Kasim Deen vs Kasim
2021 Latest Caselaw 4001 HP

     IN THE HIGH COURT OF HIMACHAL PRADESH AT
                      SHIMLA




                                                      .
            ON THE 19th DAY OF AUGUST, 2021





                       BEFORE
      HON'BLE MR. JUSTICE ANOOP CHITKARA





 CRIMINAL MISC. PETITION (MAIN) U/S 482 CRPC
                No. 94 of 2021





Between:-
1.    KASIM DEEN,
      S/O SHRI RAJ BALI,
      R/O VILLAGE CHANCHOOL,

      P.O. SANWAL, TEHSIL CHURAH,

      DISTRICT CHAMBA, H.P.
2.    MANJOOR S/O SH. SHAMASH DEEN
      R/O VILLAGE CHANCHOOL,
      P.O. SANWAL, TEHSIL CHURAH,



      DISTRICT CHAMBA, H.P.
3.    SHAH DEEN S/O SH. KASIM DEEN
      R/O VILLAGE CHANCHOOL,




      P.O. SANWAL, TEHSIL CHURAH,
      DISTRICT CHAMBA, H.P.





4.    SHAFI MOHD. S/O SH. KASIM DEEN
      R/O VILLAGE CHANCHOOL,





      P.O. SANWAL, TEHSIL CHURAH,
      DISTRICT CHAMBA, H.P.
5.    KAYUM KHAN S/O SH.KASIM DEEN
      R/O VILLAGE CHANCHOOL,
      P.O. SANWAL, TEHSIL CHURAH,
      DISTRICT CHAMBA, H.P.

                                               ....PETITIONERS.

(BY SH. N.K. THAKUR, SENIOR ADVOCATE WITH MR.
DIVYA RAJ SINGH, ADVOCATE)




                                     ::: Downloaded on - 31/01/2022 22:54:28 :::CIS
                               2




AND

1.    STATE OF HIMACHAL PRADESH




                                                           .

2.    YASEEN S/O SH. ALI MOHD.,
      R/O VILLAGE CHANCHOOL,
      P.O. SANWAL, TEHSIL CHURAH,





      DISTRICT CHAMBA, H.P.

3.    ALI MOHD., S/O SH. REHAMTULLA,
      R/O VILLAGE CHANCHOOL,
      P.O. SANWAL, TEHSIL CHURAH,




      DISTRICT CHAMBA, H.P.

4.    AMINA W/O SH. ALI MOHD.,
      R/O VILLAGE CHANCHOOL,

      P.O. SANWAL, TEHSIL CHURAH,

      DISTRICT CHAMBA, H.P.
                                        .....RESPONDENTS.

(MR. NAND LAL THAKUR, ADDITIONAL ADVOCATE


GENERAL WITH MR. RAM LAL THAKUR & MR. SUNNY
DHATWALIA, ASSISTANT ADVOCATES GENERAL FOR R-1.

MS. ANITA, ADVOCATE AS LEGAL AID COUNSEL FOR R-2




MS. SANA, ADVOCATE AS LEGAL AID COUNSEL FOR R-3





R-4 NOT PRESENT)





          This petition coming on for orders this day, the
Court passed the following:
                          ORDER

FIR NUMBER 51/18 dated 28.04.2018, Police Station Tissa, District Chamba under Sections 307, 325, 451, 147, 149, 323 IPC

TRIAL COURT CASE Sessions Trial No. 28 of 2018, pending NO. before learned Sessions Judge, Chamba, District Chamba, H.P.

The accused-petitioners have come up before this Court by filing the present petition under Section 482

.

Cr.P.C., for quashing of the above captioned FIR.

2. On 27th April, 2018, Civil Hospital, Tissa, District

Chamba, informed the police Station, Tissa that the persons injured in assault have been brought there. Upon that

information, Additional SHO of Police Station, visited Civil Hospital, which was at a distance of six kilometers. On reaching the Hospital, the Additional SHO, recorded the

statement of Yaseen (respondent No.2) under Section 154

Cr.P.C. The complainant alleged that he is an agriculturist by profession and at 4.00 p.m., when after working at his

fields, he along with his father Ali Mohd., respondent No.3 and mother Amina respondent No.4, were sitting on the slab

of their house, Kasim Deen (A-1/P-1), Shamsh Deen,

Kayum Khan (A-5/P-6), Shafi Mohd., (A-4/P-4), Manjoor (A-2/P-2) Hanifa, Praveen, visited their house with a

common intention.

