Abhishek Mohammad @ Lucky Khan vs State Of H.P & Another
2021 Latest Caselaw 3658 HP

             IN      THE
                  HIGH COURT OF HIMACHAL PRADESH, SHIMLA
                                      Cr.MMO No.310 of 2021
                                      Date of Decision: 06.08.2021
    _______________________________________________________________




                                                                                               .
    Abhishek Mohammad @ Lucky Khan                                                                  .........Petitioner





                                                            Versus

    State of H.P & another.                              ..........Respondents





    Coram:
    Hon'ble Mr. Justice Sandeep Sharma, Judge.
    Whether approved for reporting1?
    _________________________________________________________________
    For the petitioner        :   Mr. Suneel Awasthi, Advocate.





    For the respondents                                :    Mr. Sudhir Bhatnagar and Mr. Desh Raj
                                                            Thakur, Additional Advocate Generals with
                                                            Mr. Narinder Thakur, Deputy Advocate
                                                            General, for respondent No.1-State.


                               Mr. Pardeep Kumar Sharma, Advocate, for
                               respondent No.2.
    _______________________________________________________________
    Sandeep Sharma, J. (Oral):

By way of instant petition filed under Section 482 Cr.P.C, prayer

has been made on behalf of the petitioner for quashing of FIR No. 100 of 2021,

dated 19.06.2021, under Sections 279, 337 of IPC and Section 187 of Motor

Vehicles Act, 1988, registered at Police Station Jawali, District Kangra, H.P.

alongwith subsequent proceedings, if any, pursuant to aforesaid FIR, on the

basis of compromise/amicable settlement arrived inter-se petitioner and

respondent No.2, Kanik (hereinafter referred to as 'complainant').

2. Precisely, the averments contained in the petition, which are duly

supported with an affidavit, reveal that FIR, sought to be quashed in the instant

proceedings, came to be lodged against the petitioner, at the behest of

1Whether reporters of the Local papers are allowed to see the judgment?

complainant, named hereinabove, that on 18.06.2021, while he was going from

his house to his aunt's house at Dhasoli in Car bearing No.54C-4711, being

driven by him, Jeep/Scorpio bearing No.HR26DL-7834, coming from opposite

.

side in a rash and negligent manner being driven by the petitioner, collided with

his Car, as a consequence of which, he sustained injuries and damage was

caused to his vehicle. Though, on the basis of the aforesaid statement made

by the complainant, FIR sought to be quashed in the instant petition, came to

be lodged against the petitioner, but before same could be taken to its logical

end, petitioner and respondents No.2, have entered into compromise, whereby,

they both have resolved to settle their dispute amicably iner se them and as

such, petitioner has approached this Court in the instant proceedings, praying

therein for quashing of FIR alongwith subsequent proceedings, if any,

pursuant to aforesaid FIR.

3. On 19.07.2021, this Court while issuing notice to the respondent,

deemed it necessary to cause presence of respondent No.2, so that

genuineness and correctness of compromise placed on record, could be

ascertained. Besides above, this Court also directed learned Additional

Advocate General to verify the factum with regard to compromise placed on

record.

4. Pursuant to aforesaid order, respondent No.2/complainant Kanik,

has come present in the Court and is being represented by Mr. Pardeep Kumar

Sharma, Advocate. He stated, on oath, before this Court that he of his own

volition and without there being any external pressure, entered into

compromise with the petitioner, whereby both the parties have resolved to

settle their dispute amicably inter se them. He stated that since he has been

duly compensated qua the damage caused to his vehicle in the alleged

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accident by the petitioner and he has also recovered from the minor injuries

sustained by him in the accident, he shall have no objection, in case prayer

made in the instant petition for quashing of FIR alongwith subsequent

proceeding, if any, pursuant to aforesaid FIR, is accepted. He stated that

compromised placed on record bears his Signatures and he does not dispute

the same. Statement of respondent No.2/complainant is taken on record.

5. Mr. Narinder Thakur, learned Deputy Advocate General, stated

that though he has not received any status report from the concerned police

station, but having taken note of compromise placed on record as well as

statement made by the petitioner, on oath, before this Court, no fruitful purpose

would be served in case FIR, sought to be quashed, is allowed to sustain.

Further, he fairly stated before this Court that otherwise also, there are very

remote/bleak chances of conviction of accused in view of the statement given

by respondent No.2/complainant, before this Court and as such, State shall

have no objection in case prayer made in the petition is allowed.

6. Since the petition has been filed under Section 482 Cr.PC, this

Court deems it fit to consider the present petition in the light of the judgment

passed by Hon'ble Apex Court in Narinder Singh and others versus State of

Punjab and another (2014) 6 Supreme Court Cases 466, whereby Hon'ble

Apex Court has formulated guidelines for accepting the settlement and

quashing the proceedings or refusing to accept the settlement with direction to

continue with the criminal proceedings. Perusal of judgment referred above

clearly depicts that in para 29.1, Hon'ble Apex Court has returned the findings

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that 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 great

caution. Para Nos. 29 to 29.7 of the judgment are reproduced as under:-

"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:

29.1Power 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 under Section 482 Cr.P.C the High Court is to form an opinion on either of the aforesaid two objectives.

