Bombay High Court
Vishwanath S/O. Kundlik Udar And ... vs The State Of Maharashtra And Anr on 14 September, 2017
Bench: S.S. Shinde
1 APPLN1858.2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
CRIMINAL APPLICATION NO. 1858 OF 2017
1. Abhijit S/o Bankat Pawar,
Age : 22 years, Occupation-Education,
2. Pramod Uddhav Pawar,
Age : 28 years, Occupation-Education,
3. Amol Mahadeo Jadhav,
Age : 30 years, Occupation-Agriculture,
4. Amol Haribhau @ Hariba Pawar,
Age : 24 years, Occupation-Driver,
5. Tanaji Vishwambhar Pawar,
Age : 24 years, Occupation-Agriculture,
6. Shubham Shivaji Gholap,
Age : 20 years, Occupation-Education,
7. Krushna Damodar Waghmare,
Age : 20 years, Occupation-Labour,
8. Sharad Haribhau @ Hariba Pawar,
Age : 22 years, Occupation-Agriculture,
9. Hanumant Vishnu Sadule,
Age : 22 years, Occupation-Labour,
10. Datta Mahadeo Jadhav,
Age : 32 years, Occupation-Agriculture,
11. Sham Shatragun Aakate,
Age : 20 years, Occupation-Education,
12. Shrikant Shatragun Aakate,
Age : 28 years, Occupation-Education,
13. Datta Vishnu Sadule,
Age : 27 years, Occupation-Labour,
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14. Kuldeep Sandipan Pawar,
Age : 26 years, Occupation-Agriculture,
15. Ravi Baban Chavan,
Age : 26 years, Occupation-Labour,
All are R/o. Pus,Tq. Ambajogai,
Dist. Beed.
Applicants...
VERSUS
1. The State of Maharashtra,
Through Police Station, Bardapur,
Dist. Beed.
2. Raju Vishwanath Udar,
Age-22 years, Occupation-Business,
R/o. Pus, Tq. Ambajogai,
Dist. Beed. ... Respondents
(Respondent No. 2 is Orig. Informant)
..........
Mr Sudarshan J. Salunke, Advocate for the applicants
Mr A. R. Borulkar, APP for respondent/State
Mr S. A. Ambad, Advocate for respondent No. 2
.............
WITH
CRIMINAL APPLICATION NO. 1871 OF 2017
1. Vishwanath S/o. Kundlik Udar,
Age : 55 years, Occu. Labour & Agril.
R/o. Pus, Tq. Ambajogai, Dist. Beed.
2. Santosh S/o. Vishwanath Udar,
Age : 30 years, Occu. Labour & Agril.,
R/o. Pus, Tq. Ambajogai, Dist. Beed.
3. Bandu @ Banti S/o. Vishwanath Udar,
Age : 27 years, Occu. Labour & Agril.,
R/o. Pus, Tq. Ambajogai, Dist. Beed.
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4. Sachin S/o Vishwanath Udar,
Age : 25 years, Occu. Labour & Agril.,
R/o. Pus, Tq. Ambajogai, Dist. Beed.
5. Swapnil @ Raju S/o Vishwanath Udar,
Age : 23 years, Occu. Labour,
R/o. Pus, Tq. Ambajogai, Dist. Beed.
6. Parmeshwar @ Bapu S/o Sitaram Udar,
Age : 40 years, Occu. Labour & Agril.,
R/o. Pus, Tq. Ambajogai, Dist. Beed.
7. Meghraj S/o Raosaheb Udar,
Age : 35 years, Occu. Labour & Agril.,
R/o. Pus, Tq. Ambajogai, Dist. Beed.
8. Atul S/o Prakash Udar,
Age : 30 years, Occu. Labour & Agril.,
R/o. Pus, Tq. Ambajogai, Dist. Beed.
9. Suryakant S/o Sitaram Udar,
Age : 35 years, Occu. Labour & Agril.,
R/o. Pus, Tq. Ambajogai, Dist. Beed.
10. Somnath S/o Uttam Udar,
Age : 38 years, Occu. Labour & Agril.,
R/o. Pus, Tq. Ambajogai, Dist. Beed.
11. Ravi S/o Raosaheb Udar,
Age : 30 years, Occu. Labour & Agril.,
R/o. Pus, Tq. Ambajogai, Dist. Beed.
12. Honaji S/o Sudhakar Udar,
Age : 45 years, Occu. Labour & Agril.,
R/o. Pus, Tq. Ambajogai, Dist. Beed. Applicants...
VERSUS
1. The State of Maharashtra,
Through Police Station Bardapur,
Dist. Beed.
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2. Uddhav S/o Sahebrao Pawar,
Age : 58 years, Occu. Agril.
R/o. Pus, Tq. Ambajogai, Dist. Beed. Respondents...
..........
Mr S. A. Ambad, Advocate for the applicants
Mr A. R. Borulkar, APP for respondent/State
Mr S. J. Salunke, Advocate for respondent No. 2
.............
