Prabha Mishra & Ors. vs Stae & Anr.
2014 Latest Caselaw 6171 Del

$~31
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CRL.M.C. 5390/2014
       PRABHA MISHRA & ORS.                                 ..... Petitioners
                              Through:   Mr. Satish Sharma & Mr. Bhisham
                                         Singh, Advs.
                                         Petitioner No.4 in person.
                              versus

       STATE & ANR.                                        ..... Respondents
                              Through:   Mr. P.K. Mishra, APP for the State.
                                         IO SI Megh Raj, P.S. Badarpur.
                                         Mr. Alamgir, Adv. for R-2 along with
                                         respondent No.2.

       CORAM:
       HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

       % SUDERSHAN KUMAR MISRA, J. (ORAL)

1. This petition has been moved under Section 482 of the Code of Criminal Procedure seeking quashing of FIR No.130/2009 registered under Sections 452/323/34 IPC at Police Station Badarpur, Delhi on 09.04.2009 on the ground that the matter has been settled between the parties.

2. Issue notice.

3. Counsel for the State and respondent No.2/complainant enter appearance and accept notice. The complainant, Sh. Sanjiv Kumar Upadhyay is present in person. The Investigating Officer, SI Megh Raj, Police Station Badarpur, who is also present in Court, identifies the complainant, who is arrayed as respondent No. 2 in this petition.

4. The FIR came to be lodged at the instance of the complainant as a result of certain disputes that had arisen between the parties about a shop being run by the complainant on a tenancy from the petitioners.

5. It appears that some altercation took place between the parties on 07.04.2009 which escalated. It has also been alleged that, in fact, the petitioners were actually desirous to have their shop vacated; and at the same time the first petitioner filed criminal complaint No. 205/1/09 against the complainant and his brother Manoj as well as the complainant's wife Mamta.

6. Charge-sheet in the matter is stated to have been duly filed and while framing charge Learned Metropolitan Magistrate added Section 354 IPC.

7. In a reference by Metropolitan Magistrate hearing the matter in connection with the aforesaid FIR No. 130/2009, the parties arrived at a settlement on 16.09.2014 before the Mediation Centre, Saket Courts, New Delhi. The terms and conditions of the settlement have also been annexed with this petition. In terms of the Settlement petitioners had agreed to pay a sum of Rs. 4,21,000/- in full and final settlement to the complainant-second respondent herein. In addition, as also agreed, the aforesaid complaint bearing No. 205/1/09 moved by the first petitioner was also duly withdrawn. Further, counsel for the petitioner states, on instructions from the petitioner, that any reasonable amount as directed by this court in this matter, shall be paid as costs by the petitioner.

8. The entire settlement amount of Rs. 4,21,000/- has been paid to

the complainant by way of a demand draft bearing No. 740595 dated 09.09.2014 drawn on Kotak Mahindra Bank, Delhi, Lok Vihar. The complainant approbates the aforesaid settlement and undertakes to this Court to be bound by the settlement. This undertaking is accepted by this court. He further states that he has now no grievance against the petitioner and that he does not wish to continue the matter any further and that the same be closed.

9. In addition, counsel for the petitioner No.1 Prabha Mishra, on instructions from his client undertakes to this Court that the aforesaid complaint case bearing No. 205/1/09 shall also be duly withdrawn by his client in the concerned court on the next date. The fourth petitioner Sh. Girish Chand Mishra, who is also the husband of the first petitioner is present in Court. He also undertakes to this Court that the aforesaid proceedings shall be duly withdrawn as agreed between the parties.

10. Counsel for the State submits that looking to the overall circumstances, and since the parties have already settled all their disputes on terms, no useful purpose will be served in continuing with these proceedings and which appears to have primarily involved a landlord/tenant dispute among neighbours; and where the complainant is no longer interested in supporting the prosecution.

11. Looking to the decision of the Supreme Court in Gian Singh v. State of Punjab, (2012) 10 SCC 303, which has referred to a number of matters for the proposition that even a non-compoundable offence can also be quashed on the basis of a settlement between the offender

and the victim, if the circumstances so warrant; and also Narinder Singh and Ors. v. State of Punjab and Anr. 2014(2) Crimes 67 (SC) where the Supreme Court held as follows:-

"29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:

29.1 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.

29.2 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. 29.3 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. 29.4 On the other hand, 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. 29.5 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.

29.6 Offences under Section 307 Indian Penal Code 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 Indian Penal Code 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 307Indian Penal Code is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 Indian Penal Code. 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.

29.7 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 Indian Penal Code 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 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 Indian Penal Code 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."

And the judgment of this Court in Basara and Ors. v. State and Anr. in Crl. M.C. No. 6621-24/2006 decided on 3rd September, 2007, wherein it was, inter alia, held as under:-

"14. .......Peace has been brought in the locality with the intervention of the well wishers of the locality. When there is peace in locality, there will be peace in the town. When there is peace in town, there will be peace in city. When there is peace in city, there will be peace in State. When there is peace in State, there will be peace in country.....

15. The petition is according allowed. FIR No.4/2005 registered against the petitioners under Section 307 read with Section 34 IPC with Police station Samay Pur Badli is quashed and all consequent proceedings pursuant thereto are also ordered to be dropped."

I am of the considered opinion that the circumstances of the case require that it is best to give a quietus to the matter that had arisen out of a landlord/tenant dispute among neighbours which has resulted in some minor injuries and since the complainant is no longer interested in supporting the prosecution, thereby diminishing its chances of success.

12. Consequently, FIR No. 130/2009 registered under Sections 452/323/34 IPC at Police Station Badarpur, New Delhi on 09.04.09 and all

proceedings emanating therefrom, are hereby quashed subject to payment of costs of Rs. 25,000/ to be deposited with Indigent and Disabled Lawyers Fund of Bar Council of Delhi, within a week from today. Proof of payment of costs shall be filed in the Registry within one week thereafter with a copy to the Investigating Officer.

13. The petition stands disposed off.

14. Dasti.

SUDERSHAN KUMAR MISRA, J

NOVEMBER 26, 2014 nk