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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, 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 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 analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are

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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 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".

"32. We find from the impugned order that the sole reason which weighed with the High Court in refusing to accept the settlement between the parties was the nature of injuries. If we

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go by that factor alone, normally we would tend to agree with

the High Court's approach. However, as pointed out hereinafter, some other attendant and inseparable circumstances also need to be kept in mind which compels us to take a different view.

33. We have gone through the FIR as well which was recorded on the basis of statement of the complainant/victim. It gives an indication that the complainant was attacked allegedly

by the accused persons because of some previous dispute between the parties, though nature of dispute, etc. is not stated in detail. However, a very pertinent statement appears on record viz. "respectable persons have been trying for a compromise up

till now, which could not be finalized." This becomes an important aspect. It appears that there have been some

disputes which led to the aforesaid purported attack by the accused on the complainant. In this context when we find that the elders of the village, including Sarpanch, intervened in the matter and the parties have not only buried their hatchet but

have decided to live peacefully in future, this becomes an important consideration. The evidence is yet to be led in the Court. It has not even started. In view of compromise between

parties, there is a minimal chance of the witnesses coming forward in support of the prosecution case. Even though nature

of injuries can still be established by producing the doctor as witness who conduced medical examination, it may become difficult to prove as to who caused these injuries. The chances

of conviction, therefore, appear to be remote. It would, therefore, be unnecessary to drag these proceedings. We, taking all these factors into consideration cumulatively, are of the opinion that the compromise between the parties be accepted and the criminal proceedings arising out of FIR No.121 dated 14.7.2010 registered with police station Lopoke, District Amritsar Rural be quashed. We order accordingly."

7. The Hon'ble Apex Court in case Gian Singh v. State of Punjab

and anr. (2012) 10 SCC 303 has held that power of the High Court in quashing

of the criminal proceedings or FIR or complaint in exercise of its inherent power

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is distinct and different from the power of a Criminal Court for compounding

offences under Section 320 Cr.PC. Even in the judgment passed in Narinder

Singh's case, the Hon'ble Apex Court has held that while exercising inherent

power under Section 482 Cr.PC the Court must have due regard to the nature

and gravity of the crime and its social impact and it cautioned the Courts not to

r to exercise the power for quashing proceedings in heinous and serious offences

of mental depravity, murder, rape, dacoity etc. However subsequently, the

Hon'ble Apex Court in Dimpey Gujral and Ors. vs. Union Territory through

Administrator, UT, Chandigarh and Ors. (2013( 11 SCC 497 has also held as

under:-

"7. In certain decisions of this Court in view of the settlement arrived at by the parties, this Court quashed the FIRs though some of the offences were non-compoundable. A two Judges'

Bench of this court doubted the correctness of those decisions. Learned Judges felt that in those decisions, this court had

permitted compounding of non-compoundable offences. The said issue was, therefore, referred to a larger bench.

The larger Bench in Gian Singh v. State of Punjab (2012) 10 SCC 303 considered the relevant provisions of the Code and the judgments of this court and concluded as under: (SCC pp. 342-43, para 61)

61. The position that emerges from the above discussion can be 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

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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 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." (emphasis supplied)

8. In the light of the above observations of this court in Gian

.

Singh, we feel that this is a case where the continuation of

criminal proceedings would tantamount to abuse of process of law because the alleged offences are not heinous offences showing extreme depravity nor are they against the society.

They are offences of a personal nature and burying them would bring about peace and amity between the two sides. In the circumstances of the case, FIR No. 163 dated 26.10.2006 registered under Section 147, 148, 149, 323, 307, 452 and 506 of the IPC at Police Station Sector 3, Chandigarh and all

consequential proceedings arising there from including the final report presented under Section 173 of the Code and charges framed by the trial Court are hereby quashed.

8. Recently Hon'ble Apex Court in its latest judgment dated 4th

October, 2017, titled as Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur

and others versus State of Gujarat and Another, passed in Criminal Appeal

No.1723 of 2017 arising out of SLP(Crl) No.9549 of 2016, reiterated the

principles/ parameters laid down in Narinder Singh's case supra for accepting

the settlement and quashing the proceedings. It would be profitable to

reproduce para No. 13 to 15 of the judgment herein:

"13. The same principle was followed in Central Bureau of Investigation v. Maninder Singh (2016)1 SCC 389 by a bench of

two learned Judges of this Court. In that case, the High Court had, in the exercise of its inherent power under Section 482 quashed proceedings under Sections 420, 467, 468 and 471 read with Section 120-B of the Penal Code. While allowing the appeal filed by the Central Bureau of Investigation Mr Justice Dipak Misra (as the learned Chief Justice then was) observed that the case involved allegations of forgery of documents to embezzle the funds of the bank. In such a situation, the fact that

the dispute had been settled with the bank would not justify a recourse to thepower under Section 482:

"...In economic offences Court must not only keep in view that

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money has been paid to the bank which has been defrauded but

also the society at large. It is not a case of simple assault or a theft of a trivial amount; but the offence with which we are concerned is well planned and was committed with a deliberate

design with an eye of personal profit regardless of consequence to the society at large. To quash the proceeding merely on the ground that the accused has settled the amount with the bank would be a misplaced sympathy. If the prosecution against the economic offenders are not allowed to

continue, the entire community is aggrieved."

