CRMMO/791/2019 of GAGAN DEEP Vs STATE OF HP AND ANOTHER on 31 December 2019

IN THE HIGH COURT OF HIMACHAL PRADESH,SHIMLA

Cr.MMO No. 791 of 2019

Date of Decision: 31.12.2019

----------------------------------------------------------------------------------------- Gagan Deep

……...Petitioner

Versus

State of Himachal Pradesh & others

…....Respondents

------------------------------------------------------------------------------------------- CoramHon’ble Mr. Justice Sandeep Sharma, Judge.Whether approved for reporting[1]?

------------------------------------------------------------------------------------------ For the Petitioner: Mr.N.K.Thakur, Senior Advocate with Mr.Divya Raj Singh, Advocate.

For the Respondents: Mr. Anil Jaswal, Additional AdvocateGeneral, for the respondent/State.

Mr. Anubhav Chopra, Advocate, forrespondent No.2.

----------------------------------------------------------------------------------------- Sandeep Sharma, J. (Oral)

By way of instant petition filed under Section 482 of the Code of Criminal Procedure, prayer has been made on behalf of the petitioner for quashing of FIR No.33/2019 dated 28.6.2019

under Sections 279, 337 and 304-A of Indian Penal Code ( forshort‘IPC’), registered with Police Station, Chintpurni, District Una, H.P., as well as consequent proceedings i.e. Criminal CaseNo.325/I/2019, pending adjudication in the Court of learnedJudicial Magistrate,1st Class, Court No.2, Amb, District Una, H.P.,on the basis of the compromisearrived inter se parties (Annexure P-2).

2. Averments contained in the petition, which is dulysupported by an affidavit, reveals that FIR sought to be quashed inthe instant proceedings, came to be lodged by person namely, JeetSingh, who alleged that on 28.6.2019, person riding the scooterbearing registration No. HP-19-E-2293 suffered injuries on accountof being hit by the vehicle bearing registration No. PB-10-GT-9746being driven by the petitioner at that relevant time. Aforesaidscooter was being driven by respondent No.2/complainant Sh.Kamal Khan and his father namely, Sh. Bashir Mohammad was apillion rider. On account of the injuries suffered in the aforesaidaccident, pillion rider namely, Sh. Bashir Mohammad, who was 82years old, has expired. On the basis of aforesaid complaint lodgedby the above named person Sh. Jeet Singh, FIR sought to bequashed in the instant proceedings, came to be lodged at police Station, Chintpurni, District Una, Himachal Pradesh. Aftercompletion of the investigation, police presented the challan inthe Court of learned Judicial Magistrate,1st Class, Court No.2,Amb, District Una, Himachal Pradesh, which is pendingadjudication. During the pendency of aforesaid case before theCourt at Amb, parties have resolved to settle their disputeamicably, as is evident from compromise deed (Annexure P-2)placed on record, whereby both the parties with the intervention ofrespectable members of the society have resolved to settle theirdispute amicably inter se them.

3. On 23.12.2019, this Court while issuing notice to therespondents, deemed it necessary to cause presence of the parties,especially respondent No..2, Sh. Kamal Khan, who in the allegedaccident suffered injuries and lost his father. Pursuant to aforesaidorder dated 23.12.2019, parties have come present in Court.Respondent No.2/Complainant namely, Sh. Kamal Khan on oathstated before this Court that he of his own volition and withoutthere being any external pressure has entered into the compromisewith the petitioner, whereby they have resolved to settle their dispute amicably inter se them and as such, he shall have no objection in case prayer made on behalf of the petitioner forquashment of FIR as well as consequent proceedings, is accepted.His statement is taken on record.

