CRMMO/597/2018 of JITENDER SINGH Vs STATE OF HP AND ANOTHER on 31 December 2018

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. MMO No. 597 of 2018 Date of Decision : December 31, 2018

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Coram:The Hon’ble Mr. Justice Sandeep Sharma, Judge.Whether approved for reporting?[1]

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For the petitioner :Mr. Maan Singh, Advocate. For the respondent (s) :Mr. S.C. Sharma, Mr. DineshThakur and Mr. Sanjeev Sood,Additional Advocate Generals withMr. Amit Kumar Dhumal, DeputyAdvocate General, for respondentNo.1. For the respondent (s) :Mr. S.C. Sharma, Mr. DineshThakur and Mr. Sanjeev Sood,Additional Advocate Generals withMr. Amit Kumar Dhumal, DeputyAdvocate General, for respondentNo.1.

Shri Ashwani Kaundal, Advocate,for respondent No.2.__

Sandeep Sharma, J. (Oral)

By way of present petition filed under Section 482Cr.P.C, a prayer has been made on behalf of the petitioner-accused, for quashing of FIR No. 55 of 2018, dated 22.5.2018,registered at Police Station Bharari, Tehsil Ghumarwin, DistrictBilapur, H.P. under Sections 279 and 337 of IPC as well asconsequential proceedings pending in the Court of learnedJudicial Magistrate, 1[st] Class, Court No.3, Ghumarwin, DistrictBilaspur, H.P.

1Whether reports of Local Papers may be allowed to see the judgment?

2. Sh. Ashwani Kaundal, learned counsel, has filedPower of Attorney on behalf of respondent No.2 during thecourse of the proceedings, which is taken on record.

3. Facts as emerge from the record are that on22.5.2018, FIR detailed as above, came to be lodged at thebehest of respondent-complainant at Police Station Bharari,Tehsil Ghumarwin, District Bilaspur, H.P., who alleged that on22.5.2018, at about 6.30 P.M., when she reached at a placecalled Dangar, her daughter was hit by Car bearing RegistrationNo. PB-08DH-2061 (Toyota, white colour), enroute from Hamirpurto Ghumarwin, being driven by the petitioner-accused(hereinafter referred to as “accused”). Complainant alleged thatat the time of alleged incident, aforesaid vehicle was beingdriven rashly and negligently by the accused and as such, on thebasis of aforesaid complaint, having been made by thecomplainant, case under Section 279 and 337 of IPC, came to beregistered against the accused. Police after completion ofinvestigation, presented the challan in the Court of learnedJudicial Magistrate, 1[st] Class, Court No. III, Ghumarwin. However,fact remains that trial is yet to commence because matter hasbeen fixed for framing of charge on 16.1.2019.

4. Sh. Maan Singh, learned counsel representing thepetitioner, while inviting attention of this court to (Annexure P-3),

i.e., compromise deed, contended that during the pendency oftrial before the learned Court below, parties have resolved tosettle their dispute amicably inter se them and as such this Courtmay exercise its power under Section 482 of Cr. P.C in order tocompound the offence as well as quash the FIR lodged at thebehest of respondent No.2. Mr. Mann Singh, further contendedthat with the intervention of respectable members of society,petitioner as well as respondent No.2, have resolved to settle thedispute amicably inter se them and by way of compromise,respondent No.2, has agreed to withdraw the case registered ather behest against the accused.

5. Respondent-complainant, Smt. Sajima Khatun, whohas come present in the Court stated on oath before this Courtthat she of her own volition without there being any externalpressure has entered into compromise dated 17[th] December,2018, whereby she has agreed to withdraw case registeredagainst the accused at her behest. She categorically statedbefore this court that with the intervention of family membersand respectable members of society, she has entered intocompromise with the accused and she shall have no objection incase FIR detailed hereinabove lodged at her behest is ordered tobe quashed and set aside. Respondent No.2 who is present inthe court has been identified by Sh. Ashwani Kaundal, learned counsel, who has also filed Power of Attorney on her behalf.Statement of Smt. Sajima Khatun, made on oath, is taken onrecord.

