Mohit vs State Of U.P. Thru. Prin. Secy. ...
2021 Latest Caselaw 3184 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 31
 

 
Case :- U/S 482/378/407 No. - 551 of 2021
 

 
Applicant :- Mohit
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home. Lko & Others
 
Counsel for Applicant :- Anurag.S.'Kaalesh'
 
Counsel for Opposite Party :- G.A.,Jeevendra Kumar Rathore
 

 
Hon'ble Narendra Kumar Johari,J.

The verification order of the trial court has been submitted with application by the learned counsel for the applicant today which is taken on record.

Sri Anurag.S. Kaalesh, learned counsel for the applicant, Sri Jeevendra Kumar Rathore, learned counsel for opposite party no. 2 and learned AGA are present.

This petition under Section 482 Cr.P.C. has been filed for quashing of the charge sheet dated 13.11.2016 in Case Crime No. 243/2016, under Section 354 IPC and 7/8 POCSO Act, P.S. Madiaon, District Lucknow as well as proceedings of Criminal Case bearing S.T. No. 451 of 2016 (State Vs. Mohit) and summoning orders dated 1.10.2019 and 7.1.2020 passed by Additional District Judge XV, Lucknow and recent order dated 25.1.2021 by means of that the applicant has been summoned through N.B.W. to face the trial pending in the Court of Special Judge POCSO Act, Lucknow and to stay the further proceedings in aforesaid criminal case.

It is submitted by learned counsel for the applicant that the applicants and opposite party no. 3 are well known to each other personally. It is further submitted that there was a love affair between applicant and opposite party no. 3 which was not consented by father of opposite party no. 3 (who is party as opposite party no. 2), therefore, the opposite party no. 2 had lodged a false FIR against the applicant with exaggeration and as such the applicant has challenged the summoning orders of aforesaid criminal case.

It is next submitted that during the pendency of the criminal case, the good sense has been prevailed in between the parties and they have arrived at a compromise as the dispute was of private in nature which has no grave social effect. If the criminal proceedings in pursuance of the aforesaid FIR will continue, no fruitful purpose will serve.

Vide order dated 8.2.2021, this court directed the applicant to submit the deed of compromise before court concerned for verification in accordance with law which has been duly verified by court concerned vide its order dated 18.2.2020 which is annexed as Annexure-1 with the application dated 8.3.2021.

Learned counsel for the opposite party no. 2 has not opposed the prayer rather he submitted that the parties have settled their dispute amicably and now no grievance is left in between the parties against each other. If the petition is allowed in terms of compromise and the charge sheet as well as summoning orders of the Court which are subject matter of the petition are quashed then in that case, the opposite party no. 2 has no objection.

Learned AGA also has not opposed the prayer of counsel for the applicant.

Both the parties have arrived at a compromise. In such a matter, the Court has inherent jurisdiction to pass a suitable order as may be necessary to prevent the abuse of process of subordinate court and to secure the ends of justice.

The co-ordinate Bench of this Court in the case of Dinesh Sharma and Ors.Vs. State of U.P and Ors. [2017(Suppl.)ADJ 613] has held in para 7 which reads as under:

