Ambrish Kumar Agarwal And Another vs State Of U.P. And Another
2024 Latest Caselaw 16347 ALL

Allahabad High Court

Ambrish Kumar Agarwal And Another vs State Of U.P. And Another on 9 May, 2024

Author: Gautam Chowdhary

Bench: Gautam Chowdhary

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2024:AHC:85445
 
Court No. - 90
 
Case :- APPLICATION U/S 482 No. - 4378 of 2016
 
Applicant :- Ambrish Kumar Agarwal And Another
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Gaurav Kakkar,Ashok Kumar Rai,Pawan Singh Pundir
 
Counsel for Opposite Party :- G.A.,Chandravir Singh Raghuvan,Rajendra Kumar Singh,Ramesh Kumar Shukla
 

 
Hon'ble Dr. Gautam Chowdhary,J.
 

1. Heard learned counsel for the applicants, learned A.G.A. for the State as well as learned counsel for the opposite party No. 2 and perused the record.

2. The present application under Section 482 Cr.P.C. has been filed with the prayer to quash the order dated 18.01.2016 passed by learned A.C.J.M., Nagina, District Bijnor in Criminal Case No. 3970 of 2015, arising out of Case Crime No. 166 of 2015, under Sections 420, 406, 307 I.P.C., Police Station Afzalgadh, District Bijnor, whereby application moved on behalf of applicants for modifying the cognizance order, has been rejected.

3. Learned counsel for the applicants submits that the F.I.R. was lodged by the first informant by moving an application under Section 156(3) Cr.P.C. alleging therein that in the garb of providing him land in Nainital the accused persons took forty lakh rupees on 11.09.2006 from him but when he demanded his money on 26.04.2015 the accused applicants refused to return the same and applicant No. 2- Shravan Kumar Agarwal fired gunshot upon his son. Learned counsel further submits that after investigation charge sheet was filed whereupon cognizance was taken upon by the court concerned, thereafter, on 02.01.2016 the applicants moved an application before the court concerned with the prayer to alter the cognizance order as the same has wrongly been taken for the offence under Sections 420, 307 I.P.C., but the said application has been rejected vide impugned order dated 18.01.2016. Learned counsel further submits that with the passage of time both the parties have arrived at an amicable settlement and in that regard a compromise deed was executed between them on 10.04.2023 and when an application was moved by both the parties before the court concerned for taking the aforesaid compromise deed on record the court concerned rejected the same by stating that since cognizance has been taken against the applicants for the offence under Sections 307, 406, 420 I.P.C. which offence is non compoundable, therefore, the said application is liable to be rejected, and hence, rejected the same.

4. Learned counsel for the applicants further submits that since both the parties have arrived at an amicable settlement by reducing their compromise in writing, then there was no occasion for the trial court to reject the application moved on behalf of both the parties that they had settled their dispute even for the offence under Section 307 I.P.C. along with other offences under Section 420, 406 I.P.C. In support of his arguments the learned counsel has placed reliance upon the judgment of Hon'ble Apex Court in the case of Ranigopal and another Vs. The State of Madhya Pradesh, reported in 2021 0 Supreme (SC) 529, wherein it has been observed as under:-

"11. True it is that offences which are 'non compoundable' cannot be compounded by a criminal court in purported exercise of its powers under Section 320 Cr.P.C. Any such attempt by the court would amount to alteration, addition and modification of Section 320 Cr.P.C, which is the exclusive domain of Legislature. There is no patent or latent ambiguity in the language of Section 320 Cr.P.C., which may justify its wider interpretation and include such offences in the docket of 'compoundable' offences which have been consciously kept out as non compoundable. Nevertheless, the limited jurisdiction to compound an offence within the framework of Section 320 Cr.P.C. is not an embargo against invoking inherent powers by the High Court vested in it under Section 482 Cr.P.C. The High Court, keeping in view the peculiar facts and circumstances of a case and for justifiable reasons can press Section 482 Cr.P.C. in aid to prevent abuse of the process of any Court and/or to secure the ends of justice.

12. The High Court, therefore, having regard to the nature of the offence and the fact that parties have amicably settled their dispute and the victim has willingly consented to the nullification of criminal proceedings, can quash such proceedings in exercise of its inherent powers under Section 482 Cr.P.C., even if the offences are non compoundable. The High Court can indubitably evaluate the consequential effects of the offence beyond the body of an individual and thereafter adopt a pragmatic approach, to ensure that the felony, even if goes unpunished, does not tinker with or paralyze the very object of the administration of criminal justice system.

