Ali Mohammad & Others vs State Of U.P. & Others
2021 Latest Caselaw 3864 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R
 
Court No. - 28
 
Case :- U/S 482/378/407 No. - 1367 of 2021
 
Applicant :- Ali Mohammad & Others
 
Opposite Party :- State Of U.P. & Others
 
Counsel for Applicant :- Devendra Pratap
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vikas Kunvar Srivastav,J.

1. The case is called out.

2. Learned counsel for the applicants, Sri Devendra Pratap, Advocate and learned A.G.A. for the State, Sri S.P. Tiwari, Advocate are present in the Court.

3. The present application is moved on behalf of the applicants to quash the criminal proceeding in Session Trial No.26/2018, arising out of Case Crime No.858/2015, under Sections 323, 504, 308, 325 I.P.C., Police Station- Kotwali City, District- Hardoi pending before Additional Sessions Judge, Court No.11, Hardoi on the basis of compromise.

4. Sri Shashank Singh, Advocate holding brief of Ms. Anita Singh Nagore, Advocate, put his appearance on behalf of the opposite parties no.2 to 4 through their Vakalatnama, the same is taken on record. Office is directed to get registered the same and duly place on record.

5. Learned counsels for the accused-applicants drew the attention of the court towards their earlier application under Section 482 Cr.P.C. in Crl. Misc. Case No.666/2021, wherein they expressed their willingness to amicably settle their family dispute, by reason of which criminal proceedings in Session Trial No.26/2018 (State Vs. Rahman and Ors.), Case Crime No.858/2015 under Sections 323, 504, 308, 325 I.P.C., Police Station- Kotwali City, District- Hardoi.

6. In view of the willingness of complainants also to amicably settle their dispute, this Court vide its order dated 18.2.2021 in the aforesaid application (Annexure No.1) issued following direction:-

"In view of above, it is directed that the applicants will produce the compromise deed before trial court within two weeks who will fix a date for appearing of both the parties before court concerned and verify the compromise in presence of all the parties to the litigation in accordance with law.

The applicants may take the certified copy of the order of verification of compromise to the court concerned and may approach to this Court for their further remedy.

With the aforesaid direction, the application is disposed of.

Office is directed to provide original compromise deed to the counsel for the applicants in accordance with rules."

7. It is alleged in the instant application under Section 482 Cr.P.C. that the rival parties to aforesaid Sessions Trial No.26/2018 have entered into compromise to settle their all disputes. However, the materials placed on record is lacking the FIR of the incident which may help to gather the nature of the incident, with regard to which FIR was filed by the complainant. However, in para-3 of the application, it is averred by the accused-applicants that, both the parties are family members and with the permission of Hon'ble High Court, compromise was verified by learned court below.

8. From perusal of the direction dated 18.2.2021 passed by this court in Crl. Misc. Case No.666/2021 under Section 482 Cr.P.C. (Ali Mohammad & Ors. Vs. State of U.P. & Ors.) and the prayer made in the instant application, it can be appreciated with all certainty that the matter alleged to have been settled amicably between the rival parties to the criminal proceeding of Sessions Trial No.26/2018, instituted upon Case Crime No.858/2015 (State Vs. Rahman & Ors.) under Sections 323, 504, 308 and 325 I.P.C., Police Station- Kotwali City, District- Hardoi. Further, pursuant to the direction dated 18.2.2021, when the rival parties to the aforesaid criminal proceeding in Sessions Trial No.26/2018, personally appeared before the trial court alongwith their compromise agreement for verification, a report was made by the trial court on 2.3.2021 (Annexure No.2). The report reveals that the compromise was taken on record in view of the direction dated 18.2.2021 passed by this Court in Crl. Misc. Case No.666/2021. The signatories of the compromise agreement were personally present before the trial court for presentation of their compromise agreement. Learned counsels for the respective rival parties to the criminal proceeding in the Sessions Trial No.26/2018, identified them. Lastly, the trial court recorded its satisfaction that compromise was entered between the signatories of compromise agreement with their free will without any coercion or undue pressure. The compromise agreement is signed by all the parties to the incident namely the complainant, the injured and the accused-applicants.

9. In para-3 of the instant application, it is very clearly stated that they are family members and as such they prayed to decide the case on the basis of compromise.

10. On perusal of the Annexure No.2, the compromise agreement, though have not expressly stated about the dispute between the parties to the agreement i.e., the present accused-applicants and the opposite party nos.2 to 4, but so far as the intent to settle their dispute is concerned, it is obvious on the face of agreement, that they do not want to continue anymore with the Sessions Trial No.26/2018 arising out of Case Crime No.858/2015, under Sections 323, 504, 308, 325 I.P.C., Police Station- Kotwali City, District- Hardoi.

11. The compromise agreement is thus, lawful agreement. The compromise involves the criminal case being tried upon in Sessions Trial No.26/2018 under Sections 323, 504, 308, 325 I.P.C. The offence under Section 323 I.P.C. provides punishment for voluntarily causing hurt and it is made compoundable in the Code of Criminal Procedure, 1973, on the instance of person to whom the hurt is caused. Likewise, the offence under Section 325 I.P.C. is with regard to voluntarily causing grievous hurt and it is also made compoundable on the instance of person to whom such hurt is caused with the leave of the court. The offence under Section 504 I.P.C. is with regard to the intentional insult with the intent to provoke breach of peace is also made compoundable on the instance of person insulted. Lastly, the offence under Section 308 I.P.C. is with regard to the attempt to commit culpable homicide. The said Section of 308 I.P.C. is not compoundable offence either with or without leave of the court, as such, it is clear that except offence under Section 308 I.P.C., all other offences with which the accused-applicants are arraigned in Sessions Trial No.26/2018 are compoundable by the trial court under Section 320 Cr.P.C. Though, the parties to the instant application before this Court are willing to drop the criminal proceeding under the aforesaid sessions trial on the basis of their amicable settlement by way of compromise. It is not possible for the trial court to drop the proceeding by reason of it lacking the competence of compounding the offence under Section 308 I.P.C.

