Bhagwan Deen And Another vs State Of U.P. And Another
2018 Latest Caselaw 2190 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									A.F.R.
 
Court No. - 49
 

 
Case :- APPLICATION U/S 482 No. - 29357 of 2018
 

 
Applicant :- Bhagwan Deen And Another
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Arun Kumar Srivastava
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Saumitra Dayal Singh,J.

1. Learned counsel for the applicants is permitted to correct the prayer clause during the course of the day.

2. Heard Sri Arun Kumar Srivastava, learned counsel for the applicants, Sri Istyak Khan, learned counsel for the opposite party no.2 and learned A.G.A. for the State.

3. The present 482 Cr.P.C. application has been filed by the applicants (who are the accused) to quash the entire proceedings of S.T. No. 64 of 2009 (State Vs. Bhagwandeen and others), arising out of Case Crime No. 625 of 2008, under Section 304 I.P.C., Police Station- Badalpur, District- Jaunpur, pending in the court of special Judge E.C.Act, Jaunpur on the ground that the dispute between the parties has been settled through a compromise. A certified copy of such compromise document, that contains two paragraphs, has also been placed on record.

4. Admittedly, the offence alleged is one of the culpable homicide of the father-in-law of the opposite party no.2. In the compromise document relied upon by learned counsel for the applicants, only this much is disclosed that the incident had occurred at the spur of the moment and that certain injuries had been unintentionally caused to the deceased, in that incident.

5. Thereafter, it has been disclosed, at the instance of certain respectable persons of the village and some relatives of the parties, they have resolved their differences and that they are enjoying good relations amongst themselves.

6. In such circumstance, it has been stated that the opposite party no.2 does not wish to press charges against the applicants. Similar averments have also been made in the affidavit filed in support of the present application.

7. Sri Istyak Khan, learned counsel has filed his appearance slip on behalf of the opposite party no.2. Today, he filed a personal affidavit (short counter affidavit), of the opposite party no.2. It is taken on record. He does not dispute the correctness of the submission advanced by the learned counsel for the applicants or the correctness of the documents relied upon by him. In fact, the short counter affidavit discloses that the aforesaid compromise had been entered into between the parties. He submits, in light of that compromise, the opposite party no. 2 has no objection, if the proceedings in the aforesaid case are quashed.

8. Paragraph nos. 2, 6 and 7 of the said short counter affidavit read as under:

"2. That the applicants and opposite party no.2 belongs from same family and due to share of wood of Babool and Neem Tree dispute arose in which deceased Sita Ram sustained injury and died.

6. That during course of trial, the opposite party no.2 being a family member of applicants fell into compromise and after preparation of compromise deed same has been filed before learned trial court on 3.2.2017 with intent to close the aforesaid Session Trial.

7. That in view of above facts as well as material available on record this Hon'ble Court may be pleased to quash the entire proceeding of S.T. No.64 of 2009 (State Vs. Bhagwan and others) arising out of Case Crime No.625 of 2008 under Section 304 I.P.C. at Police Station Badlapur, District Jaunpur pending in the Court of Special Judge E.C. Act, Jaunpur in the light of observation made by Hon'ble Apex Court in the case of Gian Singh Vs. State of Punjab and others), so that justice may be done."

9. Reliance has also been placed by learned counsel for the parties on the decision of the Supreme Court in the Case of Gian Singh Vs. State of Punjab & another reported in 2012 (10) SCC 303. It has been submitted that the prosecution may be dropped in terms of the compromise reached between the parties.

10. Sri Sanjay Kumar Singh, learned AGA for the State on the other hand submits that the informant does not have a vested right to choose to either press or to not press charges against the accused. In as much as the offence alleged is under Section 304 IPC, and further inasmuch as neither the death nor the cause of death are denied, it remains for the State to prosecute the accused. In respect of the affidavit filed by the parties as also the compromise documents produced before this Court, it is submitted, the offence being against the society, it cannot be allowed to go untried.

11. It has further been submitted that the judgment of the Supreme Court being relied upon by the parties are distinguishable and the present prosecution is not liable to be dropped.

12. Having considered the arguments advanced by learned counsel for the parties, it is seen, the Supreme Court in the case of Gian Singh Vs. State of Punjab & another (supra) held as below:

"61. The position that emerges from the above discussion can be summarised 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 or 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 statutes 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 favour 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 proceeding 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".