14. In a subsequent decision in State of Tamil Nadu v R Vasanthi Stanley (2016) 1 SCC 376, the court rejected the submission that the first respondent was a woman "who was

following the command of her husband" and had signed certain

documents without being aware of the nature of the fraud which was being perpetrated on the bank. Rejecting the submission, this Court held that:

"... Lack of awareness, knowledge or intent is neither to be considered nor accepted in economic offences. The submission assiduously presented on gender leaves us unimpressed. An

offence under the criminal law is an offence and it does not depend upon the gender of an accused. True it is, there are

certain provisions in Code of Criminal Procedure relating to exercise of jurisdiction Under Section 437, etc. therein but that altogether pertains to a different sphere. A person committing a

murder or getting involved in a financial scam or forgery of documents, cannot claim discharge or acquittal on the ground of her gender as that is neither constitutionally nor statutorily a valid argument. The offence is gender neutral in this case. We say no more on this score..."

"...A grave criminal offence or serious economic offence or for that matter the offence that has the potentiality to create a dent in the financial health of the institutions, is not to be quashed on the ground that there is delay in trial or the principle that when

the matter has been settled it should be quashed to avoid the load on the system..."

15.The broad principles which emerge from the precedents on the subject may be summarized in

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the following propositions:

(i) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to

secure the ends of justice. The provision does not confer new powers. It only recognizes and preserves powers which inhere in the High Court;

(ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal

proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court

is governed by the provisions of Section 320 of the Code

of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non- compoundable.

(iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;

(iv) While the inherent power of the High Court has a

wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;

(v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;

(vi) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the

offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly

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speaking, not private in nature but have a serious impact

upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;

(vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;

(viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate

situations fall for quashing where parties have settled the

dispute;

(ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the

disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and

(x) There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving

the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be

justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.

9. It is quite apparent from the aforesaid exposition of law that High

Court has inherent power to quash criminal proceedings even in those cases

which are not compoundable, but such power is to be exercised sparingly and

with great caution. In the judgments, referred hereinabove, Hon'ble Apex Court

has categorically held that Court while exercising inherent power under Section

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482 Cr.P.C., must have due regard to the nature and gravity of offence sought

to be compounded. Hon'ble Apex Court has though held that heinous and

serious offences of mental depravity, murder, rape, dacoity etc. cannot

appropriately be quashed though the victim or the family of the victim have

settled the dispute, but it has also observed that while exercising its powers,

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. Hon'ble Apex Court has further held that Court

while exercising power under Section 482 Cr.P.C can also be swayed by the

fact that settlement between the parties is going to result in harmony between

them which may improve their future relationship. Hon'ble Apex Court in its

judgment rendered in State of Tamil Nadu supra, has reiterated that Section

482 preserves the inherent powers of the High Court to prevent an abuse of the

process of any court or to secure the ends of justice and has held that the

power to quash under Section 482 is attracted even if the offence is non-

compoundable. In the aforesaid judgment Hon'ble Apex Court has held that

while forming an opinion whether a criminal proceedings or complaint should

be quashed in exercise of its jurisdiction under Section 482, the High Court

must evaluate whether the ends of justice would justify the exercise of the

inherent power.

10. In the case at hand also, offences alleged to have been

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committed by the petitioner do not involve offences of moral turpitude or any

grave/heinous crime, rather same are petty offences, as such, this Court

deems it appropriate to quash the FIR alongwith subsequent proceedings, if

any, especially keeping in view the fact that the petitioner and respondent No.2

have compromised the matter inter se them, in which case, possibility of

11.

r to conviction is remote and no fruitful purpose would be served in continuing with

the criminal proceedings.

Since, the matter stands compromised between the parties and

respondent No.2, is no more interested in pursuing the criminal proceedings

against the petitioner, no fruitful purpose would be served in case proceedings

initiated at the behest of respondent No.2 are allowed to continue, as such,

prayer made in the petition at hand can be accepted.

12. Consequently, in view of the averments contained in the petition

as well as the submissions having been made by the learned counsel for the

parties that the matter has been compromised and keeping in mind the well

settled proposition of law as well as the compromise being genuine, FIR No.

100 of 2021, dated 19.06.2021, under Sections 279, 337 of IPC and Section

187 of Motor Vehicles Act, 1988, registered at Police Station Jawali, District

Kangra, H.P. alongwith subsequent proceedings, if any, pursuant to aforesaid

FIR, are ordered to be quashed and set-aside.

13. The present petition is allowed in the aforesaid terms. Pending

application(s), if any, also stands disposed of.

.

                                                               (Sandeep Sharma)
                                                                    Judge
    6th August, 2021
      (reena)





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