application to the facts of this case and rejected the appellant's prayer for discharge from the criminal cases.
29. Despite the ingredients and the factual content of an offence of cheating punishable under Section 420 IPC, the same has been made compoundable under Sub-section (2) of Section 320 Cr.P.C. with the leave of the Court. Of course, forgery has not been included as one of the compoundable offences, but it is in such cases that the principle enunciated in B.S. Joshi's case (supra) becomes relevant.
31. On an overall view of the facts as indicated hereinabove and keeping in mind the decision of this Court in B.S. Joshi's case (supra) and the compromise arrived at between the Company and the Bank as also clause 11 of the consent terms filed in the suit filed by the Bank, we are satisfied that this is a fit case where technicality should not be allowed to stand in the way in the quashing of the criminal proceedings, since, in our view, the continuance of the same after the compromise arrived at between the parties would be a futile exercise."
6. The judgment of Nikhil Merchant (supra) strongly relies upon the judgment 'B.S. Joshi & Others vs. State of Haryana & Another' reported in (2003) 4 Supreme Court Cases 675. Same issue was raised before the Hon'ble Apex Court and the Hon'ble Apex Court in paragraph nos. 6, 8, 10, 11 & 15 held as under:
4"6. In Pepsi Food Ltd. & Anr. v. Special Judicial Magistrate & Ors. [(1998) 5 SCC 749], this Court with reference to Bhajan Lal's case observed that the guidelines laid therein as to where the court will exercise jurisdiction under Section 482 of the Code could not be inflexible or laying rigid formulae to be followed by the courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. It is well settled that these powers have no limits. Of course, where there is more power, it becomes necessary to exercise utmost care and caution while invoking such powers.
8. It is, thus, clear that Madhu Limaye's case does not lay down any general proposition limiting power of quashing the criminal proceedings or FIR or complaint as vested in Section 482 of the Code or extra ordinary power under Article 226 of the Constitution of India. We are, therefore, of the view that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, Section 320 would not be a bar to the exercise of power of quashing. It is, however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power.
10. In State of Karnataka v. L. Muniswamy & Ors. [(1977) 2 SCC 699], considering th e scope of inherent power of quashing under Section 482, this Court held that in the exercise of this wholesome power, the High Court is entitled to quash proceedings if it comes to the conclusion that ends of justice so require. It was ob served that in a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice and that the ends of justice are higher than the ends of mere law though justice had got to be administered according to laws made by the legislature. This Court said that the compelling necessity for making these observations is that without a proper realization of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction. On facts, it was also noticed that there was no reasonable likelihood of the accused being convicted of the offence. What would happen to the trial of the case where the wife does not support the imputations made in the FIR of the type in question. As earlier noticed, now she has filed an affidavit that the FIR was registered at her instance due to temperamental differences and implied imputations. There may be many reasons for not supporting the imputations. It may be either for the reason that she has resolved disputes with her husband and his other family 5 members and as a result thereof she has again started living with her husband with whom she earlier had differences or she has willingly parted company and is living happily on her own or has married someone else on earlier marriage having been dissolved by divorce on consent of parties or fails to support the prosecution on some other similar grounds. In such eventuality, there would almost be no chance of conviction. Would it then be proper to decline to exercise power of quashing on the ground that it would be permitting the parties to compound non-compoundable offences. Answer clearly has to be in 'negative'. It would, however, be a different matter if the High Court on facts declines the prayer for quashing for any valid reasons including lack of bona fides.
11. In Madhavrao Jiwajirao Scindia & Ors. v. Sambhajirao Chandrojirao Angre & Ors. [(1988) 1 SCC 692], it was held that while exercising inherent power of quashing under Section 482, it is for the High Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. Where, in the opinion of the Court, chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may, while taking into consideration the special facts of a case, also quash the proceedings.
15. In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code."
7. The Composition Application (CLMA No. 14053 of 2018) which has been duly signed by both the parties, the offences as narrated in the FIR No. 0349 of 2018 under Sections 465, 504, 34 of IPC at Police Station, Kankhal, District Haridwar is hereby quashed.
8. Accordingly, Compounding Application stands allowed. Prayer as made therein is granted.
(Sharad Kumar Sharma, J.) 11.09.2018 Mahinder/