(emphasis supplied)

13. Further, in the case of Narinder Singh vs. State of Punjab reported in (2014) 6 SCC 466 the Punjab & Haryana High Court had refused to exercise jurisdiction under Section 482 Cr.P.C. and thus refused to quash the prosecution on the ground that four injuries had been suffered by the complainant and as per the opinion of the doctor one of the injuries was serious in nature. From the statement of the injured and the injury report as also in view of the X-ray report the offence under Section 307 IPC had been added subsequent to the FIR being lodged. After considering the earlier precedent in that regard, the Supreme Court observed as under:

"26. Having said so, we would hasten to add that though it is a serious offence as the accused person(s) attempted to take the life of another person/victim, at the same time the court cannot be oblivious to hard realities that many times whenever there is a quarrel between the parties leading to physical commotion and sustaining of injury by either or both the parties, there is a tendency to give it a slant of an offence under Section 307 IPC as well. Therefore, only because FIR/Charge-sheet incorporates the provision of Section 307 IPC 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. We are, therefore, of the opinion that while taking a call as to whether compromise in such cases should be effected or not, the High Court should go by the nature of injury sustained, the portion of the bodies where the injuries were inflicted (namely whether injuries are caused at the vital/delicate parts of the body) and the nature of weapons used etc. On that basis, if it is found that there is a strong possibility of proving the charge under Section 307 IPC, once the evidence to that effect is led and injuries proved, the Court should not accept settlement between the parties. On the other hand, on the basis of prima facie assessment of the aforesaid circumstances, if the High Court forms an opinion that provisions of Section 307 IPC were unnecessary included in the charge sheet, the Court can accept the plea of compounding of the offence based on settlement between the parties.

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29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:

29.1 Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent 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 exercised sparingly and with caution.

29.2 When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, 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 the High Court is to form an opinion on either of the aforesaid two objectives.

29.3 Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by Public Servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.

29.4 On the other, those criminal cases having overwhelmingly and pre-dominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.

29.5 While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.

29.6 Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore are to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead 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 such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the later case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship.

29.7 While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime."

(emphasis supplied)

14. Further, in the case of Yogendra Yadav & others vs. State of Jharkhand & another reported in 2015 (1) JIC 192 (SC) was also a case of involvement of offence under Section 326 and 307 IPC. It was observed as under:

"4. ..... However, when the High Court is convinced that the offences are entirely personal in nature and, therefore, do not affect public peace or tranquility and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, it should not hesitate to quash them. In such cases, the prosecution becomes a lame prosecution. Pursuing such a lame prosecution would be waste of time and energy. That will also unsettle the compromise and obstruct restoration of peace."

15. Then after relying on the decision in the case of Gian Singh Vs. State of Punjab & another (supra), the Supreme Court quashed the prosecution.

16. Last, in the case of Parbatbhai Aahir Vs. State of Gujarat reported in (2017) 9 SCC 641 a three judge bench of the Supreme Court held as below:

"16. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions :

16.1 Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;

16.2 The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.

16.3 In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;

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

16.5 The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;

16.6 In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;

16.7 As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;

16.8 Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;

16.9 In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and

16.10 There is yet an exception to the principle set out in propositions 16.8 and 16.9 above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance. "

(emphasis supplied)

17. In view of the law laid down by the Supreme Court being clear, the informant may be allowed to not press charges and or to withdraw the prosecution and the prosecution may be allowed to be dropped if amongst others the real dispute appears to be a private and civil dispute or such as may have been resolved during the pendency of the criminal proceedings and which dispute may not be one that has an impact on the society at large i.e. at existing and likely social behavior, in future. However, at the same time, the Supreme Court had held that in heinous and serious criminal offences whether arising from crimes against body or property, as may impact the society governed by rule of law, courts may not allow such prosecutions to be dropped even if the complainant/informer may desire to withdraw from the prosecution.

18. Specific to offences related to bodily injuries, it appears the Supreme Court has held, the High Court may consider the nature of injury; cause of injury; weapon used; stage of proceedings; material/evidence collected during investigation and other circumstances, to broadly examine the direction, that the proposed or pending trial may take. If in the totality, it may appear that chances of conviction are bleak, then, even the current relations between the parties may be a relevant consideration for the High Court to consider.