CORAM : S. S. SHINDE &
A. M. DHAVALE, JJ.
RESERVED ON : 07.09.2017.
PRONOUNCED ON : 14.09.2017.
JUDGMENT (Per A. M. Dhavale, J.) :
1. Rule. Rule made returnable forthwith. Heard finally with
the consent of the parties and taken up for final disposal at admission
stage.
2. These two applications are filed by parties from counter
cases for quashing of FIRs filed by them against each other.
3. By Criminal Application No. 1858 of 2017, 15 accused
persons seek quashing of FIR bearing Crime No. 21/2017 dt.
16.03.2017 registered against them with Police Station Bardapur,
Dist. Beed, for the offences punishable under Sections 324, 323, 504,
5 APPLN1858.2017
506, 143, 147, 148, 149 of the Indian Penal Code and Sections 3(1)
(r)(s) of the Scheduled Castes & Scheduled Tribes (Prevention of
Atrocities) Act.
4. By Criminal Application No. 1871 of 2017, Vishwanath
Udar, the applicant and 11 others, seek quashing of FIR bearing
Crime No. 22/2017 dt. 18.03.2017 registered with Police Station
Bardapur, Dist. Beed for the offences punishable under Sections 395,
397, 506 of the Indian Penal Code.
5. The parties from both the applications are seeking quashing
of the FIRs on the ground of compromise arrived at between them
outside the Court and affidavits to that effect are also placed on
record. It is needless to state that, both the FIRs involve offences
which are non-compoundable in nature and hence, the applicants are
praying to invoke the powers u/s 482 of the Code of Criminal
Procedure.
6. On 16.03.2017, at 05:52 pm, Raju Udar lodged FIR bearing
C.R. No. 21/2017. As per the said FIR, on 16.03.2017 at 8:00 AM, he
had gone to Milk Dairy in Lingayat Galli at Pus, Tq. Ambajogai, for
selling milk. At that time, accused No. 1 - Abhijeet Pawar accosted
him why he brought milk there as they were not accepting milk being
6 APPLN1858.2017
brought by the people belonging to 'Mahar-Mang' community and
also said that, he should leave the spot. Accused No. 1 abused him
in the name of his caste and, thereafter, assaulted him with fist blows
& kick blows and also inflicted a blow of knife on the left arm of his
hand. Thereafter, Pramod Uddhav Pawar and 12 others abused him
in the name of his caste stating that, persons belonging to Mang
community should not be allowed to reside there and they threatened
him to kill. When he raised shouts, three persons namely Pandurang
Kundlik Udar, Ravi Raosaheb Udar and Atul Prakash Udar intervened
and rescued him. He then went to his house, narrated the incident to
family members and lodged FIR. In this case, he has filed affiavit at
Exh 'B' that the dispute between the parties is settled outside the
court. Now there is no ill will or hatred against the accused or
against any other person and in order to maintain cordial and
harmonious relations in the village, it is necessary to bring the
dispute between them to an end. He has stated that the said affidavit
is filed without any fear or coercion. He has filed second affidavit
stating that there were no utterances of words inviting the provisions
of the Atrocities Act. Those were mentioned under mistake and heat
of anger.
7. FIR bearing C.R. No. 22/2017 was filed by Uddhav
SahebraoPawar on 18.03.2017 at 04.07 PM. It is counter FIR to FIR
7 APPLN1858.2017
bearing C.R. No. 21/2017. As per the said FIR, on 16.03.2017 at
9:00 PM, 12 persons including the informant from counter case i.e.
Raju Udar armed with Sword, Axe, iron rod & a skythe, came to his
house . One Parmeshwar attempted to kill him by inflicting a blow of
sword but his brother Bankat held his hand. Thereafter, Santosh Udar
robbed him at the instance of Swapnil @ Raju of his gold ring of 5
gms. Ravi & Meghraj rushed at his brother with iron rods and robbed
him of Rs. 2,000/- and his brother of Rs. 3,000/-. When they raised
shouts, some neighbours intervened and the accused persons fled
away.
8. The law regarding quashing of FIRs involving non-
compoundable offences on the ground of 'compromise' is very much
crystallized in the judgments of Narinder Singh & Ors. Vs State of
Punjab & Anr. 2014 All MR (Cri) 1886 (S.C.) and Gian. Singh
Versus State of Punjab & Another (2012) 10 SCC 303. In case of
Narinder Singh (supra), the guidelines are laid down as follows:
(I) Power conferred under Section 482 of the Code is to be
distinguished from the power which lies in the Court to
compound the offences under Section 320 of the Code.
No doubt, under Section 482 of the Code, the High
Court has inherent power to quash the criminal
proceedings even in those cases which are not
compoundable, where the parties have settled the
matter between themselves. However, this power is to
be exercised sparingly and with caution.
8 APPLN1858.2017
(II) When the parties have reached the settlement and on
that basis petition for quashing the criminal
proceedings is filed, the guiding factor in such cases
would be to secure:
(i) ends of justice, or
(ii) to prevent abuse of the process of any Court.