"7. A perusal of the case law referred herein above makes it very clear that the Hon'ble Supreme Court has lent its judicial countenance to the exercise of inherent jurisdiction in such matters so that the abuse of the Court's process may be averted. Even in the cases which involved non compoundable offences their quashing has been approved by the Apex Court if the nature of the offence is such which does not have grave and wider social ramifications and where the dispute is more or less confined between the litigating parties. A criminal litigation emanating from matrimonial dispute has been found to be the proceedings of the same class where the inherent jurisdiction of this Court may be suitably exercised if the parties inter-se have mutually decided to bury the hatchet and settle the matter amicably in between them. There are many other litigations which may also fall in the same class even though they do not arise out of matrimonial disputes. Several disputes which are quintessentially of civil nature and other criminal litigations which do not have grave and deleterious social fall-outs may also be settled between the parties. In such matters also when parties approached the Court jointly with the prayer to put an end to the criminal litigations in which they had formerly locked their horns, or if the record or the mediation centre's report indicates a rapprochement in between the parties, the Court in the wider public interest may suitably exercise its power and terminate the pending proceedings. Such positive exercise of the inherent jurisdiction can also find its vindication in a more pragmatic reason. When the complainant of a case or the victim of the offence itself expresses its resolve not to give evidence against the accused in the back drop of the compromise between the parties inter-se or if the fact of inter-se compromise in between the parties is apparent on the face of record, and they are still called upon to depose in the Court, they in all probability, go back on their words and resile from their previous statements, the truthfulness of which is best known only to themselves. They are in such circumstances very likely to eat their words and perjure themselves. The solemn proceedings of the Court often get reduced to a sham exercise and farce in such circumstances. The proceedings can hardly be taken to their logical culmination and in such circumstances, the prospect of the conviction gets lost. In all probability, the trial becomes a futile exercise in vain and the precious time of Court is attended with nothing except a cruel wastage. Of course, there are crimes which are the offences against the State and the inter-se compromise between the litigants cannot be countenanced with and the Court despite the rapprochement arrived at in between the parties, would still not like to terminate the prosecution of the culprits. There are crimes of very grave nature entailing far reaching deleterious ramifications against the society. In those matters, the Courts do not encourage either mediation or a compromise through negotiation and even the Apex Court has carved out exceptions and did not approve the quashing of non-compoundable offences regardless of their gravity. The Courts have to be discreet and circumspect and must see whether the exercise of inherent jurisdiction is indeed serving the ends of justice or to the contrary defeating the same."

In present case, if despite compromise, parties of litigation be compelled to prosecute and to face the trial, no useful purpose will be served.

On the point another Bench of this Court had occasioned to discuss the power of the Court under Section 482 Cr.P.C. in the case of Nazmul Hasan and Ors. Vs. State of U.P. & Ors. [2018 (7) ADJ 245] in which it has held in paras 15 and 16 which read as under:

"15. Considering the compromise arrived at between the parties on 7.5.2018, as extracted above in paragraph 5 and the categorical stand of the opposite party No. 3 before this Court, we are of the considered opinion that no useful purpose would be served in continuation of criminal proceedings in pursuance of the impugned First Information Report lodged by opposite party No. 3. Accordingly, it would be appropriate, in the facts and circumstances of the case, to quash the impugned First Information Report as continuation of the proceedings of the First Information Report would be a futile exercise.

16. We, therefore, allow the writ petition and quash the proceedings of the First Information Report dated 14.9.2017, vide Case Crime No. 0404 of 2017, under Sections 498-A, 323, 377, 506 of Indian Penal Code and Section 3/4 of Dowry Prohibition Act, 1961 at Police Station Saadatganj, District Lucknow, lodged by Smt. Anjum Rizvi-the opposite party No. 3."

In the case of Jitendra Raghuvanshi and Ors. Vs. Babita Raghuvanshi and Ors. [2013 (4) ADJ 40] in which the Apex Court considering the previous judgments of the Supreme Court has held that the criminal proceedings can be quashed by this court under its inherent power on the basis of mutual settlement. The relevant paras of the case are reproduced as under:

"11. The inherent powers of the High Court Under Section 482 of the Code are wide and unfettered. In B.S. Joshi (supra), this Court has upheld the powers of the High Court Under Section 482 to quash criminal proceedings where dispute is of a private nature and a compromise is entered into between the parties who are willing to settle their differences amicably. We are satisfied that the said decision is directly applicable to the case on hand and the High Court ought to have quashed the criminal proceedings by accepting the settlement arrived at."

