CRMMO/589/2018 of NIRMAL SINGH Vs STATE OF HP on 31 December 2018

IN THE HIGH COURT OF HIMACHAL PRADESH,SHIMLA

Cr. MMO No. 589 of 2018.

Date of decision: 31.12.2018.

Nirmal Singh

…..Petitioner.

Versus

State of Himachal Pradesh & Others ….. Respondents.

Coram

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.Whether approved for reporting?[1 No]

For the Petitioner :Mr. Rajesh Kumar Parmar, Advocate.

For the Respondents :Mr.Vinod Thakur, AdditionalAdvocate GeneralwithMr.Bhupinder Thakur, DeputyAdvocate General and Mr. RamLal Thakur, Assistant AdvocateGeneral, for respondent No.1.

Mr.BhawaniPratapSingh,Advocate, for respondents No.2and 3.

Tarlok Singh Chauhan, Judge(Oral).

This petition under Section 482 of the Code ofCriminal Procedure (for short ‘Code’) has been preferred by the 1Whether the reporters of the local papers may be allowed to see theJudgment?YesJudgment?Yes petitioner for quashing of FIR No.45/2015 dated 09.03.2015,registered at Police Station, Baddi, under Sections, 336, 337,338, 201 IPC and under Section 30 of Arms Act, 1959,consequential proceedings and challan.

2. Today, the petitioner and respondents No.2 and 3 arepresent in person in the Court and identified as such by theirrespective counsel(s). It is stated by the learned counsel for theparties that the parties have amicably settled the matter, as percompromise deed Annexure P-2, placed on the file and now, thecomplainant party does not want to proceed with the caseagainst the petitioner, being relative and family members, andin order to maintain cordial relations in future. It is not indispute that the FIR, in question, came to be registered againstpetitioner at the instance of complainant/respondent No.2.

3. The petitioner states that he is not interested inkeeping the arm/gun and he may be permitted to sell the sameand his licence may be cancelled. His statement is taken onrecord. The petitioner is permitted to sell the gun within 30days from today i.e. 31.01.2019 and consequently his licence becancelled by the authorities concerned.

4. The moot question is whether the Court in such likecases can quash the proceedings on the basis of the compromise so entered into between the parties. The law onthis subject has been summed up in a judgment of the Hon’ble Court in Narinder Singh & Ors. v. State of Punjab & Anr. JT

2014 (4) SC 573, wherein it was held as under:- “(I) Power conferred under Section 482 of the Codeis to be distinguished from the power which lies inthe Court to compound the offences under Section320 of the Code. No doubt, under Section 482 of theCode, the High Court has inherent power to quashthe criminal proceedings even in those cases whichare not compoundable, where the parties havesettled the matter between themselves. However,this power is to be exercised sparingly and withcaution.

(II) When the parties have reached the settlementand on that basis petition for quashing the criminalproceedings is filed, the guiding factor in such caseswould be to secure:

(i) ends of justice, or

(ii) to prevent abuse of the process of any Court.

While exercising the power the High Court is to form an opinion on either of the aforesaid twoobjectives.

(III)Such a power is not be exercised in thoseprosecutions which involve heinous and seriousoffences of mental depravity or offences like murder,rape, dacoity, etc. Such offences are not private innature and have a serious impact on society.Similarly, for offences alleged to have been

committed under special statute like the Preventionof Corruption Act or the offences committed byPublic Servants while working in that capacity arenot to be quashed merely on the basis ofcompromise between the victim and the offender. (IV)On the other, those criminal cases havingoverwhelmingly and pre-dominantly civil character,particularly those arising out of commercialtransactions or arising out of matrimonialrelationship or family disputes should be quashedwhen the parties have resolved their entire disputesamong themselves.

(V)While exercising its powers, the High Court is toexamine as to whether the possibility of conviction isremote and bleak and continuation of criminal caseswould put the accused to great oppression andprejudice and extreme injustice would be caused tohim by not quashing the criminal cases.

