Raj Kapoor @ Mintu And 2 Others vs State Of U.P. And 2 Others
2022 Latest Caselaw 15796 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 47
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 14745 of 2022
 

 
Petitioner :- Raj Kapoor @ Mintu And 2 Others
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Kamal Kumar Singh,Aslam Ali
 
Counsel for Respondent :- G.A.,Sudhir Kumar Mishra
 

 
Hon'ble Mahesh Chandra Tripathi,J.

Hon'ble Mohd. Azhar Husain Idrisi,J.

Heard Sri Kamal Kumar Singh, learned counsel for the petitioners and learned AGA as well as Sri Sudhir Kumar Mishra, learned counsel for the informant.

Present writ petition has been preferred for quashing the FIR dated 03.04.2022 in Case Crime No.159 of 2022, under Sections 354(Gha),504, 506 IPC, & 7/8 of POCSO Act, Police Station Sarai Lakhansi, Distt. Mau and for a direction to respondents not to arrest the petitioners pursuant to aforesaid FIR.

The submission of learned counsel for the petitioners is that cross F.I.Rs. have been lodged from both sides. He further submits that matter has already been resolved amicably between the parties. The petitioners are innocent having no criminal antecedent. parties have entered into compromise and compromise deed has already been prepared on 13.09.2022. He next submits that all alleged offences are punishable with imprisonment of seven years, therefore the police authorities are bound to follow the procedure laid down under Section 41-A Cr.P.C. The petitioners have been wrongly implicated and could not be arrested. Learned counsel for the petitioners has placed reliance on the judgement of this Court dated 28.01.2021 in Criminal Misc. Writ Petition No.17732 of 2020 (Vimal Kumar and 3 others vs. State of UP and 3 others) in which guidelines have been framed following the judgement of the Apex Court in different cases, relating to offences providing punishment of seven years or less.

The investigating agencies and their officers are duty bound to comply with the mandate of Section 41 and 41A of the Code and the directions issued in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273. Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action. The principle that bail is the rule and jail is the exception has been well recognized through the repetitive pronouncements of the Apex Court, which is on the touchstone of Article 21 of the Constitution of India (Ref. Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1. This provision mandates the police officer to record his reasons in writing while making the arrest. Thus, a police officer is duty-bound to record the reasons for arrest in writing. The consequence of non-compliance with Section 41 shall certainly inure to the benefit of the person suspected of the offence. On the scope and objective of Section 41 and 41A, it is obvious that they are facets of Article 21 of the Constitution. The same has been elaborately dealt with in paragraphs 7.1 to 12 of the judgment in Arnesh Kumar's case (supra).

The factual aspects is not disputed by learned counsel for the informant. He also supported the submission of the petitioner that matter has already been resolved amicably between the parties, therefore, F.I.R. is liable to be quashed.

It is jointly submitted that this being an offshoot of a dispute between the parties, same has come to be amicably resolved under the compromise deed dated 13.09.2022, pending proceedings would serve no purpose and the same are liable to be quashed in the light of the judgements of Hon'ble the Apex Court in the case of B.S. Joshi v. State of Haryana and others, 2003(4) SCC 675 and Gian Singh v. State of Punjab, 2012(10) SCC 303 as well as the judgment of this Court dated 16.9.2022 in Criminal Misc. Writ Petition No.8510 of 2022 (Anuj Pandey v. State of U.P. & Ors.).

Hon'ble the Apex Court in the case of B.S Joshi (Supra) has held that in case the matrimonial dispute has come to an end, under a compromise/settlement, between the parties, then notwithstanding anything contained under Section 320 IPC there is no legal impediment for this court to quash the proceedings of Section 498-A I.P.C etc, which has matrimonial flavour under its inherent powers in view of the recorded settlement between the parties. Hon'ble the Apex Court in the case of Gian Singh (supra) has held in para-61 that;

"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."

The present dispute was between the parties. Neither it is involving any moral turpitude nor is heinous in nature, which has come to an end under the compromise deed dated 13.09.2022.

Considering the facts and circumstances of the case, the writ petition stands disposed of asking the investigating officer to proceed strictly in accordance with law and considering the compromise deed dated 13.09.2022. For a period of two months, the petitioners shall not be arrested pursuant to impugned FIR, provided they cooperate with the investigation in question.

Order Date :- 3.11.2022

Rmk.