The co-ordinate Bench of this Court in the case of Ashish Chand Vs. State of U.P. and Ors. (Application U/S 482 No. 31052 of 2019 decided on 13.8.2019) in which it has been held that the charge sheet of criminal case can be quashed on the basis of mutual settlement. The relevant paras of the case are reproduced as under:

"12.The Apex Court recently in a judgment dated 5.3.2019 rendered by a Bench of three Hon'ble Judges in case of State of Madhya Pradesh Vs. Laxmi Narayan and others [2019 (AIR) SC 1296] considering previous judgments and section 320 Cr.P.C. has laid down guideline for exercising the jurisdiction under Section 482 Cr.P.C. in case of settlement of dispute between the accused and complainant. The para 13 of the said judgment is reproduced herein-below:

"13. Considering the law on the point and the other decisions of this Court on the point, referred to hereinabove, it is observed and held as under:

i) that the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves;

ii) such power is not to be exercised in those prosecutions which involved 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;

iii) similarly, such power is not to be exercised for the offences under the special statutes like 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;

iv) offences under Section 307 IPC and the Arms Act etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone, and therefore, the criminal proceedings for the offence under Section 307 IPC and/or the Arms Act etc., which have a serious impact on the society cannot be quashed in exercise of powers under Section 482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves. 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 framing 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. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paragraphs 29.6 and 29.7 of the decision of this Court in the case of Narinder Singh (supra) should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove;

v) while exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offences, which are private in nature and do not have a serious impart on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise etc."

13. Considering the facts and circumstances of the case, as on date in the light of dictum and guideline laid down by the Apex Court as mentioned above, I think the interests of justice would be met, if the prayer of parties is acceded to and the criminal proceedings and other litigation between the parties is brought to an end.

14. On making settlement between the parties in a matrimonial dispute, the chance of ultimate conviction is bleak and therefore, no useful purpose is likely to be served by allowing a criminal prosecution against the applicants to continue.

15. In view of the above, the charge-sheet No. 41 of 2015 dated 15.2.2015 in Case No. 2686 of 2016 arising out of Case Crime No. 183 of 2014 under Sections 498A,323 IPC, P.S.-Mahila Thana, District-Ghaziabad, pending in the court of Additional Chief Judicial Magistrate-VIII, Ghaziabad, is hereby quashed."

The Apex Court in the case of Shiji @ Pappu and Ors. Vs. Radhika and another [2011 CJ (SC) 239] has scrutinized the legal position in case of compromise in criminal cases in which the dispute was private in nature and continuation of proceeding will be sheer abuse of process of law and in this context the technicality should not be allowed to stand in the way of quashing criminal proceeding. Although the power should be used by the court sparingly. It has been held by Apex Court by referring the previous judgments that:

"11. That brings to the decision of this Court in Madan Mohan Abbot' case (supra)whereby the High Court had declined the prayer for quashing of the prosecution for offences punishable under Sections 379, 406, 409, 418, 506/34 IPC despite a compromise entered into between the complainant and the accused. The High Court had taken the view that since the offence punishable under Section 406 was not compoundable the settlement between the parties could not be recognized nor the pending proceedings quashed. This Court summed up the approach to be adopted in such cases in the following words:

"6. We need to emphasise that it is perhaps advisable that in disputes wherethe question involved is of a purely personal nature, the court should ordinarily accept the terms of the compromise even in criminal proceedings as keeping the matter alive with no possibility of a result in favour of the prosecution is a luxury which the courts, grossly overburdened as they are,cannot afford and that the time so saved can be utilis`ed in deciding more effective and meaningful litigation. This is a common sense approach to the matter based on ground of realities and bereft of the technicalities of the law.

7. We see from the impugned order that the learned Judge has confused compounding of an offence with the quashing of proceedings. The outer limit of Rs 250 which has led to the dismissal of the application is an irrelevant factor in the later case. We, accordingly, allow the appeal and in the peculiar facts of the case direct that FIR No. 155 dated 17-11-2001 PS Kotwali,Amritsar and all proceedings connected therewith shall be deemed to be quashed."