6. Mr. Dinesh Thakur, learned Additional AdvocateGeneral, while going through the compromise placed on recordas well as statement made by respondent No.2, fairly submittedthat in view of the compromise arrived inter se parties, this Courtcan accede to the prayer made in the present petition forquashing of FIR and consequential proceedings pending in theCourt of Judicial Magisrate, 1[st] Class, Court No.III, Ghumarwin,District Bilaspur, H.P. because no fruitful purpose would beserved in case FIR lodged at the behest of respondent No.2, isallowed to sustain in view of the subsequent development.

7. This Court, after having carefully perused thecompromise placed on record as well as statement made byrespondent No.2, sees substantial force in the prayer havingbeen made by the learned counsel for the petitioner-accusedthat offences in the instant case can be ordered to becompounded.

8. Since the petition has been filed under Section 482Cr.PC, this Court deems it fit to consider the present on petitionin the light of the judgment passed by Hon’ble Apex Court inNarinder Singh and others versus State of Punjab and another (2014)6 Supreme Court Cases 466,whereby Hon’bleApex Court has formulated guidelines for accepting thesettlement and quashing the proceedings or refusing to acceptthe settlement with direction to continue with the criminalproceedings. Perusal of judgment referred to above clearlydepicts that in para 29.1, Hon’ble Apex Court has returned thefindings that power conferred under Section 482 of the Code ofCriminal Procedure is to be distinguished from the power whichlies in the Court to compound the offence under section 320 ofthe Code of Criminal Procedure. No doubt, under section 482 ofthe Code, the High Court has inherent powers to quash thecriminal proceedings even in those cases which are notcompoundable, where the parties have settled the matterbetween themselves. However, this power is to be exercisedsparingly and with great caution. Para Nos. 29 to 29.7 of thejudgment are reproduced as under:

“29. In view of the aforesaid discussion, we sum upand lay down the following principles by which theHigh Court would be guided in giving adequatetreatment to the settlement between the parties andexercising its power under Section 482of the Codewhile accepting the settlement and quashing theproceedings or refusing to accept the settlementwith direction to continue with the criminalproceedings:

29.1Power conferred under Section 482of the Code isto be distinguished from the power which lies in theCourt to compound the offences underSection 320

of the Code. No doubt, under Section 482of 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.

29.2. 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 under Section 482 Cr.P.Cthe High Court is to form an opinion on either of theaforesaid two objectives.

29.3. 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 beencommitted under special statute like the Preventionof Corruption Actor the offences committed by PublicServants while working in that capacity are not to bequashed merely on the basis of compromisebetween the victim and the offender.

29.4. 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.

29.5. While exercising its powers, the High Court isto examine as to whether the possibility ofconviction is remote and bleak and continuation ofcriminal cases would put the accused to greatoppression and prejudice and extreme injustice would be caused to him by not quashing the criminalcases.

29.6. Offences under Section 307 IPC would fall inthe category 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 307IPCin the FIR or the charge is framed under thisprovision. It would be open to the High Court toexamine as to whether incorporation of Section307IPC is there for the sake of it or the prosecutionhas collected sufficient evidence, which if proved,would lead to proving the charge under Section307IPC. For this purpose, it would be open to theHigh Court to go by the nature of injury sustained,whether such injury is inflicted on thevital/delegateparts of the body, nature of weapons used etc. Medical report in respect of injuriessuffered by the victim can generally be the guidingfactor. On the basis of this prima facie analysis, theHigh Court can examine as to whether there is astrong possibility of conviction or the chances ofconviction are remote and bleak. In the former caseit can refuse to accept the settlement and quash thecriminal proceedings whereas in the later case itwould be permissible for the High Court to acceptthe plea compounding the offence based oncomplete settlement between the parties. At thisstage, the Court can also be swayed by the fact thatthe settlement between the parties is going to resultin harmony between them which may improve theirfuture relationship.

29.7. 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 primafacie 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 482of 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”.

“32. We find from the impugned order that the solereason which weighed with the High Court in refusing to acceptthe settlement between the parties was the nature of injuries. If wego by that factor alone, normally we would tend toagree with the High Court’s approach. However, aspointed out hereinafter, some other attendant andinseparable circumstances also need to be kept in mind which compels us to take adifferent view.

