Shyam And 6 Others vs State Of U.P. And Another
2023 Latest Caselaw 21750 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:163809
 
Court No. - 90
 

 
Case :- APPLICATION U/S 482 No. - 23571 of 2021
 

 
Applicant :- Shyam And 6 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Kamal Kaushal Upadhyay
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Dinesh Pathak,J.

1. Heard learned counsel for the applicants and learned AGA. None is present for the opposite party No.2.

2. The applicants have invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. for quashing the entire criminal proceeding of S.T. No.352 of 2012 (State Vs. Shaym & Others), arising out of Case Crime No.248A of 2009 under Sections 147, 148, 149, 323, 307 I.P.C., Police Station Dadon, District Aligarh, and also to quash the summoning order dated 12.12.2011 passed by Additional Chief Judicial Magistrate Court No.5, Aligarh in Case No.112 of 2011, pending in the court of Additional District Judge, Court No.2, Aligarh.

3. With respect to the incident dated 04.09.2019 cross case have been filed by both the parties. Present application u/s 482 Cr.P.C. is arising out of Case Crime No.248A of 2009. However, another Case Crime No.248 of 2009 was lodged by the Manoj Kumar Gupta. On the request made on behalf of the learned counsel for the applicants parties were relegated before the trial court for verification of the compromise vide order dated 28.1.2023, which is quoted herein below :-

"Ref :- (Crl. Misc. Amendment Application No. Nil of 2021)

Heard learned counsel for applicants and learned AGA for the State.

Present application has been filed by applicants seeking amendment in the prayer clause of the application under Section 482 Cr.P.C.

As there is no serious challenge to the amendment application by learned AGA, in view of the said fact, the amendment application is allowed.

Let necessary amendment be incorporated forthwith.

(Order on Application)

This application has been moved with the prayer to quash the entire criminal proceedings of S.T. No.352 of 2012 (State Vs. Shyam & Others) arising out of Case Crime No.248A of 2019, under Sections 147, 148, 149, 323 and 307 I.P.C., Police Station Dadon, District Aligarh as well as summoning order dated 12.12.2011 passed by Additional Chief Judicial Magistrate, Court No.5 and order dated 11.1.2021 passed by District & Sessions Judge Court No.2, District Aligarh, pending in the Court of Additional District Judge, Court No.2, District Aligarh.

Learned counsel for the applicants states that matter has been compromised between the parties. He further states that the compromise dated 24.02.2021 (annexure-9) has been filed before the court below but same has not been verified as yet by the learned court below.

On these facts, the parties have arrived for some amicable settlement regarding which compromise duly arrived at between the parties is pending verification before learned court below and, therefore, it would be in the interest of justice to protect the right of the applicant pending final disposal of the matter. Learned counsel also submits that as the parties have entered into amicable settlement, there is no likelihood of conviction in the matter.

As an interim measure, till the next date of listing, no coercive action shall be taken against the applicants.

However, learned counsel for the applicants, as prayed, is granted three weeks time to appear and get the compromise deed (annexure-9) verified from the court below and file a certified copy thereof, on or before the next date of listing before this Court.

Learned counsel for the applicants is directed to file copy of this order before the court below within 15 days from today for compliance, failing which, interim protection given by this Court shall cease to operate and law will take its own course.

List on 16.03.2023 in the additional cause list."

4. Learned counsel for the applicants has field the supplementary affidavit annexing the certified copy of the compromise verification order dated 10.2.2023 passed by Additional Sessions Judge, Court No.11, Aligarh.

5. Perusal of the order dated 10.2.2023 passed by court below reveals that initially compromise was filed on 24.02.2021. However, even at the subsequent stage, parties were standing on their footing to admit the aforesaid compromise. Both the parties were present before the court below on 10.02.2023 and admitted the factum of the compromise took place between the parties and, accordingly, compromise has been verified.