While exercising the power the High Court is to form an
opinion on either of the aforesaid two objectives.
(III) Such a power is not be exercised in those prosecutions
which involve heinous and serious offences of mental
depravity or offences like murder, rape, dacoity, etc.
Such offences are not private in nature and have a
serious impact on society. Similarly, for offences alleged
to have been committed under special statute like the
Prevention of Corruption Act or the offences committed
by Public Servants while working in that capacity are
not to be quashed merely on the basis of compromise
between the victim and the offender.
(IV) On the other, those criminal cases having
overwhelmingly and pre-dominantly civil character,
particularly those arising out of commercial
transactions or arising out of matrimonial relationship
or family disputes should be quashed when the parties
have resolved their entire disputes among themselves.
(V) 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.
(VI) Offences under Section 307 IPC would fall in the
category of heinous and serious offences and therefore
is 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
9 APPLN1858.2017
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 later 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.
(VII) 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
because of 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
10 APPLN1858.2017
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.
9. Insofar as serious offences are concerned (not covered by
Section 320 of Cr.P.C.), quashing of criminal proceedings upon
compromise is within the discretion of the High Court in exercise of
powers u/s 482 of the Cr.P.C.
10. In the present case, Crime No. 22/2017 involves serious
offences u/s 395 & 307 of the Indian Penal Code, however, the Court
cannot be guided only by the provisions of Sections shown as
offences by the police. On carefully considering the papers before us
and the submissions made at the bar as well as the affidavits filed by
the respondents, we find that both the parties were known to each
other and the dispute between them occurred on some trivial issue.
Though the offences under murder or dacoity or robbery are offences
against public at large, we find hardly any substance to indicate the
actual commission of such offences. In these cases, one Raju Udar
had verbal altercation with Abhijit Bankat Pawar and Abhijit gave a
blow of knife on Raju's arm. There is single injury and as per usual
practice, several accused persons are roped in the offence in question.
11 APPLN1858.2017
The allegations of commission of offences under the provisions of the
Atrocities Act are also nullified by the statements made by the
informant on oath. Besides, the offences under the provisions of
Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act
alleged are of verbal nature and not of serious nature. In order to
counter it, another FIR came to be lodged in which offences of
attempt to commit murder and charge of robbery are levelled but
there is no injury at all showing any intention on the part of the
accused therein to commit murder/grievous hurt. It is alleged that,
there was robbery of gold ring of 5 gms and cash of Rs. 5000/- from
two persons.
11. The affidavit of the informant discloses that, after the
incident was over and the parties were calmed down, they came
together and realized that they have made serious allegations against
each other and some minor incidents are blown out of proportion.
They have filed affidavits which completely nullify the allegations of
attempt to commit murder or commission of robbery.
12. It is needless to state that, in the light of these affidavits,
the possibility of conviction is remote and bleak.
12 APPLN1858.2017
13. We find that, both the parties not only belong to the same
village but they belong to different communal groups. When the
parties have amicably settled the dispute between them, the
continuation of these proceedings would disturb the public peace in
the village and it is in the interest of public at large that the dispute
between the parties should be given a quietus. Though the allegations
are serious, same are not supported by any medical evidence and the
affidavits filed by the informant indicate that the complaints were
false or small incidents have been blown out of proportion. Hence,
the applications deserve to be disposed of by quashing both the FIRs.
14. We however find that, both the parties lodged FIRs against
each other and wasted considerable period of police machinery and
Court. Since the matters are settled, it will be proper to dispose them
of by quashing the FIRs but in order to lessen such tendency of
lodging false FIRs, it is necessary to impose exemplary costs upon the
parties. Hence, the following order is passed.
ORDER
(i) Both the Criminal Applications being Criminal
Application No. 1858 of 2017 and Criminal Application
No. 1871 of 2017 are allowed in terms of the
compromise arrived at between the parties.
13 APPLN1858.2017
(ii) FIR bearing Crime No. 21/2017 dt. 16.03.2017
registered against the applicants in Criminal Application
No. 1858 of 2017 with Police Station Bardapur, Dist.
Beed, for the offences punishable under Sections 324,
323, 504, 506, 143, 147, 148. 149 of the Indian Penal
Code and Sections 3(1)(r)(s) of the Scheduled Castes &
Scheduled Tribes (Prevention of Atrocities) Act, is
quashed subject to payment of costs of Rs. 10,000/- to
be payable by respondent No. 2-informant to the
Maharashtra State Legal Services Authority.
(iii) FIR bearing Crime No. 22/2017 dt. 18.03.2017
registered against the applicants in Criminal Application
No. 1871 of 2017 with the Police Station Bardapur,
Dist.Beed for the offences punishable under Sections
395, 397, 506 of the Indian Penal Code is quashed
subject to payment of costs of Rs. 25,000/- to be payable
by respondent No. 2 - informant to the Maharashtra
State Legal Services Authority.
15. Rule made absolute in the above terms.
[ A. M. DHAVALE ] [ S. S. SHINDE ]
JUDGE JUDGE
sgp