4. Mr. Anil Jaswal, learned Additional Advocate General,who was directed to have instructions, fairly stated that as per thereport submitted by the police both the petitioner and respondentNo.2/complainant have resolved to settle their dispute amicablyinter se them vide compromise deed (Annexure P-2) and as such,no fruitful purpose would be served in case FIR as well asconsequent proceeding initiated at the behest of respondent No.2/complainant, are allowed to sustain. Learned Additional AdvocateGeneral further contended that though in the case at handcomplaint was lodged by person namely, Sh. Jeet Singh, but sincevictim, who himself suffered injuries and lost his father, hasentered into the compromise with the petitioner, there are verybleak chances of conviction and as such, prayer made on behalf ofthe petitioner for quashment of the FIR as well as consequentproceedings, may be accepted.

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5. This Court, after having carefully perused thecompromise, which has been duly effected between the parties,sees substantial force in the prayer having been made by thelearned counsel for the petitioner that offences in the instant casecan be ordered to be compounded.

6. Since the petition has been filed under Section 482Cr.P.C, this Court deems it fit to consider the present petition inthe light of the judgment passed by Hon’ble Apex Court inNarinder Singh and others versus State of Punjab andanother (2014)6 Supreme Court Cases 466, whereby Hon’bleApex Court has formulated guidelines for accepting the settlementand quashing the proceedings or refusing to accept the settlementwith direction to continue with the criminal proceedings. Perusal ofjudgment referred above clearly depicts that in para 29.1, Hon’bleApex Court has returned the findings that power conferred underSection 482 of the Code is to be distinguished from the power whichlies in the Court to compound the offences under section 320 of theCode. No doubt,under section 482 of the Code, the High Court hasinherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However,this power is to be asunder:-

29. In view of the aforesaid discussion, we sum up and laydown the following principles by which the High Courtwould be guided in giving adequate treatment to thesettlement between the parties and exercising its powerunder Section 482 of the Code while accepting thesettlement and quashing the proceedings or refusing toaccept the settlement with direction to continue with thecriminal proceedings:

29.1Power conferred under Section 482 of the Code is to bedistinguished from the power which lies in the Court tocompound the offences under Section 320of the Code. Nodoubt, under Section 482of the Code, the High Court hasinherent power to quash the criminal proceedings even inthose cases which are not compoundable, where the partieshave settled the matter between themselves. However, thispower is to be exercised sparingly and with caution.

29.2. When the parties have reached the settlement and onthat basis petition for quashing the criminal proceedings isfiled, the guiding factor in such cases would be to secure:

(i) ends of justice, or

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

While exercising the power under Section 482 Cr.P.C theHigh Court is to form an opinion on either of the aforesaidtwo objectives.

29.3. Such a power is not be exercised in thoseprosecutions which involve heinous and serious offences ofmental depravity or offences like murder, rape, dacoity,etc. Such offences are not private in nature and have aserious impact on society. Similarly, for offences alleged tohave been committed under special statute like the Prevention of Corruption Act or the offences committed byPublic Servants while working in that capacity are not tobe quashed merely on the basis of compromise between thevictim and the offender.

29.4. On the other, those criminal cases havingoverwhelmingly and pre-dominantly civil character,particularly those arising out of commercial transactionsor arising out of matrimonial relationship or familydisputes should be quashed when the parties haveresolved their entire disputes among themselves.

29.5. While exercising its powers, the High Court is toexamine as to whether the possibility of conviction isremote and bleak and continuation of criminal cases wouldput the accused to great oppression and prejudice andextreme injustice would be caused to him by not quashingthe criminal cases.

29.6. Offences under Section 307IPC would fall in thecategory of heinous and serious offences and therefore is tobe generally treated as crime against the society and notagainst the individual alone. However, the High Courtwould not rest its decision merely because there is amention of Section 307IPC in the FIR or the charge isframed under this provision. It would be open to the HighCourt to examine as to whether incorporation of Section307 IPC is there for the sake of it or the prosecution hascollected sufficient evidence, which if proved, would lead toproving the charge under Section 307IPC. For thispurpose, it would be open to the High Court to go by thenature of injury sustained, whether such injury is inflictedon the vital/delegate parts of the body, nature of weaponsused etc. Medical report in respect of injuries suffered bythe victim can generally be the guiding factor. On the basisof this prima facie analysis, the High Court can examineas to whether there is a strong possibility of conviction orthe chances of conviction are remote and bleak. In theformer case it can refuse to accept the settlement andquash the criminal proceedings whereas in the later case itwould be permissible for the High Court to accept the pleacompounding the offence based on complete settlementbetween the parties. At this stage, the Court can also beswayed by the fact that the settlement between the parties is going to result in harmony between them which mayimprove their future relationship.