19. In cases involving serious crimes, the person described as the victim remains but the first voice of the society at large. It is the society that is the real victim, since it has to be the society that gets offended the most by the crime alleged. In such situations, the concerns of the society take primacy over those of the individual to whom bodily or other hurt may have been caused, because, the society in the first place had set the rule of good or acceptable civil behavior and prohibited commission of certain acts. The society remains the biggest sufferer by the infringement of its base rule since the underlying foundation of the society also rests on its ability to fairly and efficiently enforce the rules of interaction between its members. Unless the society maintains its uncompromised and dispassionate pre-disposition as also it's absolute commitment to enforce those rules, the raison d'etre for the formation of the society may itself stand compromised. The offended natural person therefore gets the description of a ''victim' more for convenience and formal purposes in court proceedings and less as the individual / person aggrieved.

20. Logically and also legislatively, that individual/person cannot therefore claim any choice or right to either press or to not press charge against the accused. That decision rests with the larger body, i.e. the society of which that person is a member. The individual who receives immediate injury in such cases, does not wield any power or control to decide either the initiation, continuance or termination of prosecution proceedings against the offender. In fact, that person may himself be forced to participate in the proceedings to play his part, so that the offender be brought to justice, by the society, for the good of the society at large.

21. In the instant case, according to the FIR version, on 19.09.2018, at about 2:00 p.m. a dispute arose between the deceased and the applicants over sharing of wood of certain 'Babool' and 'Neem' trees that dispute flared up wherein Bhagwan Deen and Thakur Prasad (the present applicants) assaulted the deceased and caused injuries on his head. The villagers first took the deceased to the primary health center from where he was referred to the district hospital and the deceased died on way to that hospital. No other document or material had been brought on record. In such facts, it appears that the deceased must have been severely assaulted or in any case, assaulted in a manner as resulted in a serious injury being caused on a vital part of his body being the skull. It also appears that the deceased died as a direct result of the injuries thus suffered by him.

22. Also, the occurrence of culpable homicide and/or the cause of death being injuries received are not denied and it is not the case of the informant that such allegations had been wrongly made against the accused, owing to any misunderstanding or misgiving or any other like circumstance as may give rise to a serious doubt as to the real occurrence, that occurrence has to be assumed to be existing. If at all the compromise document and the affidavit of the opposite party no. 2 corroborate such fact. It is difficult for this Court to allow such a prosecution to be dropped though the individual parties claim to have resolved their dispute over wood of ''Babool' and 'Neem' tree. At present that dispute appears to have offered the immediate cause for the occurrence but that is not the dispute itself, in the trial pending against the applicants.

23. The parties may claim to stand pacified and to be living in peaceful co-existence. However, the fact remains that the loss of human life in the incident that was disclosed to be a petty dispute over some property cannot be ignored or forgotten, in light of subsequent conduct offered by the parties. If such matters are allowed to be settled and prosecution allowed to be dropped so lightly, it may not only send a wrong signal to the society at large that such and other disputes may first be resolved through violence at the cost of human life and later settled, but such practice, if allowed, may negate or at least irreversibly dilute the foundational values of our society. Also, it cannot be lost sight of that case with passage of time informant may succumb to various circumstances and factors besides open and other threats and inducements that are not required to be gone into at this stage. In the present case, it is seen that the opposite party no.2 is the daughter-in-law of the deceased. Her statement of having made peace with the offenders does not inspire the confidence of the court in light of the offence alleged.

24. Thus, in the facts of the case and in view of the principle laid down by the Supreme Court, since the offence alleged is one under section 307 IPC and since neither the factum of death nor the assault that was the cause of such death are denied, the offence alleged would qualify as a serious offence against the society. The opposite party no. 2 who is the daughter in law of the deceased is not the only person aggrieved. The crime alleged is against the society at large. The compromise reached between the individuals cannot bind the society against whom the offence had been committed. From the societal perspective, such a compromise has to be looked down upon. If accepted it may incentivize or promote such and similar crimes as a method or means to solve disputes and differences and later seek escape from criminal prosecution in the garb of a compromise that may arise for a variety of undesirable and unacceptable reasons. Acceptance to such compromise may only lead to rule of might over right, an idea that has to rejected and denied absolutely.

25. Consequently the application must fail and is dismissed. However, the prosecution proceedings may continue unaffected/influenced by any observation made in this order. Further, it is clarified that the learned court below may decide the case before it only on the basis of evidence that may arise in that case, without being influenced by the facts stated in the compromise document and the affidavit filed in support there of, in these proceedings.

Order Date :- 28.8.2018

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