Sikkim High Court
Rajendra Rai And Ors vs State Of Sikkim on 19 May, 2017
Author: Satish K. Agnihotri
Bench: Chief Justice
1
Crl. M.C. No. 06 of 2017
Rajendra Rai & Ors. Vs. State of Sikkim
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Jurisdiction)
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S.B.: HON'BLE MR. JUSTICE SATISH K. AGNIHOTRI, CJ.
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Crl. M.C. No. 06 of 2017
1. Shri Rajendra Rai,
Son of Mon Bdr. Rai,
R/o Rezay Busty,
Bhusuk, East Sikkim.
2. Smt. Sanju Chettri (Tamang),
W/o Shri Rajen Chettri,
R/o Rezay Busty,
Bhusuk, East Sikkim.
3. Shri Rajen Chettri,
Son of Nar Bdr. Chettri,
R/o Rezay Busty,
Bhusuk, East Sikkim.
4. Shri Nar Bdr. Chettri,
Son of Lt. Dil Bdr. Chettri,
R/o Rezay Busty,
Bhusuk, East Sikkim.
... Petitioners
versus
State of Sikkim
Through:
The Ld. Public Prosecutor,
High Court of Sikkim,
Gangtok.
... Respondent
2
Crl. M.C. No. 06 of 2017
Rajendra Rai & Ors. Vs. State of Sikkim
Application under Section 482 read with Section 320
of the Code of Criminal Procedure, 1973.
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Appearance:
Mr. S.P. Bhutia, Advocate for the Petitioners.
Mr. J.B. Pradhan, Public Prosecutor with Mr. Santosh
Kr. Chettri and Ms. Pollin Rai, Assistant Public
Prosecutors for the State.
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ORDER
(19.05.2017) Satish K. Agnihotri, CJ The instant petition is filed under provisions of Section 482 read with Section 320 of the Code of Criminal Procedure, 1973 seeking to quash the FIR No. 30/2014 and further pending trial in S.T. Case No. 22/2015 (State of Sikkim vs. Rajendra Rai) on the file of Court of Sessions Judge (East) at Gangtok, East Sikkim.
2. Petitioner No. 1, the accused, is the husband of one Smt. Kamala Chettri. Petitioner No. 2 is the sister-in-law, petitioner No. 3 is the brother-in-law and petitioner No. 4 is the father-in-law of petitioner No. 1/accused. As projected by the petitioners herein, the first petitioner was married to Smt. Kamala Chettri, daughter of the fourth petitioner. The first 3 Crl. M.C. No. 06 of 2017 Rajendra Rai & Ors. Vs. State of Sikkim petitioner and Smt. Kamala Chettri, living happily were blessed with three children. On the fateful day, i.e. on April 19, 2014, the first petitioner, in drunken condition, had gone to attend a marriage party in Village Nandok. The first petitioner created some nuisance, which was objected to by the wife (Mrs. Kamala Chettri). The first petitioner became furious and assaulted her. Petitioner No. 2 and petitioner No. 4, who happened to be present there, removed the wife and took her away to the nearby house of petitioner No. 3. The first petitioner followed his wife there and again assaulted Kamala Chettri. On intervention by other members, the first petitioner assaulted petitioners No. 3 and 4 with iron spear and caused severe injuries in the abdomen. This incident lead to filing of FIR on April 20, 2014 by petitioner No. 2, who happened to be the sister-in-law of the first petitioner/ accused. After investigation, a charge-sheet was filed to stand trial for an offence punishable under Section 307 IPC in the Court of Sessions Judge (East) at Gangtok in S.T. Case No. 22 of 2015.
3. All the petitioners, who are undisputedly close relatives, have reached to an agreement and executed terms of compromise on September 24, 2016, whereunder the following agreement was recorded: -
4Crl. M.C. No. 06 of 2017
Rajendra Rai & Ors. Vs. State of Sikkim "1. That the First Party No. 01 shall withdraw the F.I.R.
bearing No. 30/2014 dated 20/04/2014 lodged at Ranipool Police Station, East Sikkim.
2. That both the Parties shall maintain peace and harmony amongst each other.
3. That this present Compromise Deed is executed by the above named parties as per their terms and conditions and all the Parties will adhere to the terms and conditions of this present Compromise Deed and will not dispute the contents of this Compromise Deed in any manner whatsoever in future.
