Dinesh Pathak vs State Of U.P. & Others
2014 Latest Caselaw 6394 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
AFR
 
Court No. - 53
 
Case :- APPLICATION U/S 482 No. - 9665 of 2003
 
Applicant :- Dinesh Pathak
 
Opposite Party :- State Of U.P. & Others
 
Counsel for Applicant :- A.B. Sinha
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Virendra Vikram Singh,J.

Heard learned counsel for the applicant and learned AGA for the State.

By moving the present application under Section 482 Cr.P.C., the applicant has prayed that proceedings of the Case No.3498/IX/2003 (State Vs. Dinesh Pathak) under Section 307 I.P.C., pending in the Court of C.J.M., Mathura, be quashed.

While the application was produced before this Court, the Court granted stay by its order dated 19.11.2003, hence, despite lapse of more than a decade, the matter still survives.

It has been argued on behalf of the applicant that the compromise has been entered into between the parties. All the witnesses of fact including the injured have given their affidavits in favour of the applicant. It has also been asserted that even during investigation, statements recorded by the earlier investigating officer did not show the name of the applicant to be among the miscreants, hence, the proceedings needs be quashed.

Learned AGA raised initial objection that the offence in question is under Section 307 I.P.C. which is a grave offence for which compromise cannot be entered into in view of provision of Section 320 of the Code of Criminal Procedure (to be referred to as Code, hereinafter)

The controversy which appears in the present case is whether a criminal case, for an offence which is not provided to be compoundable under the provisions of Section 320 of the Code can be permitted to be compounded while entertaining powers under Section 482 Cr.P.C. by the High Court.

Section 320 Cr.P.C. of the Code provides two different list of offences. The first relates to the offences, which can be compounded between the parties without obtaining any permission from the court and, thus, these offences are compoundable without the permission of the Court, or that for these offences the parties have right to close the prosecution in view of the compromise between the parties.

The other set of offences are those which can be compounded with the permission of the Court.

It is true and not disputed that Section 307 I.P.C. is not mentioned in any of the list in Section 320 of the Code, hence, while exercising powers under Section 320 Cr.P.C., the subordinate Courts cannot permit compounding of such offence.

Now the question arises that whether this Court while exercising powers under Section 482 Cr.P.C., can permit compounding of offences and can quash criminal proceedings in view of the compromise between the parties.

In the case of B.S.Joshi and others Vs. State of Haryana and another, A.I.R. 2003 SC 1386, it was considered by the Hon'ble Apex Court that while exercising powers under Section 482 of the Code, the Court can permit the compounding of such offences, which is not mentioned in the two lists under Section 320 of the Code. In the case under question, the offences related to matrimonial litigation and the Court quashed the proceedings of the case in view of the compromise between the parties to the marriage, despite the fact that the offence were not shown in the lists of Section 320 of the Code.

Subsequent to the decision of the case of B.S.Joshi (Supra), the same situation arisen in the case of Nikhil Merchant Vs. Central Bureau of Investigation and another, A.I.R. 2009, Supreme Court, 428, whereby for an offence under Sections 420, 467, 468, 471 I.P.C. & Section 5(2) and Section 5(1)(d) of the Prevention of Corruption Act, 1947, the proceedings were permitted to be quashed in view of the compromise between the parties. It was held that the basic intention of the accused in this case was to misrepresent the financial status of the company in order to avail the credit facilities to an extent to which the company was not entitled. It was held that the offence was of a private nature and since the parties have entered into compromise, the proceedings of the case were quashed by Hon'ble the Apex Court.

The correctness of the two cases cited above was suspected and the matter was referred for re-consideration to a larger Bench. While pronouncing the judgment, the larger Bench in the case of Gian Singh Vs. State of Punjab and another, (2012)10, SCC, 303 has held that the inherent powers under Section 482 is intended to prevent the abuse of the process of the Court and to secure ends of justice. Such powers cannot be exercised to do something which is expressly barred under the code.

It was next considered whether the exercise of powers to permit compounding of offence under Section 482 Cr.P.C. is the same power as provided under Section 320 Cr.P.C. While deciding this question, Hon'ble Apex Court has held as follows:-

"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."

Even though, the Court in the judgement of Gian Singh (Supra) has summarized that the power of the High Court in quashing criminal proceedings or F.I.R. or complaint exists but 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.

After pronouncement of the case of Gian Singh, the situation has again arisen as to whether a case under Section 307 I.P.C. can be permitted to be compounded in view of the compromise between the parties.

In the case of Dimpey Gujral Vs. UT Chandigarh (2013) 11 SCC, 497, the Court quashed the proceedings in the case under Sections 147, 148, 149, 323, 307, 452 and 506 I.P.C, even after framing of charge for these offences, while holding that the offences involved in the case are of a personal nature and are not offences against the society, the proceedings were quashed.

In the recent judgement of Hon'ble the Apex Court in Narendra Singh and others Vs. State of Punjab and another (2014) 6 SCC, 466, Hon'ble the Apex Court again discussed the same matter as to whether the proceedings of the case under Section 307 I.P.C. can be quashed in view of the compromise between the parties.

In this case the pronouncement of the Apex Court in the case of Gian Singh (Supra) were upheld and the proceedings under Section 307 I.P.C. were quashed in view of the compromise between the parties while holding that the offence in question was personal in nature and the settlement between the parties lead to more good relation between them would prevent further occurrence or such in connection between the parties. It was also held that such proceedings can be quashed if the offences are of a personal nature and does not effect the society as a whole.

So far as the quashing of proceedings for the offence of Section 307 I.P.C., Hon'ble the Apex Court has held as follows:-

"Therefore, only because F.I.R./Chargesheet incorporates the provision of Section 307 I.P.C. would not, by itself, be a ground to reject the petition under Section 482 of the Code and refuse to accept the settlement between the parties".