29.7. While deciding whether to exercise its power underSection 482of the Code or not, timings of settlement play acrucial role. Those cases where the settlement is arrived atimmediately after the alleged commission of offence andthe matter is still under investigation, the High Court maybe liberal in accepting the settlement to quash thecriminal proceedings/investigation. It is because of thereason that at this stage the investigation is still on andeven the charge sheet has not been filed. Likewise, thosecases where the charge is framed but the evidence is yet tostart or the evidence is still at infancy stage, the HighCourt can show benevolence in exercising its powersfavourably, but after prima facie assessment of thecircumstances/material mentioned above. On the otherhand, where the prosecution evidence is almost completeor after the conclusion of the evidence the matter is at thestage of argument, normally the High Court should refrainfrom exercising its power under Section 482of the Code, asin such cases the trial court would be in a position todecide the case finally on merits and to come a conclusionas to whether the offence under Section 307IPC iscommitted or not. Similarly, in those cases where theconviction is already recorded by the trial court and thematter is at the appellate stage before the High Court,mere compromise between the parties would not be aground to accept the same resulting in acquittal of theoffender who has already been convicted by the trial court.Here charge is proved under Section 307 IPC andconviction is already recorded of a heinous crime and,therefore, there is no question of sparing a convict foundguilty of such a crime”.

7. The Hon’ble Apex Court in case Gian Singh v.

State of Punjab and anr. (2012) 10 SCC 303 has held thatpower of the High Court in quashing of the criminal proceedingsor FIR or complaint in exercise of its inherent power is distinct and different from the power of a Criminal Court forcompounding offences under Section 320 Cr.PC. Even in the judgment passed in Narinder Singh’s case, the Hon’ble Apex Court has held that while exercising inherent power under Section482 Cr.PC the Court must have due regard to the nature andgravity of the crime and its social impact and it cautioned theCourts not to exercise the power for quashing proceedings inheinous and serious offences of mental depravity, murder, rape,dacoity etc. However subsequently, the Hon’ble Apex Court in Dimpey Gujral and Ors. vs. Union Territory throughAdministrator, UT, Chandigarh and Ors. (2013( 11 SCC 497has also held as under:- “7. In certain decisions of this Court in view of thesettlement arrived at by the parties, this Court quashedthe FIRs though some of the offences were non-compoundable. A two Judges’ Bench of this court doubtedthe correctness of those decisions. Learned Judges feltthat in those decisions, this court had permittedcompounding of non-compoundable offences. The saidissue was, therefore, referred to a larger bench.

The larger Bench in Gian Singh v. State of Punjab (2012)10 SCC 303 considered the relevant provisions of the Codeand the judgments of this court and concluded as under:(SCC pp. 342-43, para 61)

61. The position that emerges from the abovediscussion can be summarised thus: the power ofthe High Court in quashing a criminal proceeding

or FIR 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 abuse ofthe process of any Court. In what cases power toquash the criminal proceeding or complaint orF.I.R may be exercised where the offender andvictim have settled their dispute would depend onthe facts and circumstances of each case and nocategory can be prescribed. However, before exerciseof such power, the High Court must have dueregard to the nature and gravity of the crime.Heinous and se serious impact on society. Similarly,any compromise 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,partnership or such like transactions or the offencesarising out of matrimony relating to dowry, etc. orthe family disputes where the wrong is basicallyprivate or personal in nature and the parties haveresolved their entire dispute. In this category ofcases, High Court may quash criminal proceedingsif in its view, 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 must consider whether it would be unfair or contrary tothe interest of justice to continue with the criminalproceeding or continuation of the criminalproceeding would tantamount to abuse of process oflaw despite settlement and compromise between thevictim and wrongdoer and whether to secure theends of justice, it is appropriate that criminal caseis put to an end and if the answer to the abovequestion(s) is in affirmative, the High Court shallbe well within its jurisdiction to quash the criminalproceeding.” (emphasis supplied)

