Mohd. Azhar And Others vs State
2009 Latest Caselaw 4553 Del

               IN THE HIGH COURT OF DELHI AT NEW DELHI

                          Crl. M.C. No. 3614/2009

                          Judgment delivered on: November 10,2009

Mohd.Azhar and Other                                      .....Petitioner.


                          Through:      Mr. Zafar Sadique, Advocate
                                        Mr. Rajesh Arora, Advocate

                               versus

State                                          ..... Respondents

                          Through: Ms. Sanjay Lao, for the State.


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR,


1. Whether the Reporters of local papers may                    Yes
   be allowed to see the judgment?

2. To be referred to Reporter or not?                           Yes

3. Whether the judgment should be reported                      Yes
   in the Digest?


KAILASH GAMBHIR, J. Oral:
*

This order shall dispose of two separate petitions filed

under Section 482 Cr.P.C. seeking quashing of FIR Nos. 8/2006

and 334/2006 respectively.

Criminal M.C. No. 3614/2009 has been filed by four

petitioners , namely, Mohd. Azhar, Liyaqat Choudhary @ Guddu

Tyagi, Shakeel Ahmad and Mr. Farhat Ali Khan for quashing FIR No.

8/2006 registered under Sections 307/120-B/34 IPC. This FIR has

been lodged at the instance of complainant Abhay Singh, who is

one of the accused in other FIR.

Criminal M.C. No. 3613/2009 has been filed by Abhay

Singh, Surender and Satpal for quashing of FIR No. 334/2006

registered under Section 307/34 IPC at P.S. New Friends Colony.

This FIR has been registered at the instance of complainant Mohd.

Azhar who is one of the accused in FIR No. 8/2006.

Mohd Azhar and Abhay Singh have approached the

court seeking quashing of the said FIR's registered by them

against each other on the basis of the compromise.

Both the parties are present in court along with their

respective advocates. IO is also present in court.

Both the counsel submit that parties have entered into

a compromise vide compromise deed executed in the month of

August, 2009. Counsel for the parties submit that due to the

intervention of respectable persons of the locality and common

friends from both the sides, parties have resolved all their disputes

and based on the said compromise both the parties have agreed

to seek quashing of the said FIRs registered by them against each

other.

Counsel for the petitioners in Crl. M.C. No. 3614/2009

submits that earlier also vide orders dated 07.12.2007, this court

had quashed the FIR No. 178/1997 based on the compromise

which involved one of the accused persons, namely, Mohd. Azhar

in the present petition. The contention of the counsel for the

petitioner is that in the said order passed by this court, the court

had taken into consideration the involvement of the petitioner in

some criminal cases which relate to the period when he was a

student. Counsel for the petitioner has also placed reliance on the

judgment of the Supreme Court reported in AIR 2003 SC 1386

B.S. Joshi and others Vs. State of Haryana and Another and

judgments in 2005 (2) JCC 599 Navrang Pal & Ors. Vs. State

and 2003 (69) DRJ 416 (FB) Ramesh Kumar Vs. State, W.P.

(Crl.) No. 659/2003 Jaffar & Others Vs. State , 85 (200) DLT

350 Saleemuddin & Ors. Vs. State & ors. and 2007 (98) DRJ

381 Basara & Ors. Vs. State & Anr., decided by this court.

Counsel for the petitioners also submits that the

prosecution has not been able to collect any evidence to implicate

the petitioners in the said offence as the weapon of offence was

not recovered from him. Counsel also submits that no injury was

sustained by the complainant or any other person in the alleged

incident in question. Counsel further submits that there are only

two cases i.e. FIR No. 319/2002 U/s 420/468/47/34 IPC and FIR No.

187/2004 U/s 341/323/354/380/452/506/34 IPC which are still

pending against the petitioners and in rest of the 13 cases either

the petitioners have been acquitted, discharged or the FIR has

been quashed.

So far as Crl. M.C. No. 3613/2009 is concerned, the

counsel for the petitioners submits that the petitioners were

falsely implicated in the said case. Counsel further submits that in

fact the FIR was registered by the complainant to falsely implicate

the petitioners because of the earlier FIR registered against him at

the instance of the petitioners. Counsel further submits that in

fact the complainant Mohd. Azhar got himself admitted in the

hospital of his own choice without even informing the police.

Counsel further submits that no bullet was recovered from the

body of the complainant and even the medical board of the

hospital opined that the injury was self-inflicted. Counsel thus

submits that in any event of the matter with a view to maintain

cordiality and peace the parties have entered into a compromise

and seek quashing of FIR No. 334/2006.

Mr. Sanjay Lao, Additional Public Prosecutor has

strongly opposed so far quashing of FIR No. 8/2006 is concerned.

He submits that the petitioners are habitual criminals and they

were found involved in number of heinous crimes and other

offences registered against them. Counsel further submits that

except the complainant there is another independent witness Mr.

Sachin who had witnessed the incident in question. Counsel also

submits that the bullet leads and the broken pieces of glass were

seized and sent to FSL for the Expert opinion and the report

received from FSL clearly opined that the spent bullet comes

within the definition of Arms Act. Counsel thus submits that based

on the statement of the independent witnesses and the

circumstantial evidence collected during the investigation, there

are fair chances of the petitioners to be ultimately convicted.

Counsel placed reliance on the judgment of the Apex Court in

Manoj Sharma Vs. State & others 2008 (4) Crimes 359 (SC)

I have heard counsel for the parties at considerable

length and gone through the record.

It is a settled legal position that power under Section

482 Cr.P.C. has to be exercised with great circumspection and in

rare cases. The ultimate objective to be achieved is to serve the

ends of the justice. It would be appropriate to reproduce Section

482 Cr.P.C. :-

Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.

