Ganesh Dutt vs State Of H.P. And Another
2021 Latest Caselaw 3568 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 362 of 2021 Reserved on: 05.08.2021

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                                                                  Date of Decision:05.08.2021





    Ganesh Dutt                                                                         ...Petitioner
                                       Versus





    State of H.P. and another                                                          ...Respondents

    Coram:

The Hon'ble Mr. Justice Anoop Chitkara, Judge.

Whether approved for reporting?1NO ____________________________________________________________________________________________

For the petitioner: Mr. Karan Singh Parmar, Advocate. For the respondents: Mr. Nand Lal Thakur Addl. Advocate General, with

Mr. Kunal Thakur, Deputy Advocate General & Mr. Ram Lal Thakur & Mr. Sunny Dhatwalia, Assistant Advocates

General, for respondent No.1-State.

Ms. Garima Kuthiala, Advocate, Legal Aid Counsel, for respondent No.2.

                               THROUGH VIDEO CONFERENCE
        FIR No.      Dated           Police Station            Sections




        223          29.09.2019      Haroli,   District 279 of IPC and Sections 181,
                                     Una, H.P.          187 and 196 of MV Act.
    Anoop Chitkara, Judge.

The petitioner, arraigned as accused in the FIR mentioned above, has come up before this Court under Section 482, Code of Criminal Procedure, 1973, for

quashing the proceedings because they have compromised the matter.

2. Ld. Counsel for the parties submitted that the parties have resolved the criminal dispute between them and seek quashing of the FIR mentioned above and closure of all consequential proceedings.

ANALYSIS:

3. The following aspects would be relevant to conclude this petition: -

a) Today, i.e. 05.08.2021, the victim was present in the Court. His statement was also recorded, on oath, in which he says that he has compromised the entire matter with the accused without any coercion, duress, pressure, or any

Whether reporters of Local Papers may be allowed to see the judgment?

wrong tactics. He further states that he made the statement in his conscious state of mind and admitted that he is aware that this stand would result in the quashing of F.I.R. against the petitioner.

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b) The parties have amicably settled the matter between them in terms of

the compromise deed (Annexure P-2). The complainant does not dispute this compromise deed.

c) In the given facts, the occurrence does not affect public peace or tranquility.

d) The rejection of compromise may also lead to ill will, and the purpose of

criminal jurisprudence is reformatory in nature and to work for bringing peace in family and society.

e) The pendency of trial affects career and happiness.

f) Even if this case is put to trial, the parties are likely to maintain the stand

they have taken in this compromise, which is expected to result in the accused's

acquittal.

         g)    Accused is the first offender(s).
         h)    The accused is facing prosecution for the last one and half years.



    NON-COMPOUNDABLE OFFENCES CAN BE QUASHED:

4. In the present case, the offence under Section 279 IPC is not compoundable

under Section 320 CrPC. However, the following precedents are relevant. In State of Madhya Pradesh v Laxmi Narayan, Cr.A No. 349 of 2019, decided on 5th of

March, 2019, Hon'ble Supreme Court holds, [13]. Considering the law on the point and the other decisions of this Court on the point, referred to hereinabove, it is

observed and held as under:

i) that the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves;

ii) such power is not to be exercised in those prosecutions which involved 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;

iii) similarly, such power is not to be exercised for the offences under the special statutes like 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

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compromise between the victim and the offender;

iv) offences under Section 307 IPC and the Arms Act etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone, and therefore, the criminal proceedings for the

offence under Section 307 IPC and/or the Arms Act etc. which have a serious impact on the society cannot be quashed in exercise of powers under Section 482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves. 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 it or the prosecution has collected sufficient evidence, which if proved,

would lead to framing 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. However, such an exercise by the High Court would be permissible only after the evidence is collected after

investigation and the charge sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paragraphs 29.6 and 29.7 of the decision of this

Court in the case of Narinder Singh (supra) should be read harmoniously and to be read as a whole and in the circumstances

stated hereinabove;

v) while exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable

offences, which are private in nature and do not have a serious impact on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise etc.

5. In Narinder Singh v State of Punjab, 2014 (2) R.C.R. (Criminal) 482, Supreme Court holds, "[31]. 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:

(I) Power conferred under Section 482 of the Code is to be

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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.

(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 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

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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 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.

CONCLUSION:

6. This Court has inherent powers under Section 482 of the Code of Criminal Procedure to interfere in this kind of matter, and such powers can always be exercised, depending upon the facts and circumstances. Be that as it may, this Court

is inclined to invoke the inherent jurisdiction under section 482 CrPC to quash the FIR and all subsequent proceedings in the peculiar facts and circumstances.

7. Given the entirety of the case and judicial precedents, I am of the considered

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opinion that the continuation of these proceedings will not suffice any fruitful

purpose whatsoever.

8. In Himachal Pradesh Cricket Association v State of Himachal Pradesh,

2018 (4) Crimes 324, Hon'ble Supreme Court holds "[47]. As far as Writ Petition (Criminal) No. 135 of 2017 is concerned, the appellants came to this Court challenging the order of cognizance only because of the reason that matter was

already pending as the appellants had filed the Special Leave Petitions against the order of the High Court rejecting their petition for quashing of the FIR/Chargesheet. Having regard to these peculiar facts, writ petition has also been entertained. In any case, once we hold that FIR needs to be quashed, order of cognizance would

automatically stands vitiated."

9. In Shakuntala Sawhney v Kaushalya Sawhney, (1979) 3 SCR 639, at p 642, Hon'ble Supreme Court observed that the finest hour of Justice arises propitiously when parties, who fell apart, bury the hatchet and weave a sense of fellowship or

reunion.

10. Given above, because of the compromise, this is a fit case where the inherent

jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure is invoked to quash the proceedings mentioned above. The FIR mentioned above is

quashed, and all the consequential proceedings are also quashed and set aside. The bail bonds are accordingly discharged. All pending application(s), if any, stand

closed.

11. In the facts and circumstances peculiar to this case, the petition is allowed in the aforementioned terms.

Copy dasti.

Anoop Chitkara, Judge

August 05, 2021 (R.Atal)