4. That after understanding the contents of the present Agreement/ Deed and its implications thereof and with their due desire without any threat, coercion or any undue influence, both the Parties have signed this Agreement/ Deed in their free state of mind and in full presence of mind and in future none of the Parties will dispute the contents of this present Agreement/ Deed.
5. That this Compromise Deed is made bonafide and in the interest of justice."
Consequently, this petition came to be filed by all the petitioners jointly to quash the FIR against the first petitioner pending trial.
4. Mr. S.P. Bhutia, learned counsel appearing for the petitioners, referring to the observations made by the Supreme Court in Narinder Singh and others vs. State of Punjab and another1 and Yogendra Yadav and others vs. State of Jharkhand and another2, submits that the accused is the son-in-law of the family and the assault was taken on a spur of
---------------------------------------- 1 (2014) 6 SCC 466 2 (2014) 9 SCC 653 5 Crl. M.C. No. 06 of 2017 Rajendra Rai & Ors. Vs. State of Sikkim moment. All the parties have agreed to live peacefully. Thus, this Court exercising its discretion may quash the proceedings.
5. On the contrary, Mr. J.B. Pradhan, learned Public Prosecutor submits that though the injuries are serious in nature, however, on investigation, it is reported that the injuries sustained were of simple nature. It is further submitted that stabbing made on stomach could have led to serious consequences and as such the first petitioner/ accused was charge-sheeted under Section 307 IPC. In the fact situation, wherein close relations are involved, quashing of proceedings may be considered.
6. Examining the factual aspects involved in this case and also considering the submissions made by the learned counsel appearing for the parties, it is not in dispute that the complainant, injured victims and the accused are close relations. The petitioner was inebriated, when he assaulted his own wife, which was objected to by the wife's brother, father and sister-in-law (other petitioners herein). The first petitioner reacted very strongly and caused stabbing in the abdomen of his father-in-law and brother-in-law. The police has reported that the injuries were simple in nature. Due to stabbing on 6 Crl. M.C. No. 06 of 2017 Rajendra Rai & Ors. Vs. State of Sikkim the abdomen which may lead to causing death, the petitioner was charge-sheeted under Section 307 IPC.
7. It is well settled principles of law that in the interest of justice to attain peace in the family and the society, the High Court is empowered to exercise its discretionary jurisdiction in favour of quashing the criminal trial.
8. In the case of Manoj Sharma vs. State & Ors3, wherein the question involved was as to whether a first information report under Sections 420/468/471/34/120-B IPC deserve to be quashed either under Section 482 of the Code of Criminal Procedure or under Article 226 of the Constitution, when the accused and the complainant have compromised and settled the matter between themselves. The Supreme Court speaking through Hon'ble Mr. Justice Altamas Kabir (as he then was), observed as under:
"8. In our view, the High Court's refusal to exercise its jurisdiction under Article 226 of the Constitution for quashing the criminal proceedings cannot be supported. The first information report, which had been lodged by the complainant indicates a dispute between the complainant and the accused which is of a private nature. It is no doubt true that the first information report was the basis of the investigation by the police authorities, but the dispute between the parties remained one of a personal nature. Once the complainant decided not to pursue the matter further, the High Court could have taken a more pragmatic view of the matter. We do not suggest
----------------------------------------- 3 (2008) 16 SCC 1 7 Crl. M.C. No. 06 of 2017 Rajendra Rai & Ors. Vs. State of Sikkim that while exercising its powers under Article 226 of the Constitution the High Court could not have refused to quash the first information report, but what we do say is that the matter could have been considered by the High Court with greater pragmatism in the facts of the case."
Concurring, Hon'ble Mr. Justice Markandey Katju (as he then was) observed as under:
"27. There can be no doubt that a case under Section302 IPC or other serious offences like those under Sections 395, 307 or 304-B cannot be compounded and hence proceedings in those provisions cannot be quashed by the High Court in exercise of its power under Section 482 CrPC or in writ jurisdiction on the basis of compromise. However, in some other cases (like those akin to a civil nature), the proceedings can be quashed by the High Court if the parties have come to an amicable settlement even though the provisions are not compoundable. ............................"