8. In the light of the above observations of this court inGian Singh, we feel that this is a case where thecontinuation of criminal proceedings would tantamount toabuse of process of law because the alleged offences are notheinous offences showing extreme depravity nor are theyagainst the society. They are offences of a personal natureand burying them would bring about peace and amitybetween the two sides. In the circumstances of the case,FIR No. 163 dated 26.10.2006 registered under Section147, 148, 149, 323, 307, 452 and 506 of the IPC at PoliceStation Sector 3, Chandigarh and all consequentialproceedings arising there from including the final reportpresented under Section 173 of the Code and chargesframed by the trial Court are hereby quashed.”

8. Recently Hon’ble Apex Court in its latest judgment dated 4[th] October, 2017, titled as Parbatbhai Aahir @Parbatbhai Bhimsinhbhai Karmur and others versus State of Gujarat and Another, passed in Criminal Appeal No.1723 of2017 arising out of SLP(Crl) No.9549 of 2016, reiterated theprinciples/ parameters laid down in Narinder Singh’s casesupra for accepting the settlement and quashing the proceedings.

It would be profitable to reproduce para No. 13 to 15 of the judgment herein:

“13. The same principle was followed in Central Bureau ofInvestigation v. Maninder Singh (2016)1 SCC 389 by abench of two learned Judges of this Court. In that case, theHigh Court had, in the exercise of its inherent power underSection 482 quashed proceedings under Sections 420, 467, 468and 471 read with Section 120-B of the Penal Code. Whileallowing the appeal filed by the Central Bureau ofInvestigation Mr Justice Dipak Misra (as the learned ChiefJustice then was) observed that the case involved allegationsof forgery of documents to embezzle the funds of the bank. Insuch a situation, the fact that the dispute had been settledwith the bank would not justify a recourse to the power underSection 482:

“…In economic offences Court must not only keep inview that money has been paid to the bank which hasbeen defrauded but also the society at large. It is not acase of simple assault or a theft of a trivial amount; butthe offence with which we are concerned is well plannedand was committed with a deliberate design with aneye of personal profit regardless of consequence tothe society at large. To quash the proceeding merely onthe ground that the accused has settled the amountwith the bank would be a misplaced sympathy. If theprosecution against the economic offenders are notallowed to continue, the entire community is aggrieved."

14. In a subsequent decision in State of Tamil Nadu vR Vasanthi Stanley (2016) 1 SCC 376, the court rejectedthe submission that the first respondent was a woman “whowas following the command of her husband” and had signedcertain documents without being aware of the nature of thefraud which was being perpetrated on the bank. Rejecting thesubmission, this Court held that:

“... Lack of awareness, knowledge or intent is neither tobe considered nor accepted in economic offences. Thesubmission assiduously presented on gender leaves usunimpressed. An offence under the criminal law is anoffence and it does not depend upon the gender of anaccused. True it is, there are certain provisions in Codeof Criminal Procedure relating to exercise of jurisdictionUnder Section 437, etc. therein but that altogetherpertains to a different sphere. A person committing amurder or getting involved in a financial scam orforgery of documents, cannot claim discharge oracquittal on the ground of her gender as that is neitherconstitutionally nor statutorily a valid argument. Theoffence is gender neutral in this case. We say no moreon this score…”