12. In view of the above circumstances, it would be in the interest of justice to take into consideration, the compromise of the rival parties i.e., accused-applicants and opposite party nos.2 to 4 to the instant application for the purpose of dropping of the criminal proceeding in view of the law laid down by Hon'ble Apex Court in the case of Gyan Singh Vs. State of Punjab & Anr. reported in 2012 (10) SCC 303, if the signatories of the duly verified lawful agreement of compromise be not permitted to settle their dispute on the basis of compromise and the proceeding of the Sessions Trial No.26/2018 be not quashed, accordingly, the entire exercise of the trial court in continuance of the sessions trial would be futile and against the wishes of the parties. Moreover, none of the offences are heinous offence affecting public at large, the parties being members of the family, it would be just and proper to allow their prayer for quashing of the charge-sheet No.74/2015 and criminal proceeding in Sessions Trial No.26/2018 under Sections 323, 504, 308, 325 I.P.C. They have no other criminal case between them, therefore, they are entitled to live peacefully as family members in the society.

13. In Gian Singh Vs. State of Punjab and Anr. (Supra), Hon'ble Apex Court in para 41, 42 and 43 has held as under:-

"41. In Rajiv Saxena and others v. State (NCT of Delhi) and another (2012) 5 SCC 627, this Court allowed the quashment of criminal case under Sections 498-A and 496 read with Section 34 IPC by a brief order. It was observed that since the parties had settled their disputes and the complainant agreed that the criminal proceedings need not be continued, the criminal proceedings could be quashed.

42. In a very recent judgment decided by this Court in the month of July, 2012 in Jayrajsinh Digvijaysinh Rana v. State of Gujarat and another[36], this Court was again concerned with the question of quashment of an FIR alleging offences punishable under Sections 467, 468, 471, 420 and 120-B IPC. The High Court refused to quash the criminal case under Section 482 of the Code. The question for consideration was that inasmuch as all those offences, except Section 420 IPC, were non-compoundable offences under Section 320 of the Code, whether it would be possible to quash the FIR by the High Court under Section 482 of the Code or by this Court under Article 136 of the Constitution of India. The Bench elaborately considered the decision of this Court in Shiji alias Pappu33 and by invoking Article 142 of the Constitution quashed the criminal proceedings. It was held as under:-

"10. In the light of the principles mentioned above, inasmuch as Respondent No. 2 - the Complainant has filed an affidavit highlighting the stand taken by the Appellant (Accused No. 3) during the pendency of the appeal before this Court and the terms of settlement as stated in the said affidavit, by applying the same analogy and in order to do complete justice under Article 142 of the Constitution, we accept the terms of settlement insofar as the Appellant herein (Accused No. 3) is concerned.

11. In view of the same, we quash and set aside the impugned FIR No. 45/2011 registered with Sanand Police Station, Ahmedabad for offences punishable Under Sections 467, 468, 471, 420 and 120-B of IPC insofar as the Appellant (Accused No. 3) is concerned. The appeal is allowed to the extent mentioned above".

43. In Y. Suresh Babu v. State of A. P. (2005) 1 SCC 347 decided on April 29, 1987, this Court allowed the compounding of an offence under Section 326 IPC even though such compounding was not permitted by Section 320 of the Code. However, in Ram Lal and Anr. v. State of J & K 1999 2 SCC 213, this Court observed that Y. Suresh Babu 2005 1 SCC 347 was per incuriam. It was held that an offence which law declares to be non-compoundable cannot be compounded at all even with the permission of the Court."

14. The question is with regard to the inherent power of the High Court in quashing the criminal proceeding against an offender who has settled his dispute with the victim of the crime but the crime in which he is allegedly involved is not compoundable under Section 320 Cr.P.C. Hon'ble Apex Court in Gian Singh (Supra) has answered that the inherent power may be exercised in different ways to achieve its ultimate objective. Formation of opinion by the High Court before it exercises inherent power under Section 482 Cr.P.C. on either of the twin objectives (i) to prevent abuse of the process of any court or (ii) to secure the ends of justice, is a sine qua non.

15. In the case of Gian Singh (Supra), the concluding para-57 is of much essence to be quoted hereunder so as to form an opinion of this Court to allow the prayer of present accused applicants:-

"57. The position that emerges from the above discussion can be summarized 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 flavour 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."

16. On the basis of aforesaid discussions and considering the dispute with regard to the offences allegedly to have been committed by the present accused-applicants is amicably settled with the victims of the offence. Since they are not heinous and serious offences of mental depravity or offences like murder, rape, dacoity etc., the charge-sheet and further proceeding flowing therefrom in Sessions Trial No.26/2018 may be quashed in view of the compromise.

17. The charge-sheet no.74/2015 filed by the police and the criminal proceedings flowing therefrom in Session Trial No.26/2018, arising out of Case Crime No.858/2015, under Sections 323, 504, 308, 325 I.P.C., Police Station- Kotwali City, District- Hardoi are quashed and the trial court is directed accordingly to drop the proceedings.

18. The prayer made in the instant application by the accused-applicants and opposite parties no.2 to 4 is allowed.

19. The present application under Section 482 Cr.P.C. is disposed of.

20. The Deputy Registrar (Criminal) is to communicate the order of this Court to the learned court below (Additional Sessions Judge, Court No.11, Hardoi) promptly.

Order Date :- 18.3.2021

Gaurav/-

[Vikas Kunvar Srivastav, J.]