3. On reaching there, without any rhyme and reason, they started giving beatings to them. Shafi Mohd., (A-4) and Shah Deen (A-3) caught hold of Ali Mohd., and Kayum Khan (A-5), who was carrying spade, hit Ali Mohd., on his head with the same. Remaining persons gave beatings to the complainant and his mother Amina with fists and kicks.

Shafi Mohd., and Shah Deen, who were carrying sticks gave beating with it. While beating they took them to their

.

fields. On hearing their shrieks, number of people

assembled there. Villagers namely Mohd. Rafiq and Ayub

Khan, saved them from their clutches. The complainant further alleged that the aforesaid people with their common object have given beatings to them and sought action. This

statement was recorded and signed by the informant. Based on this information FIR captioned above was registered in

the police Station.

4. During investigation, the investigator procured MLCs of all injured Yaseen, Ali Mohd., and Amina. As per

the MLC dated 27.4.2018, which is annexed with the petition, Yaseen (R-2) had received simple injuries.

Similarly, as per the MLC of Amina, she had also received

simple injuries. However, as depicted from the MLC of Ali Mohd., he had received the following injuries:

1) Lacerated wound of size 10x12 cm, deep with bleed, parieto - occipital (lt).

2) 2 small laceration over right eye brow (1x2 cm), over outer canthus of right eye (2x3 cm)

3) complaining pain left shoulder, tenderness(+), range of movement decreased, small abrasion over the shoulder and chest (1x2 cm)

5. He was referred to X-ray and after receipt of radiological opinion, the doctor opined as follows:

.

"There is mild displaced fracture of Nasal

bone (left side). Hence injury is grievous.

There is small subgaleal Haematoma in occiput region (left side).

Injury (1) is dangerous to life (If proper

treatment of this is not taken by patient) Injury (3) (According to X ray left shoulder

radiologist opinion) There is fracture of

Acromian process left side. Hence injury (3) is Grievous in nature."

6. Based on this information the police registered FIR initially under Sections 451, 147, 149, 323 IPC.

Subsequently, during the course of investigation, it was

altered and offences under Section 307, 325 IPC were added. During the course of investigation, the police also

recovered the weapon of offences. After completion of the investigation, the officer incharge of Police station launched prosecution by filing report under Section 173(2) CrPC.

7. The trial is pending before learned Sessions Judge, Chamba. Now the accused and the respondents entered into an out of Court compromise, a copy whereof is Annexure

P-2. The complainant also gave an affidavit in support of the said compromise. This compromise reads as follows:-

.

We the humble applicants and the Accused persons are

the resident of aforesaid addresses and respectable persons of the concerned ilaka/society. We have

amicably settled the above said case with the interventions of the respectable of the society, so we want to end the litigation and to maintain good relation

to each other, entered into the compromise. undertake that in future not to indulge into any illegal

activities and to live peacefully."

We

8. After this the accused have come up before this Court by filing the present petition under Section 482

Cr.P.C. for quashing of the above captioned FIR and all

consequential proceedings.

9. The State has filed reply, in which it has been

alleged that the offences are heinous in nature and are

against the society, hence cannot be quashed. The reply is supported by the affidavit of Superintendent of Police, Chamba. Paragraph 5 of the reply reads as follows:-

"5. That the contents of para No.5 of the petition are wrong hence, denied. It is submitted that challan has been filed in the trial Court on the basis of cogent, convincing and reliable evidence on record. Petitioners have been charged by the trial Court on the basis of

evidences on record. Examination of prosecution witnesses has also been started. Hence, it would be in the

.

interest of justice, if the case is decided by the trial Court

on merits at this stage."

10. I have heard Mr. N.K. Thakur, learned Senior Advocate assisted by Mr. Divya Raj Singh, Advocate for the petitioners and Mr. Nand Lal Thakur, learned Additional

11.

r to Advocate General for the respondent-State.

On 12th August, 2021, complainant Yaseen and Ali Mohd., had appeared in this Court and made statement on

oath that they have compromised the entire matter without any coercion, duress and pressure vide compromise deed

Annexure P-2.

12. Mr. Nand Lal Thakur, learned Additional Advocate General has opposed the compromise and stated that even if

the statements of the parties have been recorded i.e. before

this Court has arrived at a conclusion that whether to quash the FIR or not and on this ground alone, the FIR cannot be quashed.