“…A grave criminal offence or serious economic offenceor for that matter the offence that has the potentialityto create a dent in the financial health of theinstitutions, is not to be quashed on the ground thatthere is delay in trial or the principle that when thematter has been settled it should be quashed to avoidthe load on the system…”

15. The broad principles which emerge from the precedents on the subject may be summarized in the following propositions:

(i) Section 482 preserves the inherent powers of the HighCourt to prevent an abuse of the process of any court orto secure the ends of justice. The provision does notconfer new powers. It only recognizes and preservespowers which inhere in the High Court; Court to prevent an abuse of the process of any court orto secure the ends of justice. The provision does notconfer new powers. It only recognizes and preservespowers which inhere in the High Court;

(ii) The invocation of the jurisdiction of the High Courtto quash a First Information Report or a criminalproceeding on the ground that a settlement has beenarrived at between the offender and the victim is not thesame as the invocation of jurisdiction for the purpose ofcompounding an offence. While compounding an offence,the power of the court is governed by the provisions ofSection 320 of the Code of Criminal Procedure, 1973.The power to quash under Section 482 is attracted evenif the offence is non-compoundable. to quash a First Information Report or a criminalproceeding on the ground that a settlement has beenarrived at between the offender and the victim is not thesame as the invocation of jurisdiction for the purpose ofcompounding an offence. While compounding an offence,the power of the court is governed by the provisions ofSection 320 of the Code of Criminal Procedure, 1973.The power to quash under Section 482 is attracted evenif the offence is non-compoundable.

(iii) In forming an opinion whether a criminal proceeding orcomplaint should be quashed in exercise of itsjurisdiction under Section 482, the High Court mustevaluate whether the ends of justice would justify theexercise of the inherent power;complaint should be quashed in exercise of itsjurisdiction under Section 482, the High Court mustevaluate whether the ends of justice would justify theexercise of the inherent power;

(iv) While the inherent power of the High Court has awide ambit and plenitude it has to be exercised; (i) tosecure the ends of justice or (ii) to prevent an abuse ofthe process of any court; wide ambit and plenitude it has to be exercised; (i) tosecure the ends of justice or (ii) to prevent an abuse ofthe process of any court;

(v) The decision as to whether a complaint or FirstInformation Report should be quashed on the groundthat the offender and victim have settled the dispute,revolves ultimately on the facts and circumstances ofeach case and no exhaustive elaboration of principles canbe formulated;Information Report should be quashed on the groundthat the offender and victim have settled the dispute,revolves ultimately on the facts and circumstances ofeach case and no exhaustive elaboration of principles canbe formulated;

(vi) In the exercise of the power under Section 482 and whiledealing with a plea that the dispute has bee inherent nsettled, the High Court must have due regard to thenature and gravity of the offence. Heinous and seriousoffences involving mental depravity or offences such asmurder, rape and dacoity cannot appropriately bequashed though the victim or the family of the victimhave settled the dispute. Such offences are, trulyspeaking, not private in nature but have a seriousimpact upon society. The decision to continue withthe trial in such cases is founded on the overridingelement of public interest in punishing persons forserious offences;dealing with a plea that the dispute has bee inherent nsettled, the High Court must have due regard to thenature and gravity of the offence. Heinous and seriousoffences involving mental depravity or offences such asmurder, rape and dacoity cannot appropriately bequashed though the victim or the family of the victimhave settled the dispute. Such offences are, trulyspeaking, not private in nature but have a seriousimpact upon society. The decision to continue withthe trial in such cases is founded on the overridingelement of public interest in punishing persons forserious offences;

(vii) As distinguished from serious offences, there may becriminal cases which have an overwhelming orpredominant element of a civil dispute. They stand on adistinct footing in so far as the exercise of the inherentpower to quash is concerned;criminal cases which have an overwhelming orpredominant element of a civil dispute. They stand on adistinct footing in so far as the exercise of the inherentpower to quash is concerned;