33. We have gone through the FIR as well which wasrecorded on the basis of statement of thecomplainant/victim. It gives an indication that thecomplainant was attacked allegedly by the accusedpersons because of some previous dispute betweenthe parties, though nature of dispute, etc. is notstated in detail. However, a very pertinent statementappears on record viz. “respectable persons have been trying for a compromise up till now, whichcould not be finalized.” This becomes an importantaspect. It appears that there have been somedisputes which led to the aforesaid purported attackby the accused on the complainant. In this contextwhen we find that the elders of the village, includingSarpanch, intervened in the matter and the partieshave not only buried their hatchet but have decidedto live peacefully in future, this becomes animportant consideration. The evidence is yet to beled in the Court. It has not even started. In view ofcompromise between parties, there is a minimalchance of the witnesses coming forward in supportof the prosecution case. Even though nature ofinjuries can still be established by producing thedoctor as witness who conduced medicalexamination, it may become difficult to prove as towho caused these injuries. The chances ofconviction, therefore, appear to be remote. It would,therefore, be unnecessary to drag theseproceedings. We, taking all these factors intoconsideration cumulatively, are of the opinion thatthe compromise between the parties be acceptedand the criminal proceedings arising out of FIRNo.121 dated 14.7.2010 registered with policestation Lopoke, District Amritsar Rural be quashed.We order accordingly.”

9. The Hon’ble Apex Court in case Gian Singh v. Stateof Punjab and anr. (2012) 10 SCC 3 03 has held that power of theHigh Court in quashing of the criminal proceedings or FIR orcomplaint in exercise of its inherent power is distinct anddifferent from the power of a Criminal Court for compoundingoffences under Section 320 Cr.PC. Even in the judgment passedin Narinder Singh’s case, the Hon’ble Apex Court has held thatwhile exercising inherent power under Section 482 Cr.PC theCourt must have due regard to the nature and gravity of the crime and its social impact and it cautioned the Courts not toexercise the power for quashing proceedings in heinous andserious offences of mental depravity, murder, rape, dacoity etc.However subsequently, the Hon’ble Apex Court in Dimpey Gujraland Ors. vs. Union Territory through Administrator, 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 Courtquashed the FIRs though some of the offences werenon-compoundable. A two Judges’ Bench of thiscourt doubted the correctness of those decisions.Learned Judges felt that in those decisions, this courthad permitted 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 powerof the High Court in quashing a criminalproceeding or FIR or complaint in exercise of itsinherent jurisdiction is distinct and differentfrom the power given to a criminal court forcompounding the offences under Section 320 ofthe Code. Inherent power is of wide plenitudewith no statutory limitation but it has to beexercised in accord with the guideline engraftedin such power viz; (i) to secure the ends ofjustice or (ii) to prevent abuse of the process ofany Court. In what cases power to quash thecriminal proceeding or complaint or F.I.R may beexercised where the offender and victim havesettled their dispute would depend on the factsand circumstances of each case and no

category can be prescribed. However, beforeexercise of such power, the High Court musthave due regard to the nature and gravity ofthe crime. Heinous and serious offences ofmental depravity or offences like murder, rape,dacoity, etc. cannot be fittingly quashed eventhough the victim or victim’s family and theoffender have settled the dispute. Suchoffences are not private in nature and haveserious impact on society. Similarly, anycompromise between the victim and offender inrelation to the offences under special statuteslike Prevention of Corruption Act for theoffences committed by public servants whileworking in that capacity etc; cannot provide forany basis for quashing criminal proceedingsinvolving such offences. But the criminal caseshaving overwhelmingly and pre-dominatinglycivil flavour stand on different footing for thepurposes of quashing, particularly the offencesarising from commercial, financial, mercantile,civil, partnership or such like transactions or theoffences arising out of matrimony relating todowry, etc. or the family disputes where thewrong is basically private or personal in natureand the parties have resolved their entiredispute. In this category of cases, High Courtmay quash criminal proceedings if in its view,because of the compromise between theoffender and victim, the possibility of convictionis remote and bleak and continuation of criminalcase would put accused to great oppression andprejudice and extreme injustice would becaused to him by not quashing the criminalcase despite full and complete settlement andcompromise with the victim. In other words, theHigh Court must consider whether it would beunfair or contrary to the interest of justice tocontinue with the criminal proceeding orcontinuation of the criminal proceeding wouldtantamount to abuse of process of law despitesettlement and compromise between the victimand wrongdoer and whether to secure the endsof justice, it is appropriate that criminal case isput to an end and if the answer to the above question(s) is in affirmative, the High Court shallbe well within its jurisdiction to quash thecriminal 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 Section 147, 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.