9. In yet another case, Sushil Suri vs. Central Bureau of Investigation & Anr.4, while examining the scope, ambit and extent of Section 482 of the Code, the Supreme Court held as under:-
"16. Section 482 CrPC itself envisages three circumstances under which the inherent jurisdiction may be exercised by the High Court, namely, (i) to give effect to an order under CrPC; (ii) to prevent an abuse of the process of court; and (iii) to otherwise secure the ends of justice. It is trite that although the power possessed by the High Court under the said provisions is very wide but it is not unbridled. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the Court exists. Nevertheless, it is neither feasible nor desirable to lay down any inflexible rule which would govern the exercise of inherent
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4 (2011) 5 SCC 708 8 Crl. M.C. No. 06 of 2017 Rajendra Rai & Ors. Vs. State of Sikkim jurisdiction of the Court. Yet, in numerous cases, this Court has laid down certain broad principles which may be borne in mind while exercising jurisdiction under Section 482 CrPC. Though it is emphasized that exercise of inherent powers would depend on the facts and circumstances of each case, but the common thread which runs through all the decisions on the subject is that the Court would be justified in invoking its inherent jurisdiction where the allegations made in the complaint or charge-sheet, as the case may be, taken at their face value and accepted in their entirety do not constitute the offence alleged."
10. In Rajiv Saxena & Ors. vs. State (NCT of Delhi) & Anr.5, the Supreme Court, recording the affidavit of wife who was the complainant in the FIR under provision of Sections 498A, 496 read with Section 34 of the IPC, quashed the charge and proceedings pending before the Magistrate.
11. A larger Bench of Supreme Court in Gian Singh vs. State of Punjab & Anr.6, examining the correctness of the decisions of the Supreme Court in B. S. Joshi & Ors. vs. State of Haryana & Anr.7, Nikhil Merchant vs. Central Bureau of Investigation & Anr.8 and Manoj Sharma vs. State & Ors. 3 in reference made in Gian Singh vs. State of Punjab & Anr. 9 settled the proposition of law as under:
---------------------------------------- 5 (2012) 5 SCC 627 6 (2012) 10 SCC 303 7 (2003) 4 SCC 675 8 (2008) 9 SCC 677 9 (2010) 15 SCC 118 9 Crl. M.C. No. 06 of 2017 Rajendra Rai & Ors. Vs. State of Sikkim "57. 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 end of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment.
58. 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 so as in its opinion, continuation of criminal proceedings 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. .................."
12. Subsequently, in Ashok Sadarangani & Anr. vs. Union of India & Ors.10, referring to earlier decision rendered by the Supreme Court, the Supreme Court observed as under:
"24. Having carefully considered the facts and circumstances of the case, as 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 views that had been taken in Nikhil Merchant case or Manoj Sharma case or the several decisions that have come thereafter. It is, however, no coincidence that the golden thread which runs through all the decisions cited, indicates that continuance of a criminal
---------------------------------- 10 (2012) 11 SCC 321 10 Crl. M.C. No. 06 of 2017 Rajendra Rai & Ors. Vs. State of Sikkim proceeding after a compromise has been arrived at between the complainant and the accused, would amount to abuse of the process of court and an exercise in futility, since the trial could be prolonged and ultimate, may conclude in a decision which may be of any consequence to any of the other parties."
13. In Yogendra Yadav2, the appellants were charge- sheeted under Sections 341, 323, 324, 504 and 307 read with Section 34 of the IPC. However, having regard to the compromise entered by the complainant and the accused persons, the Supreme Court held as under:
"4. Now, the question before this Court is whether this Court can compound the offences under Sections 326 and 307 IPC which are non-compoundable? Needless to say that offences which are non- compoundable cannot be compoundable 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 Punjab :
(2012) 10 SCC 303). 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 more 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 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." 11 Crl. M.C. No. 06 of 2017
Rajendra Rai & Ors. Vs. State of Sikkim
14. Applying the well-settled proposition of law, as analyzed hereinabove to the facts of the case wherein the close relationship of the complainant, accused and victims is established, I am of the considered opinion that this is a fit case wherein the discretion may be exercised to quash the proceedings pending in the trial court.
15. Resultantly, FIR bearing No. 30/2014 dated April 20, 2014 and the consequential proceedings in S.T. Case No. 22 of 2015 (State of Sikkim vs. Rajendra Rai) pending on the file of the Court of the Sessions Judge (East) at Gangtok, East Sikkim, are quashed.
16. Petition is allowed.
Chief Justice
19.05.2017
Approved for Reporting : Yes/No.
jk Internet : Yes/No.