13. It appears to us that criminal proceedings involving non heinous offences or where the offences are pre dominantly of a private nature, can be annulled irrespective of the fact that trial has already been concluded or appeal stands dismissed against conviction. Handing out punishment is not the sole form of delivering justice. Societal method of applying laws evenly is always subject to lawful exceptions. It goes without saying, that the cases where compromise is struck postconviction, the High Court ought to exercise such discretion with rectitude, keeping in view the circumstances surrounding the incident, the fashion in which the compromise has been arrived at, and with due regard to the nature and seriousness of the offence, besides the conduct of the accused, before and after the incidence. The touchstone for exercising the extra ordinary power under Section 482 Cr.P.C. would be to secure the ends of justice. There can be no hard and fast line constricting the power of the High Court to do substantial justice. A restrictive construction of inherent powers under Section 482 Cr.P.C. may lead to rigid or specious justice, which in the given facts and circumstances of a case, may rather lead to grave injustice. On the other hand, in cases where heinous offences have been proved against perpetrators, no such benefit ought to be extended, as cautiously observed by this Court in Narinder Singh & Ors. vs. State of Punjab & Ors.3 and Laxmi Narayan (Supra).

14. In other words, grave or serious offences or offences which involve moral turpitude or have a harmful effect on the social and moral fabric of the society or involve matters concerning public policy, cannot be construed betwixt two individuals or groups only, for such offences have the potential to impact the society at large. Effacing abominable offences through quashing process would not only send a wrong signal to the community but may also accord an undue benefit to unscrupulous habitual or professional offenders, who can secure a 'settlement' through duress, threats, social boycotts, bribes or other dubious means. It is well said that "let no guilty man escape, if it can be avoided."

15. Given these settled parameters, the order of the High Court of Madhya Pradesh culminating into Criminal Appeal No. 1489 of 2012, to the extent it holds that the High Court does not have power to compound a non-compoundable offence, is in ignorance of its inherent powers under Section 482 Cr.P.C. and is, thus, unsustainable. However, the judgment and order dated 9th January, 2009 of the High Court of Karnataka, giving rise to Criminal Appeal No. 1488 of 2012 cannot be faulted with on this count for the reason that the parties did not bring any compromise/settlement to the notice of the High Court.

5. Thus, the learned counsel for the applicants submits that since the matter has been settled amicably by both the parties, which dispute is purely civil in nature, therefore, the impugned proceedings initiated against the applicants be quashed in terms of the aforesaid settlement arrived at between both the parties.

6. Learned A.G.A. for the State as well as learned counsel for the opposite party No. 2 have conceded the above arguments made by the learned counsel for the applicants and has submitted that since both the parties have arrived at an amicable settlement and there is no dispute between them, therefore, present proceedings initiated against the applicants are liable to be quashed.

7. After having heard the arguments advanced by learned counsel for the parties and after going through the entire record, it would now be appropriate to consider the law laid down by various pronouncements of the Apex Court regarding powers of High Court under section 482 Cr.P.C. for quashing the proceedings in lieu of settlement arrived at between the parties especially in the disputes which are personal in nature. In the case of Gian Singh vs. State of Punjab and another (2012) 10 SCC 303, the Apex Court has summarized the legal position in the matter of quashing the FIR. Relevant paragraph 61 of the aforementioned judgement reads as follows:

"61. The position that emerges from the above 498A, 323, 377, 376, 511, 120B, 506, 504 discussion can be 498A, 323, 377, 376, 511, 120B, 506, 504 summarised 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 498A, 323, 377, 376, 511, 120B, 506, 504 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."

8. In the case of Narindra Singh and others vs. State of Punjab and another : (2014) 6 SCC 466, the Apex Court has proceeded to give detailed guidelines when the Court should accept settlement between the parties and when it should refrain from doing so. The relevant extract of the same is as follows:

"17. We would like to expand this principle in some more detail. We find, in practice and in reality, after recording the conviction and while awarding the sentence/punishment the Court is generally governed by any or all or combination of the aforesaid factors. Sometimes, it is the deterrence theory which prevails in the minds of the Court, particularly in those cases where the crimes committed are heinous in nature or depicts depravity, or lack morality. At times it is to satisfy the element of "emotion" in law and retribution/vengeance becomes the guiding factor. In any case, it cannot be denied that the purpose of punishment by law is deterrence, constrained by considerations of justice. What, then, is the role of mercy, forgiveness and compassion in law? These are by no means comfortable questions and even the answers may not be comforting. There may be certain cases which are too obvious namely cases involving heinous crime with element of criminality against the society and not parties inter-se. In such cases, the deterrence as purpose of punishment becomes paramount and even if the victim or his relatives have shown the virtue and gentility, agreeing to forgive the culprit, compassion of that private party would not move the court in accepting the same as larger and more important public policy of showing the iron hand of law to the wrongdoers, to reduce the commission of such offences, is more important. Cases of murder, rape, or other sexual offences etc. would clearly fall in this category. After all, justice requires long term vision. On the other hand, there may be, offences falling in the category where "correctional" objective of criminal law would have to be given more weightage in contrast with "deterrence" philosophy. Punishment, whatever else may be, must be fair and conducive to good rather than further evil. If in a particular case the Court is of the opinion that the settlement between the parties would lead to more good; better relations between them; would prevent further occurrence of such encounters between the parties, it may hold settlement to be on a better pedestal. It is a delicate balance between the two inflicting interests which is to be achieved by the Court after examining all these parameters and then deciding as to which course of action it should take in a particular case."

