C482/330/2009 of ANWAR Vs STATE AND ORS on 30 December 2013

IN THE HIGH COURT OF UTTARAKHAND AT NAINITALRestoration Application MCRC No. 228 of 2013

In

-Criminal Misc. Application (C482) No. 330 of 2009

Anwar

…………. Applicant

versus

State of Uttarakhand & another

…………. Respondents

Mr. Lok Pal Singh, Advocate for the applicant. Mr. S.S. Adhikari, Brief Holder for the State / respondent no. 1. Mr. Pramod Tiwari, Advocate for respondent no. 2.

U.C. Dhyani, J. (oral)[

Heard on Restoration Application MCRC No.

228 of 2013.

The application under Section 482 of Cr.P.C. was dismissed for want of prosecution on 18.12.2013, as no one turned up on behalf of the applicant on the date fixed.

Having considered the averments made in the affidavit filed in support of restoration application and, being satisfied with the sufficiency of the reasons thus furnished, the restoration application (MCRC No. 228 of 2013) is allowed.

The petition under Section 482 of Cr.P.C. is restored to its original number.

2) Also heard on Criminal Misc. Application (C-482) No. 330 of 2009.

3) The applicant, by means of present application / petition under Section 482 of Cr.P.C., seeks to quash the charge-sheet dated 24.05.2008 and cognizance order dated 20.06.2008, as also the entire proceedings of criminal case no. 1220 of 2008 (new no. 55 of 2008), State vs Anwar, under Sections 211 and 506 of IPC, pending in the court of Chief Judicial Magistrate, Tehri Garhwal.

4) Informant (respondent no. 2 herein) lodged an FIR against the accused (applicant herein) on 21.02.2008, at police station, Narendra Nagar, for the offences punishable under Sections 211 and 506 of IPC. After the investigation, a charge-sheet was submitted against the accused for the selfsame offences. Cognizance was taken on said charge-sheet, and the accused was summoned to face the trial. Aggrieved against the same, present application under Section 482 of Cr.P.C. was filed.

5) Applicant has tendered unconditional apology to the respondent no. 2, which unconditional apology is conveyed to learned counsel for respondent no. 2. Learned counsel for respondent no. 2 stated that after the applicant has tendered unconditional apology, respondent no. 2 has no grievance left and he has no objection if the proceedings of the criminal case no. 1220 of 2008, State vs Anwar, are quashed.

6) Offence punishable under Section 211 of IPC does not find mention in the scheme of things under Section 320 of Cr.P.C. Offence punishable under Section 506 of IPC is, however, a compoundable offence. When the victim has compounded such offence against the accused, criminal proceedings against the accused-applicant for the said offence should be quashed.

7) The next question which is left for consideration of this Court is -whether the complainant-respondent no. 2 should be permitted to compound the offence against the applicant in respect of offence punishable under Section 211 of IPC or not?

8) Since complainant-respondent no.2 has buried his differences amicably with the accused-applicants, therefore, the complainant-respondent no. 2 should be permitted to compound such offence against the accused-applicant in the interest of society as well as in the interest of justice keeping in view the pronouncement of Hon’ble Apex Court inGian Singh vs. State of Punjab and another, (2013) 1 SCC (Cri) 160, wherein Hon’ble Supreme Court has observed that the High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak. Relevant paragraph of Gian Singh’s case (supra) is reproduced here-in-under for ready reference:

“The position that emerges from the above discussion can be summarized thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with

no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint of F.I.R. may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statues like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceedings or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.”

9) Application under Section 482 of Cr.P.C. is, therefore, allowed. Charge-sheet dated 24.05.2008 and cognizance order dated 20.06.2008, as also the entire proceedings of criminal case no. 1220 of 2008 (new no. 58 of 2008), State vs Anwar, under Sections 211 and 506 of IPC, pending in the court of Chief Judicial Magistrate, Tehri Garhwal are hereby quashed on the basis of out-of- court settlement arrived at between the parties.

(U.C. Dhyani, J.)

Dt. December 30, 2013. Negi