Allahabad High Court
Abid vs State Of U.P. And Another on 10 April, 2023
Bench: Vipin Chandra Dixit
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 69
Case :- APPLICATION U/S 482 No. - 41307 of 2022
Applicant :- Abid
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Shishir Tandon,Ravindra Sharma
Counsel for Opposite Party :- G.A.
Hon'ble Vipin Chandra Dixit,J.
Heard Sri Ravindra Sharma, learned counsel for applicants, learned AGA for the State and Sri Shishir Tandon, learned counsel for the opposite party no.2 and perused the record.
It is submitted by learned counsel for applicants that the parties had settled their dispute amicably outside the Court and a written compromise has taken place between the parties. Compromise deed has been annexed as Annexure 1 to the affidavit filed in support of affidavit of compliance dated 03.04.2023. This court vide order dated 23.01.2023, directed the parties to appear before the court below and submit the copy of compromise for verification. In compliance of order dated 23.01.2023, parties appeared before the court below on 02.02.2023 for verification of compromise. Parties were duly identified by their respective counsels and compromise was verified by Chief Judicial Magistrate, Bijnor vide order dated 02.02.2023. Certified copy of order dated 02.02.2023 has been annexed along with the affidavit of compliance.
Learned AGA for the State and learned counsel appearing on behalf of opposite party no.2 do not dispute the aforesaid facts.
Learned counsel for the applicant has placed reliance on the judgment of Hon'ble Apex Court in the case of Kapil Gupta Vs. State of NCT of Delhi and Another 2022 8 Supreme 341. Relevant paragraph nos. 12, 13, 14 and 17 are quoted hereinbelow:-
12.No doubt that the learned ASG is right in relying on various judgments of this Court which reiterate the legal position that in heinous and serious offences like murder or rape, the Court should not quash the proceedings. It will be elevant to refer to paragraph 29.5 to 29.7 of the judgment of this Court in the case of Narender Singh versus State of Punjab1, which read thus:
"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 latter 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 becauseof 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 482 of 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."
13. It can thus be seen that this Court has clearly held that though the Court should be slow in quashing the proceedings wherein heinous and serious offences are involved, the High Court is not foreclosed from examining as to whether there exists material for incorporation of such an offence or as to whether there is sufficient evidence which if proved would lead to proving the charge for the offence charged with. The Court has also to take into consideration as to whether the settlement between the parties is going to result into harmony between them which may improve their mutual relationship.
14. The Court has further held that it is also relevant to consider as to what is stage of the proceedings. It has been observed that if an application is made at a belated stage wherein the evidence has been led and the matter is at the stage of arguments or judgment, the Court should be slow to exercise the power to quash the proceedings. However, if such an application is made at an initial stage before commencement of trial, the said factor will weigh with the court in exercising its power.
17. In that view of the matter, we find that though in a heinous or serious crime like rape, the Court should not normally exercise the powers of quashing the proceedings, in the peculiar facts and circumstances of the present case and in order to give succour to Respondent No. 2 so that she is saved from further agony of facing two criminal trials, one as a victim and one as an accused, we find that this is a fit case wherein the extraordinary powers of this Court be exercised to quash the criminal proceedings.
In view of the aforesaid fact, since the parties have amicably settled their dispute outside the Court and compromise between the parties had already been verified by the Court below and under the circumstances that informant/victim does not want to prosecute the applicant and no conviction is possible, the present Application U/S 482 Cr.P.C. is liable to be allowed.
Accordingly, the present Application U/S 482 Cr.P.C. is allowed and entire proceedings of Case No.3151 of 2007, arising out of Case Crime No.2068 of 2006 under Sections 452, 323, 363, 366, 376 IPC, Police Station- Kotwali City, District- Bijnor, are hereby quashed.
Order Date :- 10.4.2023
Virendra