(VI)Offences under Section 307 IPC would fall in thecategory of heinous and serious offences andtherefore is to be generally treated as crime againstthe society and not against the individual alone.However, the High Court would not rest its decisionmerely because there is a mention of Section 307IPC in the FIR or the charge is framed under thisprovision. It would be open to the High Court toexamine as to whether incorporation of Section 307IPC is there for the sake of it or the prosecution hascollected sufficient evidence, which if proved, wouldlead to proving the charge under Section 307 IPC.For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether suchinjury is inflicted on the vital/delegate parts of thebody, nature of weapons used etc. Medical report inrespect of injuries suffered by the victim cangenerally be the guiding factor. On the basis of thisprima facie analysis, the High Court can examine asto whether there is a strong possibility of convictionor the chances of conviction are remote and bleak. Inthe former case it can refuse to accept thesettlement and quash the criminal proceedingswhereas in the later case it would be permissible forthe High Court to accept the plea compounding theoffence based on complete settlement between theparties. At this stage, the Court can also be swayedby the fact that the settlement between the partiesis going to result in harmony between them whichmay improve their future relationship.

(VII) While deciding whether to exercise its powerunder Section 482 of the Code or not, timings ofsettlement play a crucial role. Those cases where thesettlement is arrived at immediately after thealleged commission of offence and the matter is stillunder investigation, the High Court may be liberal inaccepting the settlement to quash the criminalproceedings/investigation. It is because of the reasonthat at this stage the investigation is still on andeven the charge sheet has not been filed. Likewise,those cases where the charge is framed but theevidence is yet to start or the evidence is still atinfancy stage, the High Court can show benevolencein exercising its powers favourably, but after prima

facie assessment of the circumstances/materialmentioned above. On the other hand, where theprosecution evidence is almost complete or after theconclusion of the evidence the matter is at the stageof argument, normally the High Court should refrainfrom exercising its power under Section 482 of theCode, as in such cases the trial court would be in aposition to decide the case finally on merits and tocome a conclusion as to whether the offence underSection 307 IPC is committed or not. Similarly, inthose cases where the conviction is already recordedby the trial court and the matter is at the appellatestage before the High Court, mere compromisebetween the parties would not be a ground to acceptthe same resulting in acquittal of the offender whohas already been convicted by the trial court. Herecharge is proved under Section 307 IPC andconviction is already recorded of a heinous crimeand, therefore, there is no question of sparing aconvict found guilty of such a crime.”

5. It would be seen that prior to Narinder Singh’scase (supra), a three Hon’ble Judges Bench had considered therelevant scope of Sections 482 and 320 Cr.P.C. in Gian Singhversus State of Punjab and another (2012) 10 SCC 303wherein it was held that power of the High Court in quashingof the criminal proceedings or FIR or complaint in exercise ofits inherent power is distinct and different from the power of a Criminal Court for compounding offences under Section 320Cr.P.C. While exercising inherent power of quashment underSection 482 Cr.P.C., the Court must have due regard to thenature and gravity of the crime and its social impact. It warnedthe High Court for quashing proceedings in heinous and seriousoffences of mental depravity, murder, rape, dacoity etc. whichprinciples have been reported and reaffirmed in NarinderSingh’s case (supra).

6. Now the further question remains whether thisCourt can quash proceedings where petitioner has beencharged under Sections 336, 337, 338, 201 IPC and underSection 30 of Arms Act, 1959. This question need not detainthis Court any longer in view of the judgment of the Hon’bleSupreme Court in Dimpey Gujral, W/o Vivek Gujral andothers versus Union Territory through Administrator, UT,Chandigarh and others (2013) 11 SCC 497 where theHon’ble Supreme Court in a case seeking quashment of FIRand its consequential proceedings involving Sections 147, 148,149, 323, 307, 452 and 506 IPC after relying upon thejudgment of Gian Singh’s case (supra) held as follows:- “7. In certain decisions of this court in view of thesettlement arrived at by the parties, this courtquashed the FIRs though some of the offences werenon-compoundable. A two Judges' Bench of this courtdoubted the correctness of those decisions. LearnedJudges felt that in those decisions, this court hadpermitted compounding of non-compoundableoffences. The said issue was, therefore, referred to alarger bench.