12. To the same effect is the decision of this Court in Nikhil Merchant v. CBIMANU/SC/7957/2008 : 2008 (9) SCC 677 where relying upon the decision in B.S.Joshi (supra), this Court took note of the settlement arrived at between the parties and quashed the criminal proceedings for offences punishable under Sections 420,467, 468 and 471 read with Section 120B of IPC and held that since the criminal proceedings had the overtone of a civil dispute which had been amicably settled between the parties it was a fit case where technicality should not be allowed to stand in the way of quashing of the criminal proceedings since the continuance of the same after the compromise arrived at between the parties would be a futile exercise.We may also at this stage refer to the decision of this Court in Manoj Sharma v.State and Ors. MANU/SC/8122/2008 : (2008) 16 SCC 1. This Court observed:

"8. In our view, the High Court's refusal to exercise its jurisdiction under Article 226 of the Constitution for quashing the criminal proceedings cannot be supported. The first formation report, which had been lodged by the complainant indicates a dispute between the complainant and the accused which is of a private nature. It is no doubt true that the first information report was the basis of the investigation by the police authorities, but the dispute between the parties remained one of a personal nature. Once the complainant decided not to pursue the matter further, the High Court could have taken a more pragmatic view of the matter.

9. As we have indicated herein before, the exercise of power under Section482 Code of Criminal Procedure of Article 226 of the Constitution is discretionary to be exercised in the facts of each case. In the facts of this case we are of the view that continuing with the criminal proceedings would be an exercise in futility."

13. It is manifest that simply because an offence is not compoundable under Section320 IPC is by itself no reason for the High Court to refuse exercise of its power under Section 482 Code of Criminal Procedure. That power can in our opinion be exercised in cases where there is no chance of recording a conviction against the accused and the entire exercise of a trial is destined to be an exercise in futility. There is a subtle distinction between compounding of offences by the parties before the trial Court in appeal on one hand and the exercise of power by the High Court to quash the prosecution under Section 482 Code of Criminal Procedure. on the other. While a Court trying an accused or hearing an appeal against conviction, may not be competent to permit compounding of an offence based on a settlement arrived at between the parties in cases where the offences are not compoundable under Section320, the High Court may quash the prosecution even in cases where the offences with which the accused stand charged are non-compoundable. The inherent powers of the High Court under Section 482 Code of Criminal Procedure. are not for that purpose controlled by Section 320 Code of Criminal Procedure. Having said so, we must hasten to add that the plenitude of the power under Section 482 Code of Criminal Procedure. by itself, makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the power itself demands that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. It is neither necessary nor proper for us to enumerate the situations in which the exercise of power under Section 482 may be justified. All that we need to say is that the exercise of power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse Not the process of law. The High court may be justified in declining interference if it is called upon to appreciate evidence for it cannot assume the role of an appellate court while dealing with a petition under Section 482 of the Code of Criminal Procedure. Subject to the above, the High Court will have to consider the facts and circumstances of each case to determine whether it is a fit case in which the inherent powers may be invoked."

In view of above, considering the submission of both the parties and judgments of Apex Court as well as of this Court, in the opinion of the Court, the High Court has ample power under its inherent jurisdiction to quash the criminal proceedings in which the parties have settled their disputes which are of private in nature and have no any grave impact on the society. The time of courts is very precious which should not be wasted in any futile proceedings where the chance of conviction is bleak.

Accordingly, the application under Section 482 Cr.P.C. is allowed. The charge sheet submitted by the police in Crime No. 243/2016, under Section 354 IPC and 7/8 POCSO Act, P.S. Madiaon, District Lucknow as well as summoning orders dated 1.10.2019 and 7.1.2020 passed by Additional District Judge XV, Lucknow and order dated 25.1.2021 by means of that the applicant has been summoned through N.B.W. to face the trial pending in the Court of Special Judge POCSO Act, Lucknow are hereby quashed. 

Order Date :- 8.3.2021

AKK