6. Learned counsel for the applicants has submitted that in the eventuality of settlement of dispute between the parties and the verification report submitted by the learned trial court verifying the compromise took place between the parties, instant application may be allowed and and criminal proceedings may be quashed. It is further submitted that now parties have buried the hatchet and there is no grudges against each other.

7. To quash the cognizance/summoning order as well as criminal proceeding, learned counsel for the applicant has relied upon the following judgments of the Hon'ble Apex Court :-

(i) B.S.Joshi & Others Vs. State of Haryana & Others; (2003) 4 SCC 675.

(ii) Nikhil Merchant Vs. Central Bureau of Investigation; (2008) 9 SCC 667.

(iii) Manoj Sharma Vs. State & Others; (2008) 16 SCC 1.

(iv) Gyan Singh Vs. State of Punjab (2012) 10 SCC 303.

(v) Narindra Singh & Others Vs. State of Punjab (2014) 6 SCC 466.

8. In a judgment passed by a Three Judges' Bench of the Apex Court in the Case of Parbatbhai Aahir alias Parbatbhai Bhimsinhbhai Karmur and others Vs. State of Gujarat and another, reported in AIR 2017 SC 4843, Hon'ble Supreme Court has summarized the ratio of all the cases decided earlier with respect to quashing of F.I.R./charge-sheet/criminal proceeding on the ground of settlement between the parties and expounded the ten categories in which application under Section 482 could be entertained for quashing the F.I.R./charge-sheet/criminal proceeding on the basis of compromise. Para no. 15 of the said judgement summarizing the proposition in this respect is reproduced below:-

"15. (i) Section 482 preserves the inherent power 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;

(ii) 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.

(iii) In forming an opinion whether a criminal proceeding or compliant 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;

(iv) 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;

(v) 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;

(vi) In 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 approximately 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;

(vii) 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 insofar as the exercise of the inherent power to quash is concerned;

(viii) 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;

(ix) 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

(x) There is yet an exception to the principle set out in propositions (viii) and (ix) 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."

9. Learned counsel for applicants has further submitted that arising out of Case Crime No.248 of 2009 an Application u/s 482 Cr.P.C. No.23726 of 2021 (Om Prakash and 4 Others Vs. State of U.P. and Another) was filed. The aforesaid application was decided on the basis of compromise dated 24.2.2021 took place between the parties and, accordingly, criminal proceedings arising out of Case Crime No.248 of 2009 was quashed, vide order dated 09.08.2023, passed by co-ordinate Bench of this Court. Copy of the order dated 09.08.2023 supplied by learned counsel for the applicants is taken on record.

10 Having considered the compromise verification order dated 10.02.2023 and the order dated 09.08.2023 passed in Application u/s 482 Cr.P.C. No.23726 of 2021 (Om Prakash and 4 Others Vs. State of U.P. and Another) and with the assistance of the aforesaid guidelines, keeping in view the nature of gravity and severity of the offence, which are more particular in private dispute, it is deemed proper that in order to meet the ends of justice, the present proceeding should be quashed. In result, dispute between the parties will put to an end, peace will be resorted and relationship between them will be smooth. No useful purpose would be served to keep the present matter pending inasmuch as both the parties have buried the hatchet and as the time passes, it will be difficult to prove the guilt of the accused. The continuation of criminal proceeding would cause oppression and prejudice.

11. In view of the aforesaid pronouncements of the Hon'ble Apex Court and in the light of the compromise arrived at between the parties, which has been duly verified by the concerned court below, the present application under Section 482 Cr.P.C. is hereby allowed. The entire criminal proceeding of S.T. No.352 of 2012 (State Vs. Shaym & Others), arising out of Case Crime No.248A of 2009 under Sections 147, 148, 149, 323, 307 I.P.C., Police Station Dadon, District Aligarh is hereby quashed.

12. Let a copy of the order be transmitted to the concerned lower Court for necessary action.

Order Date :- 11.8.2023

Md Faisal