As would be evident the expression used in the said

section "Nothing in this Code" is a non obstante clause, and gives

it overriding effect over other provisions in the Cr.P.C. The words

"or otherwise to secure the ends of justice" in Section 482 are of

very wide amplitude and no fetters can come in the way of the

court while exercising powers under S. 482 Cr.P.C. to pass any

order to secure the ends of justice. In the case of Manoj Sharma

Vs. State after placing reliance on the earlier decisions of the

Apex Court in B.S. Joshi Vs. State of Haryana 2003 (4) SCC

675 and the decision in Nikhil Merchant Vs. Central Bureau

of Investigation & Another JT 2008 (9) SC 192 the Hon'ble

Division Bench comprising of Hon'ble Mr. Justice Altmas Kabir and

Hon'ble Mr. Justice Mr. Markandey Katju directed quashing of the

criminal proceedings arising out of the FIR registered under

section 420/468/471/34/120 B of IPC after allowing the appeal and

setting aside the order of the High Court. While agreeing with the

conclusion of Hon'ble Justice Altamas Kabir, Hon'ble Justice

Markandey Katju penned down a separate judgment.In his

judgment Hon'ble Mr. Justice Katju felt that the question as to

whether quashing can be directed even in non-compoundable

cases or not based on the compromise requires consideration by

the larger Bench. At the same time in para 23 the Hon'ble Judge

observed that the proceedings in non-compoundable cases cannot

be quashed by the High Court in exercise of its power under

Section 482 Cr.P.C. or in writ jurisdiction on the basis of

compromise. The said observations of Hon'ble Justice Katju with

great respect are contrary to the various decisions by the Apex

Court in the case of B.S. Joshi Vs. State of Haryana 2003 (4)

SCC 675 and Nikhil Merchant Vs. CBI & Anr., JT 2008 (9)

SC 192

Coming back to the facts of the present two FIRs, so far

as FIR No. 334/06 is concerned, there is no difficulty in quashing

the same in view of the stand taken by the State in the Status

report. In the status report the State has mentioned that the

medico legal opinion has been taken from the Medical Board of

Holy Family Hospital where the complainant Mohd. Azhar got

admitted without any prior intimation to the police and during

treatment no bullet was recovered from his body. As per the

Status report, Medical Board also opined that the bullet injury

could be self-inflicted. The status report further states that

petitioner Abhay Singh has no previous criminal record except the

said case in question.

Taking into consideration the aforesaid stand of the

State in the FIR No. 334/2006, I am of the view that no useful

purpose would be served in keeping the said FIR and the

proceedings arising therefrom unnecessarily alive any further

against the petitioners. The compromise in a modern society is a

sine qua non of harmony and orderly behavior. The power under

section 482 is exercised to do Ex Debitia Justitia to prevent the

abuse of law and process of court.

In the recent decision of the Apex Court in the case of

CBI Vs. A. Ravishankar Prasad & Ors., JT 2009(6) SC 589,

while analyzing all the prior judgments on the point have said

that the exercise of inherent powers would entirely depend on

the circumstances of each case. The object incorporating

inherent powers in the Code is to prevent abuse of the process

of the court or to secure ends of justice.

The facts of the present case reveal personal enmity

and rivalry and hence the exercise of powers under Section 482

Cr.P.C., keeping in mind the facts of the case at hand would be

wholly to secure the ends of justice. Hon'ble Judge Krishna Iyer

summed up the essence of compromise in the following words:-

"the finest hour of justice arrives propitiously when

parties, despite falling apart, bury the hatchet and weave a

sense of fellowship of reunion."

Consequently, in view of the compromise, the FIR

No. 334/2006 under Section 307/34 IPC registered at P.S. New

Friends Colony and the criminal proceedings arising therefrom

are hereby quashed.

With regard to the FIR No. 8/2006 quashing is sought

based on the same compromise. Since this court has taken a view

to quash the FIR No. 334/2006 where Mohd. Azhar happens to be

the complainant therefore it will be in the fitness of things not to

allow any kind of animosity between the two parties once they

have settled all their disputes based on the compromise. At the

same time one cannot be oblivious of fact that petitioner Mohd.

Azhar has been involved in as many as 16 cases and the entire

track record of the petitioner shows that his antecedents are not

clean and are of criminal nature. As per counsel for the petitioners

most of the cases where the petitioner Mohd. Azhar was involved

either have been quashed or the petitioner has been discharged

and only two cases are pending. Counsel thus submits that a

lenient view be taken against the petitioner Mohd. Azhar and

other accused persons who have already mend their ways. The

past record and antecedents of a person always haunts him like a

shadow but wherever possible depending upon the facts of a case

a criminal must get a fair chance to reform himself. The petitioner

Mohd. Azhar in the facts of the present case deserves one such

chance to improve himself.

This view is also being taken by this court because in

the said FIR although there are serious allegations that the

petitioners had fired on the complainant but since he escaped and

did not receive any injury in the incident and also the fact that the

weapon of offence was not recovered from the petitioner. Based

on the compromise FIR No. 8/2006 is also hereby quashed but

subject to costs of Rs.50,000/- on the petitioner No.1 Mohd. Azhar,

and Rs.20,000/- on Mr.Shakeel Ahmad petitioner No.3 and

Rs.10,000/- each on petitioner Nos. 2 and 4. The costs shall be

deposited by the petitioner with the Delhi High Court Bar

Association Lawyers Social Security and Welfare Fund within a

period of two weeks from the date of this order. The receipt of

deposits of cost shall be filed by the petitioners within a period of

three weeks.

With these directions both the petitions are disposed of.

November 10, 2009                             KAILASH GAMBHIR,J
pkv