However, it has been provided that while quashing the proceedings, the Court are supposed to examine the facts of each case and only thereafter, the order for quashing the proceedings can be passed.

The discussion of the different case laws cited above makes it abundantly clear that the offences which are not enumerated under the tables in Section 320 of the Code, the proceedings can be quashed by the High Court in exercise of the powers under Section 482 Cr.P.C. while taking into consideration the settlement between the parties, if the offence is of a personal nature. It has been held that the Court can also order for quashing the proceedings of a case under Section 307 I.P.C if the facts and circumstances of the case call for the same and justify the order for betterment of relations between the parties.

In view of the legal proposition of law laid down, the Court proposes to examine the facts of the present case.

The offence in question relates to the year 2000. On 22.4.2000, Ballabh Chaube, since deceased, lodged a report nominating the applicant and three others, who indiscriminately fired and causing fire arm injury to him and Basant Lal in a marriage proceedings. It is admitted that the applicant Dinesh Pathak, is none else but the 'dewar' of the sister of the applicant. The complainant appears to have realised his mistake and moved affidavit to the investigating officer that he did not see the present applicant Dinesh Pathak among the miscreants. Same affidavits were given by the other injured Basant Lal and other witnesses mentioned in the report. The initial statement recorded by the investigating officer also goes to show that the statement of witnesses did not nominate the applicant among the miscreants. Not only this that the complainant and witnesses filed their affidavit before the investigating officer which has been filed as annexures to the present application, the complainant/injured Ballabh Chaube also filed the Writ Petition No.4566 of 2002 before this Court, alongwith his affidavit as also the affidavit of other witnesses which they gave before the investigating officer. In para 4 of the affidavit of Ballabh Chaube appended to the writ petition, following has been sweared :-

"That the petitioner very well knew and identify Dinesh Pathak @ Gular Pathak. It is submitted that among the bunch of those persons, Dinesh Pathak @ Gular Pathak was not there. The petitioner got the name mentioned in the F.I.R. on the basis of information given to him by some other persons."

In para 6, the informant Ballabh Chaube also mentioned Dinesh Pathak @ Gular Pathak is the real 'Dewar' of the petitioner's real sister.

The intention of the complainant Ballabh Chaube while filing Criminal Misc. Writ Petition No.4566 of 2002 was to impress upon the investigating officer to drop the proceedings against the present applicant but despite the orders of the High Court for expeditious conclusion of the investigation, the purpose of the complainant Ballabh Chaube could not be served as the investigating officer while ignoring the affidavits of Ballabh Chaube, the complainant and other witnesses submitted chargesheet against them, hence, the applicant has to approach this Court for quashing the proceedings. By repeated affidavits all these witnesses have asserted that they never nominated the present applicant Dinesh Pathak, in their statements to the investigating officer. Thus, in any case the nomination of the present applicant in the statement to the investigating officer and his participation in the offence stands negated.

Basant Lal, the complainant of the case died of a natural death.

While the case was listed for hearing, Smt.Sarda Chaturvedi, the wife of the complainant Ballabh Chaube, filed her affidavit about the false implication of the applicant and she also mentioned that she does not want to pursue the criminal case against the applicant Dinesh Pathak @ Gular Pathak any more and she would have no objection whatsoever if his name be dropped among the array of accused persons.

The injured Basant Lal has also filed the affidavit with the averment that he did not see the present applicant among the miscreants and further that he does not want to pursue the aforesaid criminal case against the applicant Dinesh Pathak @ Gular Pathak.

Thus, the injured Basant Lal in person and the legal representative of the other injured Ballabh Chaube have compounded the offence with the present applicant.

Section 320(4)(b) Code permits that the offence can be compounded by the legal representative.

The facts of the case categorically tells that the compromise has been entered into between the injured persons and the present applicant and the injured persons do not want to prosecute the present case at all. It is again proper to mention it here that both the injured persons and all the witnesses have given their affidavits that they did not see the present applicant among the miscreants, who fired and caused injuries to Ballabh Chaube and Basant Lal.

Ballabh Chaube, injured in the case, since deceased, was very close relative of the applicant, as mentioned earlier. The other injured Basant Lal has also submitted his affidavit showing the innocence of the applicant. It is evident that the parties have entered into compromise because of the closeness of relations and further that the applicant was not among the miscreants. The offence in question is of a personal nature and both the two injured have exonerated the applicant to have committed the offence and the parties have entered into compromise in view of the fact that the one injured is died now and the other injured and the witnesses have submitted their affidavits showing the innocence of the applicant. The chances of conviction of the applicant in the case are not only bleak but rather no conviction can be recorded in this case. The offence relates to the year 2000 and now when 14 years have already elapsed and the parties to the offence have settled their dispute through mutual negotiations, it does not appear just and expedient that the matter be re-opened and the parties be thrown to criminal litigation for an occurrence they have already negotiated and have expressed their view that the applicant is innocent.

Having considered the facts and circumstances of the case, as also feeling commanded by the mandate of the Apex Court, as discussed earlier, the Court is just and expedient that the proceedings of the Criminal Case 3498/IX/2003 (State Vs. Dinesh Pathak) under Section 307 I.P.C., pending in the Court of C.J.M., Mathura, be quashed.

The application deserves to be allowed.

The application is hereby allowed.

The proceedings of the case No.3498/IX/2003 (State Vs. Dinesh Pathak) under Section 307 I.P.C., pending in the Court of C.J.M., Mathura, against the applicant are, hereby, quashed.

It is being made clear that the Court has passed this order in relation to applicant Dinesh Pathak alone. If the proceedings are pending against other accused persons in respect of this case, they shall remain unaffected by the present order.

Order Date :- Dated September 12 , 2014.

SKD