Avinash Upadhaya vs State Of U.P. Thru. Secy. Home ...
2023 Latest Caselaw 24582 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:58831-DB
 
Court No. - 10
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 50 of 2023
 

 
Petitioner :- Avinash Upadhaya
 
Respondent :- State Of U.P. Thru. Secy. Home Civil Secrt. Lko. And Others
 
Counsel for Petitioner :- Vijay Kumar Asthana,Anurag Tilhari,Peeyush Mishra
 
Counsel for Respondent :- G.A.,Alok Kumar Singh,Aviral Raj Singh,Dhruv Kumar Singh,Palash Banerjee,Ritwick Rai,Vaibhav Tewari
 
alongwith
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 144 of 2023
 

 
Petitioner :- Devendra Singh Mer
 
Respondent :- State Of U.P. Thru. Secy. Home Civil Sectt. U.P. Lko. And Others
 
Counsel for Petitioner :- Anurag Tilhari,Peeyush Mishra,Vijay Kumar Asthana
 
Counsel for Respondent :- G.A.,Alok Kumar Singh,Aviral Raj Singh,Dhruv Kumar Singh,Palash Banerjee,Ritwick Rai
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

Hon'ble Narendra Kumar Johari,J.

(1) Both these writ petitions namely [CRIMINAL MISC. WRIT PETITION No. - 50 of 2023 {Avinash Upadhaya Vs. State of U.P. and others} and CRIMINAL MISC. WRIT PETITION No. - 144 of 2023 {Devendra Singh Mer Vs. State of U.P. and others} arise out of same crime number, therefore, the same are being decided finally by a common order.

(2) It has been informed that the Advocates are abstaining from judicial work. Learned A.G.A. is present in Court for the State.

(3) The present writ petition has been filed with the following main reliefs :-

"(i) Issue a writ order or direction in the nature of Certiorari to quash the impugned First Information Report dated 22.10.2022 registered at Police Station Vibhuti Khand, District Lucknow, giving rise to Case Crime No.0769 of 2022, under Sections 406, 420, 467, 468, 471, 504 & 506 I.P.C.

(ii) To issue an order or direction in the nature of Mandamus directing the opposite parties nos.1 & 2 not to arrest the petitioner in relation with the First Information Report dated 22.12.2022, registered at Police Station Vibhuti Khand, District Lucknow, giving rise to Case Crime No.0769 of 2022, under Sections 406, 420, 467, 468, 471, 504 & 506 I.P.C during the pendency of this writ petition."

(4) This Court has gone through the Mediation Center's report dated 17.08.2023 and settlement agreement which is enclosed alongwith it. From perusal of the same, it is evident that the parties have arrived at an amicable solutions to their dispute relating to the partnership Firm of Digital Cafe having its registered Office namely Shop no.102, Sahara Plaza, Patrakarpuram, Police Station Gomti Nagar, District Lucknow. An amount of Rs.20 lacs shall be paid by Devendra Singh Mer to Manish Kumar Audichya, towards one time full and final settlement to all claims that Manish Kumar Audichya has against Avinash Upadhaya and Devendra Singh Mer. Devendra Singh Mer, has handed over the Demand Draft of Rs.10,50,000/- and three posts dated cheques of Rs.3 lacs each made out in favour of Manish Kumar Audichya. The liabilities relating to the Firm shall be borne by Devendra Singh Mer in future. Manish Kumar Audichya has agreed not to claim any amount from Avinash Upadhaya and also has agreed that he has no objections, if this Court decides the instant writ petition in favour of Avinash Upadhaya and Devendra Singh Mer.

(5) Learned counsel for the opposite party No.3 has also conceded that the matter between the petitioners and opposite party No.3 has amicably been settled and further parties have no grievance with each other. If, the relief as prayed by the petitioners is granted in favour of petitioners, he has no objection. Learned A.G.A. has also not disputed the prayer.

(6) Both the parties have arrived at a compromise. In such a situation, the Court has inherent jurisdiction to pass a suitable order as may be necessary to prevent the abuse of process of law to secure the ends of justice.

(7) The co-ordinate Bench of this Court had occasioned to discuss the power of the Court 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 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."

(8) The co-ordinate Bench of this Court has given another judgement in the case of Dinesh Sharma and Ors.Vs. State of U.P and Ors. [2017 (Suppl.) ADJ 613] on the same point.

(9) In the case of Jitendra Raghuvanshi and Ors. Vs. Babita Raghuvanshi and Ors. [2013 (4) ADJ 40], 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.

(10) 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 where the 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."

(11) To the same effect is the decision of this Court in Nikhil Merchant v. CBIMANU/SC/7957/2008 : 2008 (9) SCC 677, wherein 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."

(12) In the case of Nikhil Merchant Vs. Central Bureau of Investigation [2008 CJ (SC) 1114], the Apex Court has discussed the scope of compromise where the disputes are private in nature and quashed the criminal proceedings on the basis of mutual compromise.

(13) The Hon'ble Apex Court in the case of Manoj Sharma v. State and Ors. MANU/SC/8122/2008 : (2008) 16 SCC 1, has held that the High Court has ample power under Article 226 of the Constitution of India to exercise the power to quash the first information report where the dispute is private in nature. The High Court should take a pragmatic view in the matter.

(14) The Hon'ble Apex Court in the case of Madan Mohan Abbot Vs. State of Punjab (Civil Appeal No. 555 of 2008 (arising out of SLP (Crl.) No. 4579 of 2006) decided on 26.3.2008) also has discussed that the dispute is purely personal in nature and arose out of extensive business dealing and where there is no public policy involved, the Court should ordinarily accept the terms of compromise.

(15) In view of above, considering the report of the Mediation Center of this Court and the observations 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 first information report 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 as well as investigating agencies are very precious which should not be wasted in any futile proceedings where the chance of conviction is bleak.

(16) Accordingly, the writ petition is allowed and the proceedings of impugned First Information Report dated 22.12.2022, registered at Crime No.0769 of 2022, under Sections 406, 420, 467, 468, 471, 504 & 506 I.P.C., Police Station - Vibhuti Khand, District - Lucknow, are hereby quashed.

Order Date :- 12.9.2023

N.PAL