(viii) Criminal cases involving offences which arise fromcommercial, financial, mercantile, partnership orsimilar transac mental tions with an essentiallycivil flavour may in appropriate situations fall forquashing where parties have settled the dispute; commercial, financial, mercantile, partnership orsimilar transac mental tions with an essentiallycivil flavour may in appropriate situations fall forquashing where parties have settled the dispute;

(ix) In such a case, the High Court may quash the criminalproceeding if in view of the compromise between thedisputants, the possibility of a conviction is remoteproceeding if in view of the compromise between thedisputants, the possibility of a conviction is remote and the continuation of a criminal proceeding wouldcause oppression and prejudice; andcause oppression and prejudice; and

(x) There is yet an exception to the principle set out inpropositions (viii) and (ix) above. Economic offencesinvolving the financial and economic well-being of thestate have implications which lie beyond the domain of amere dispute between private disputants. The HighCourt would be justified in declining to quash where theoffender is involved in an activity akin to a financial oreconomic fraud or misdemeanour. The consequencesof the act complained of upon the financial or economicsystem will weigh in the balance.propositions (viii) and (ix) above. Economic offencesinvolving the financial and economic well-being of thestate have implications which lie beyond the domain of amere dispute between private disputants. The HighCourt would be justified in declining to quash where theoffender is involved in an activity akin to a financial oreconomic fraud or misdemeanour. The consequencesof the act complained of upon the financial or economicsystem will weigh in the balance.

9. It is quite apparent from the aforesaid exposition of law that High Court has inherent power to quash criminalproceedings even in those cases which are not compoundable,but such power is to be exercised sparingly and with greatcaution. In the judgments, referred hereinabove, Hon’ble ApexCourt has categorically held that Court while exercising inherentpower under Section 482 Cr.P.C. must have due regard to thenature and gravity of offence sought to be compounded. Hon’ble Apex Court has though held that heinous and serious offences ofmental depravity, murder, rape, dacoity etc. cannot appropriatelybe quashed though the victim or the family of the victim havesettled the dispute,but it has also observed that while exercisingits powers, High Court is to examine as to whether thepossibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression andprejudice and extreme injustice would be caused to him by notquashing the criminal cases. Hon’ble Apex Court has further heldthat Court while exercising power under Section 482 Cr.P.C canalso be swayed by the fact that settlement between the parties isgoing to result in harmony between them which may improvetheir future relationship. Hon’ble Apex Court in its judgmentrendered in State of Tamil Nadu supra, has reiterated thatSection 482 preserves the inherent powers of the High Court toprevent an abuse of the process of any court or to secure the endsof justice and has held that the power to quash under Section 482is attracted even if the offence is non-compoundable. In theaforesaid judgment Hon’ble Apex Court has held that whileforming an opinion whether a criminal proceedings or complaintshould be quashed in exercise of its jurisdiction under Section482, the High Court must evaluate whether the ends of justicewould justify the exercise of the inherent power.

10. Consequently, in view of the averments contained inthe petition as well as the submissions having been made by the learned counsel for the parties that the matter has beencompromised, and keeping in mind the well settled proposition of law as well as the compromise being genuine, this Court has noinhibition in accepting the compromise and quashing the FIR aswell as consequent proceedings pending in the competent Courtof law.

Arguments

11. Accordingly, in view of the detailed discussion madehereinabove as well as law laid down by the Hon’ble Apex Court,FIR No.33/2019 dated 28.6.2019 under Sections 279, 337 and 304-Aof Indian Penal Code, registered with Police Station, Chintpurni,District Una, H.P., as well as consequent proceedings i.e. CriminalCase No.325/I/2019, pending adjudication in the Court of learnedJudicial Magistrate,1st Class, Court No.2, Amb, District Una, H.P.are quashed and set-aside and the petitioner- accused is acquittedof the charge framed against him.

The present petition is allowed in the aforesaid terms.Pending application(s), if any, also stands disposed of.

31[st] December, 2019

(shankar)

(Sandeep Sharma),