10. Recently Hon’ble Apex Court in its latest judgment

10. Recently Hon’ble Apex Court in its latest judgment dated 4th October, 2017, titled as Parbatbhai Aahir @ ParbatbhaiBhimsinhbhai Karmur and others versus State of Gujarat andAnother , passed in Criminal Appeal No.1723 of 2017 arising outof SLP(Crl) No.9549 of 2016, reiterated the principles/parameters laid down in Narinder Singh’s case supra foraccepting the settlement and quashing the proceedings. It would be profitable to reproduce para No. 13 to 15 of thejudgment herein:

“13. The same principle was followed in CentralBureau of Investigation v. Maninder Singh (2016)1SCC 389 by a bench of two learned Judges of thisCourt. In that case, the High Court had, in theexercise of its inherent power under Section 482quashed proceedings under Sections 420, 467, 468and 471 read with Section 120-B of the Penal Code.

While allowing the appeal filed by the CentralBureau of Investigation Mr Justice Dipak Misra (as the learned Chief Justice then was) observed thatthe case involved allegations of forgery ofdocuments to embezzle the funds of the bank. Insuch a situation, the fact that the dispute had beensettled with the bank would not justify a recourse to the power under Section 482:“...In economicoffences Court must not only keep in view thatmoney has been paid to the bank which has beendefrauded but also the society at large. It is not acase of simple assault or a theft of a trivial amount;but the offence with which we are concerned is wellplanned and was committed with a deliberatedesign with an eye of personal profit regardless ofconsequence to the society at large. To quash theproceeding merely on the ground that the accusedhas settled the amount with the bank would be amisplaced sympathy. If the prosecution against theeconomic offenders are not allowed to continue, theentire community is aggrieved."

14. In a subsequent decision in State of Tamil Naduv R Vasanthi Stanley (2016) 1 SCC 376, the courtrejected the submission that the first respondentwas a woman “who was following the command ofher husband” and had signed certain documentswithout being aware of the nature of the fraud whichwas being perpetrated on the bank. Rejecting thesubmission, this Court held that:

“... Lack of awareness, knowledge or intent isneither to be considered nor accepted in economicoffences. The submission assiduously presented ongender leaves us unimpressed. An offence under thecriminal law is an offence and it does not dependupon the gender of an accused. True it is, there arecertain provisions in Code of Criminal Procedurerelating to exercise of jurisdiction Under Section437, etc. therein but that altogether pertains to adifferent sphere. A person committing a murder orgetting involved in a financial scam or forgery ofdocuments, cannot claim discharge or acquittal onthe ground of her gender as that is neitherconstitutionally nor statutorily a valid argument. The offence is gender neutral in this case. We say nomore on this score...”

“...A grave criminal offence or serious economicoffence or for that matter the offence that has thepotentiality to create a dent in the financial health ofthe institutions, is not to be quashed on the groundthat there is delay in trial or the principle that whenthe matter has been settled it should be quashed toavoid the load on the system...”

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

(i) Section 482 preserves the inherent powers of theHigh Court to prevent an abuse of the process ofany court or to secure the ends of justice. Theprovision does not confer new powers. It onlyrecognizes and preserves powers which inhere inthe High Court;

(ii) The invocation of the jurisdiction of the HighCourt to quash a First Information Report or acriminal proceeding on the ground that a settlementhas been arrived at between the offender and thevictim is not the same as the invocation ofjurisdiction for the purpose of compounding anoffence. While compounding an offence, the powerof the court is governed by the provisions of Section320 of the Code of Criminal Procedure, 1973. Thepower to quash under Section 482is attracted evenif the offence is non-compoundable.