25. In the case of Dimpey Gujral (supra), observations of this Court were to the effect that offences involved in that case were not offences against the society. It included charge under Section 307 IPC as well. However, apart from stating so, there is no detained discussion on this aspect. Moreover, it is the other factors which prevailed with the Court to accept the settlement 498A, 323, 377, 376, 511, 120B, 506, 504 and compound he offence, as noted above while discussing this case. On the other hand, in Shambhu Kewat (supra), after referring to some other earlier judgments, this Court opined that commission of offence under Section 307 IPC would be crime against the society at large, and not a crime against an individual only. We find that in most of the cases, this view is taken. Even on first principle, we find that an attempt to take the life of another person has to be treated as a heinous crime and against the society.

26. Having said so, we would hasten to add that though it is a serious offence as the accused person(s) attempted to take the life of another person/victim, at the same time the court cannot be oblivious to hard realities that many times whenever there is a quarrel between the parties leading to physical commotion and sustaining of injury by either or both the parties, there is a tendency to give it a slant of an offence under Section 307 IPC as well. Therefore, only because FIR/Charge-sheet incorporates the provision of Section 307 IPC would not, by itself, be a ground to reject the petition under section 482 of the Code and refuse to accept the settlement between the parties. We are, therefore, of the opinion that while taking a call as to whether compromise in such cases should be effected or not, the High Court should go by the nature of injury sustained, the portion of the bodies where the injuries were inflicted (namely whether injuries are caused at the vital/delicate parts of the body) and the nature of weapons used etc. On that basis, if it is found that there is a strong possibility of proving the charge under Section 307 IPC, once the evidence to that effect is led and injuries proved, the Court should not accept settlement between the parties. On the other hand, on the basis of prima facie assessment of the aforesaid circumstances, if the High Court forms an opinion that provisions of Section 307 IPC were unnecessary included in the charge sheet, the Court can accept the plea of compounding of the offence based on settlement between the parties.

27. At this juncture, we would like also to add that the timing of settlement would also play a crucial role. If the settlement is arrived at immediately after the alleged commission of offence when the matter is still under investigation, the High Court may be somewhat liberal in accepting the settlement and quashing the proceedings/investigation. Of course, it would be after looking into the attendant circumstances as narrated in the previous para. Likewise, when challan is submitted but the charge has not been framed, the High Court may exercise its discretionary jurisdiction. However, at this stage, as mentioned above, since the report of the I.O. under Section 173,Cr.P.C. is also placed before the Court it would become the bounding duty of the Court to go into the said report and the evidence collected, particularly the medical evidence relating to injury etc. sustained by the victim. This aspect, however, would be examined along with another important consideration, namely, in view of settlement between the parties, whether it would be unfair or contrary to interest of justice to continue with the criminal proceedings and whether possibility of conviction is remote and bleak. If the Court finds the answer to this question in affirmative, then also such a case would be a fit case for the High Court to give its stamp of approval to the compromise arrived at between the parties, inasmuch as in such cases no useful purpose would be served in carrying out the criminal proceedings which in all likelihood would end in acquittal, in any case."

9. In view of the aforesaid parameters settled by Hon'ble Apex Court in various pronouncements, it would be appropriate to consider the facts of the present case that since both the parties have arrived at an amicable settlement in terms of compromise, therefore, inherent jurisdiction of this Court can be suitably exercised if rival parties have mutually decided to settle the matter amicably between them. The litigation flowing from such dispute need to be buried finally in view of settlement arrived at between the rival parties.

10. In view of the above facts and circumstances of the case, it would be appropriate to quash the impugned proceedings initiated against the applicants.

11. Accordingly, the present petition under Section 482 Cr.P.C. is allowed and the proceedings of Criminal Case No. 3970 of 2015, arising out of Case Crime No. 166 of 2015, under Sections 420, 406, 307 I.P.C., Police Station Afzalgadh, District Bijnor, pending in the court of learned learned A.C.J.M., Nagina, District Bijnor, are hereby quashed.

Order Date :- 9.5.2024

Mustaqeem./C.P.Sahani