The larger Bench in Gian Singh v. State of Punjab(2012) 10 SCC 303 considered the relevantprovisions of the Code and the judgments of thiscourt and concluded as under: (SCC pp.342-43, para61)

“61. The position that emerges from the abovediscussion can be summarised thus: the power ofthe High Court in quashing a criminal proceeding orFIR or complaint in exercise of its inherentjurisdiction is distinct and different from the powergiven to a criminal court for compounding theoffences under Section 320 of the Code. Inherentpower is of wide plenitude with no statutorylimitation but it has to be exercised in accord withthe guideline engrafted in such power viz; (i) tosecure the ends of justice or (ii) to prevent abuseof the process of any Court. In what cases power toquash the criminal proceeding or complaint or F.I.Rmay be exercised where the offender and victimhave settled their dispute would depend on thefacts and circumstances of each case and nocategory can be prescribed. However, before exercise of such power, the High Court must havedue regard to the nature and gravity of the crime.Heinous and serious offences of mental depravityor offences like murder, rape, dacoity, etc. cannotbe fittingly quashed even though the victim orvictim's family and the offender have settled thedispute. Such offences are not private in natureand have serious impact on society. Similarly, anycompromise between the victim and offender inrelation to the offences under special statutes likePrevention of Corruption Act or the offencescommitted by public servants while working in thatcapacity etc; cannot provide for any basis forquashing criminal proceedings involving suchoffences. But the criminal cases havingoverwhelmingly and pre-dominatingly civil flavourstand on different footing for the purposes ofquashing, particularly the offences arising fromcommercial, financial, mercantile, civil, partnershipor such like transactions or the offences arising outof matrimony relating to dowry, etc. or the familydisputes where the wrong is basically private orpersonal in nature and the parties have resolvedtheir entire dispute. In this category of cases, theHigh Court may quash criminal proceedings if in itsview, because of the compromise between theoffender and victim, the possibility of conviction isremote and bleak and continuation of criminal casewould put accused to great oppression andprejudice and extreme injustice would be caused tohim by not quashing the criminal case despite fulland complete settlement and compromise with thevictim. In other words, the High Court mustconsider whether it would be unfair or contrary to the interest of justice to continue with the criminalproceeding or continuation of the criminalproceeding would tantamount to abuse of processof law despite settlement and compromisebetween the victim and wrongdoer and whether tosecure the ends of justice, it is appropriate thatcriminal case is put to an end and if the answer tothe above question(s) is in affirmative, the HighCourt shall be well within its jurisdiction to quashthe criminal proceeding.”

(emphasis supplied)

8. In the light of the above observations of this courtin Gian Singh, we feel that this is a case where thecontinuation of criminal proceedings wouldtantamount to abuse of process of law because thealleged offences are not heinous offences showingextreme depravity nor are they against the society.They are offences of a personal nature and buryingthem would bring about peace and amity betweenthe two sides. In the circumstances of the case, FIRNo.163 dated 26/10/2006 registered under Section147, 148,149, 323, 307, 452 and 506 of the IPC atPolice Station Sector 3,Chandigarh and allconsequential proceedings arising there fromincluding the final report presented under Section173 of the Code and charges framed by the trialcourt are hereby quashed.”

7. Keeping in view the aforesaid guidelines, it is not disputed that the parties have reached a settlement and on thatbasis have preferred the present proceedings seeking quashment of the FIR. Once respondents No.2 and 3 do notwant to hold the petitioner responsible, the quashing of such FIRwould definitely be to secure the ends of justice and to preventabuse of process of the Court.

8. The facts of this case otherwise do not in any mannerfall within the exceptions laid down by the Hon’ble SupremeCourt where compromise cannot be entered into or theproceedings cannot be quashed.

9. On the basis of the aforesaid exposition of law, thisCourt is of the opinion that this is a case where thecontinuation of the criminal proceedings would tantamount toabuse of process of law because the alleged offences areneither heinous offences showing extreme depravity nor arethey strictly against the society. They are offences of personalnature and quashing the proceedings would bring about peaceand amity between two sides.

10. Thus, taking holistic view of the matter and lookinginto all attending facts and circumstances, I find this to be a fitcase to exercise powers under Section 482 of the Code andaccordingly FIR No.45/2015, dated 09.03.2015, registered atPolice Station, Baddi, under Sections, 336, 337, 338, 201 IPC

and under Section 30 of Arms Act, 1959, and consequentialproceedings and challan arising out therefrom, are quashed.

11. The petition stands allowed in the aforesaid terms.

Pending application, if any, also stands disposed of.

31[st] December, 2018. (Tarlok Singh Chauhan)(krt) Judge