Himachal Pradesh High Court
Abhishek Negi vs State Of Punjab And Another ... on 17 August, 2021
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 17TH DAY OF AUGUST, 2021
BEFORE
.
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL MISC. PETITION (MAIN) U/S 482 CRPC NO. 224 OF 2021
BETWEEN:-
1. ABHISHEK NEGI
SON OF SH. JAISI RAM, OF VILLAGE KANSHO,
P.O. SOLDIG, TEHSIL NICHAR,
DISTRICT KINNAUR, H.P.
2. SH. AKSHAY MEHTA
SON OF SH. SUDHIR KUMAR,
OF VILLAGE NAHAL, P.O. ZAR,
TEHSIL KUMARSAIN, DISTRICT SHIMLA,
H.P.
3. SH. RAJAT VERMA
SON OF SH. KASHMIR SINGH,
RESIDENT OF VILLAGE HATWAR,
TEHSIL GHUMARIN, DISTRICT BILASPUR,
H.P.
4. SH. BIPIN THAKUR
SON OF SH. KRISHAN LAL,
RESIDENT OF VILLAGE TAYAWAL,
P.O. JEORI, TEHSIL RAMPUR,
DISTRICT SHIMLA, H.P.
... PETITIONERS
(BY MR. ASHWANI DHIMAN, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH THE SECRETARY (HOME) TO THE
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2
GOVERNMENT OF H.P. SHIMLA-171002.
2. SH DEVESH GUPTA
SON OF SH. BODH WARDHAN GUPTA,
RESIDENT OF VILLAGE TAKIPUR,
P.O. DHAMEDH, TEHSIL AND DISTRICT KANGRA,
.
H.P.
.. RESPONDENTS
(MR. SUDHIR BHATNAGAR AND
MR. DESH RAJ THAKUR,
ADDITIONAL ADVOCATES GENERAL
WITH MR. R.P. SINGH
AND MR. NARINDER THAKUR,
DEPUTY ADVOCATES GENERAL, FOR R-1
r to
MS. MONIKA SINGH, ADVOCATE, FOR R-2)
This petition coming on for orders this day, the court passed the following:
ORDER
By way of instant petition filed under S.482 CrPC, prayer has
been made on behalf of petitioners-accused (hereinafter, 'accused') for
quashing of FIR No 282 of 2018, dated 10/11.12.2018, registered at Police
Station Sadar, District Shimla under Ss. 452, 323 and 506 IPC alongwith
consequential proceedings, if any, pending in the competent court of law,
on the basis of compromise, (pages 14-17 of paper-book).
2. Averments contained in the petition, which is duly supported
by an affidavit as well as documents placed on record, reveal that the FIR
sought to be quashed in the instant proceedings, came to be lodged at the
behest of the respondent No.2/complainant (hereinafter, 'complainant'), Dr.
Devesh Gupta, who alleged that on 11.12.2018, while he was a student of
final year in Indira Gandhi Medical College, Shimla, petitioners, for no
reason gave him beatings. On the basis of aforesaid complaint, FIR sought
.
to be quashed in the instant proceedings, came to be lodged against the
accused and police, after completion of investigation, filed challan in the
competent court of law, but before the same could be taken to logical end,
petitioners entered into compromise with the complainant and as such,
approached this court for quashing of FIR in question, alongwith
3. to
consequential proceedings pending in the competent court of law.
Vide order dated 27.4.2021, this court while issuing notice to
the parties, deemed it necessary to cause presence of the parties,
especially, the complainant, at whose behest, FIR sought to be quashed in
the instant proceedings, came to be lodged, so that the factum with regard
to correctness of compromise placed on record could be ascertained.
Besides this, this court also directed learned Additional Advocate General
to verify the factum with regard to compromise, if any, arrived inter se
parties. Pursuant to aforesaid order, parties have come present.
Complainant, Dr. Devesh Gupta, who is present in the court and is duly
represented by Ms. Monika Singh, Advocate, states on oath that he of his
own volition and without there being any external pressure has entered
into comprise whereby both the parties have resolved to settle dispute
inter se them amicably and as such, he shall have no objection in case
prayer made by accused for quashing of the FIR in question, is allowed.
He states that the FIR sought to be quashed in the instant proceedings is
the result of misunderstanding and since both the parties have resolved to
.
settle dispute amicably inter se them, he shall have no objection in case
prayer for quashing of the FIR as well as consequential proceedings is
accepted. He has also identified his signatures on the compromise. His
statement is taken on record.
4. Learned Additional Advocate General states that though he
has not received any report from Police Station concerned, but since both
the parties have resolved to settle dispute amicably inter se them,
respondent-State shall have no objection in case prayer made on behalf of
the accused for quashing of the FIR in question alongwith consequential
proceedings, is accepted..
5. The question which now needs consideration is whether FIR
in question can be ordered to be quashed when Hon'ble Apex Court in
Narinder Singh and others versus State of Punjab and another (2014)6
SCC 466 has specifically held that power under S. 482 CrPC is not to be
exercised in the cases 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.
6. At this stage, it would be relevant take note of the judgment
passed by Hon'ble Apex Court in Narinder Singh (supra), whereby the
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 to above clearly depicts that in para 29.1, Hon'ble Apex Court has
returned the findings 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 criminal
proceedings even in those cases which are not compoundable and 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:
29.1 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 under Section 482 Cr.P.C 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, 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 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".
7. Careful perusal of para 29.3 of the judgment suggests that
such a power is not to be exercised in the cases 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. Apart from this, offences 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.
On the other hand, those criminal cases having overwhelmingly and
.
predominantly civil character, particularly arising out of commercial
transactions or arising out of matrimonial relationship or family disputes
may be quashed when the parties have resolved their entire disputes
among themselves.
8. 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 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 of quashment 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 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 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."
9. Hon'ble Apex Court in its 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 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 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 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."
.
10. In the case at hand also, offences alleged to have been
committed by the accused do not involve offences of moral turpitude or
any grave/heinous crime, as such, this court deems it appropriate to quash
the FIR as well as consequential proceedings thereto, especially keeping
in view the fact that the parties have compromised the matter inter se
them, in which case, possibility of conviction is remote and no fruitful
purpose would be served in continuing with the criminal proceedings.
11. Since the matter stands compromised between the parties
and the complainant is no more interested in pursuing the criminal
proceedings against the accused, no fruitful purpose would be served in
case proceedings initiated at the behest of the complainant are allowed to
continue, as such, prayer made in the petition at hand can be accepted.
12. Consequently, in view of the aforesaid discussion as well as
law laid down by the Hon'ble Apex Court (supra), FIR No 282 of 2018,
dated 10/11.12.2018, registered at Police Station Sadar, District Shimla
under Ss. 452, 323 and 506 IPC alongwith consequential proceedings, if
any, pending in the competent court of law, are quashed and set aside.
Petitioners are acquitted of the charges framed against them in the said
FIR/proceedings.
13. The petition stands disposed of in the aforesaid terms,
alongwith all pending applications.
.
(Sandeep Sharma),
Judge
August 17, 2021
(vikrant)
r to