(iii) In forming an opinion whether a criminalproceeding or complaint should be quashed inexercise of its jurisdiction under Section 482, theHigh Court must evaluate whether the ends ofjustice would justify the exercise of the inherentpower;

(iv) While the inherent power of the High Court hasa wide ambit and plenitude it has to be exercised; (i)to secure the ends of justice or (ii) to prevent anabuse of the process of any court;

(v) The decision as to whether a complaint or FirstInformation Report should be quashed on theground that the offender and victim have settled thedispute, revolves ultimately on the facts andcircumstances of each case and no exhaustiveelaboration of principles can be formulated;

(vi) In the exercise of the power under Section 482and while dealing with a plea that the dispute hasbeen settled, the High Court must have due regardto the nature and gravity of the offence. Heinousand serious offences involving mental depravity oroffences such as murder, rape and dacoity cannotappropriately be quashed though the victim or thefamily of the victim have settled the dispute. Suchoffences are, truly speaking, not private in naturebut have a serious impact upon society. The decisionto continue with the trial in such cases is founded onthe overriding element of public interest inpunishing persons for serious offences;

(vii) As distinguished from serious offences, theremay be criminal cases which have an overwhelmingor predominant element of a civil dispute. Theystand on a distinct footing in so far as the exerciseof the inherent power to quash is concerned;

(viii) Criminal cases involving offences which arisefrom commercial, financial, mercantile, partnershipor similar transactions with an essentially civilflavour may in appropriate situations fall forquashing where parties have settled the dispute;

(ix) In such a case, the High Court may quash thecriminal proceeding if in view of the compromisebetween the disputants, the possibility of aconviction is remote and the continuation of acriminal proceeding would cause oppression andprejudice; and

(x) There is yet an exception to the principle set outin propositions (viii) and (ix) above. Economicoffences involving the financial and economic well-being of the state have implications which liebeyond the domain of a mere dispute between private disputants. The High Court would be justifiedin declining to quash where the offender is involvedin an activity akin to a financial or economic fraud ormisdemeanour. The consequences of the actcomplained of upon the financial or economicsystem will weigh in the balance.

11. It is quite apparent from the aforesaid exposition oflaw 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 Apex-Court 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’bleApex Court has though held that heinous and serious offences ofmental depravity, murder, rape, dacoity etc. cannotappropriately be quashed though the victim or the family of thevictim have settled the dispute, but it has also observed thatwhile exercising its powers, High Court is to examine as towhether the possibility of conviction is remote and bleak andcontinuation of criminal cases would put the accused to greatoppression and prejudice and extreme injustice would be causedto him by not quashing the criminal cases. Hon’ble Apex Courthas further held that Court while exercising power under Section482 Cr.P.C can also be swayed by the fact that settlement between the parties is going to result in harmony between themwhich may improve their future relationship. Hon’ble Apex Courtin its judgment rendered in State of Tamil Nadu supra, hasreiterated that Section 482 preserves the inherent powers of theHigh Court to prevent an abuse of the process of any court or tosecure the ends of justice and has held that the power to quashunder Section 482 is attracted even if the offence is non-compoundable. In the aforesaid judgment Hon’ble Apex Courthas held that while forming an opinion whether a criminalproceedings or complaint should be quashed in exercise of itsjurisdiction under Section 482, the High Court must evaluatewhether the ends of justice would justify the exercise of theinherent power.

12. 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 oflaw as well as the compromise being genuine, this Court has noinhibition in accepting the compromise and quashing the FIRalong with consequential proceedings pending in the Court oflearned Judicial Magistrate, Court No. III, Ghumarwin, DistrictBilaspur, H.P.

13. Accordingly, in view of the discussion madehereinabove, FIR No. 55/18, dated 22.5.2018, under Sections 279and 337 of the IPC, registered at Police Station Bharari, TehsilGhumarwin, District Bilaspur, H.P., and consequentialproceedings pending in the Court of learned Judicial Magistrate,1[st] Class, Court No.III, Ghumarwin, District Bilaspur, H.P.,areordered to be quashed.

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

(Sandeep Sharma) Judge

31[st] December, 2018(reena)