13. I have gone through the pleadings in detail. The prayer clause of the petition reads as follows:-

It is, therefore, respectfully prayed that the present petition may very kindly be allowed and FIR

No.51/2018, dated 28.4.2018, registered under Section 307, 325, 451, 147, 149, 323 IPC, at P.S.

.

Tissa, District Chamba, H.P. and consequent

proceedings in Criminal Case/Session Trial bearing registration No.28/2018 titled as State vs. Kasim

Deen, and also the charge framed on 04-04-2019, pending before Ld. Sessions Judge, Chamba, H.P., may kindly be quashed and set-aside or any such

other or further order which the Hon'ble Court may deem fit be also passed."

14. Although the petitioner is seeking quashing of

framing of charges, but the copy of the said charge has not been placed on record. After the launch of the prosecution

once the Court after taking cognizance framed charges, then the FIR and the police report under Section 173(2) comes to

an end and it is substituted by the order framing of charges

as well as the charge. In case any accused is aggrieved by framing of charge, the remedy available to such person is to

challenge the order directing framing of charges as well as the charge by annexing its copy. In the present petition a cryptic prayer has been made to quash charges framed on 4.4.2019, but the copy of the order framing charges and copy of charge itself has not been annexed with the petition.

15. In Reena Devi and others Versus State of Himachal Pradesh, this Court has held as under:-

.

5. The respondent, through Superintendent of Police, Hamirpur, HP, filed a reply affidavit to this

petition. In Paragraph No.7 of the response, he states that on 19.3.2019, the trial Court, based upon the police report, have already framed charges

against the accused. Shri Nand Lal Thakur, Addl. Advocate General, appearing for the State of HP contended that the Petitioners 2 to 4, who are

accused and against whom the charges stand

framed, have neither challenged the order framing the charges nor the charges as spelled out in the Form No. 32 of the Second Schedule of CrPC, or

placed on record the copies of these orders, as such the petition is not maintainable. His second contention is that once charges have been framed,

then even for quashing of the same, on any ground,

be it compromise or on merits, the legal recourse available is by filing a Criminal Revision petition under Section 397/401 CrPC and not by filing a

petition under section 482 CrPC.

6. Adverting to the first contention, the present petition was filed on 24.4.2019, i.e., after the framing of charges on 19.03.2019. In the first Paragraph of the petition, the averments are for quashing of FIR and for setting aside of consequent proceedings, and the same is the prayer of the petitioners. Since the charges have been framed then to cull the criminal proceedings, such an order needs to be set aside.

The Petitioners neither placed with the petition the order framing charges nor the Form No. 32 of the Second Schedule of CrPC; as such the Petition is

.

defective and not maintainable.

7. To answer the second contention of Ld. Additional Advocate General, a survey of

fundamental provisions of CrPC, from the setting into motion of the criminal machinery and its final termination, is required. The proposition of law that

emerges is which remedy is available to the accused persons, who want to challenge the criminal charges framed against them, whether it is by filing a Criminal

Revision Petition, under Ss. 397, 401 CrPC or 482

CrPC. In the present case, the scope of Article 227 of the Constitution of India is not under consideration.

8. Before discussing this proposition, it is apposite

to state that compoundable criminal cases can be compromised at any stage. The best illustration would be the case involving an offence, which is

compoundable under Section 320 of the CrPC. The

Court can permit compounding of such matter at any stage, be it in Trial, Appeal or Revision. Even post- conviction, such an offence is compoundable under

Section 320 CrPC. However, in those cases, not listed under the schedule of S. 320 CrPC, a petition under section 482 CrPC would be maintainable for quashing of all proceedings, based on the compromise or otherwise, as the case may be. The reason is the absence of any remedy available under the CrPC.

9. Before arriving at any conclusion to ascertain the appropriate remedy for an accused, against

whom, a notice of accusation has been issued, or the charge has been framed and who wants to challenge the same, the tour of the following stages will give

.

the required exposure.

Stage-1 The most prominent and the earliest provision which ignites the engine of criminal law and

brings it into motion is the registration of FIR, under Section 154 of the CrPC. Needless to say, this provision confines to cognizable offences. After the

investigation, if in the opinion of the Station House Officer, a case for the prosecution is made out, then he files a report under Section 173 of the CrPC. Any

person arraigned as an accused in such FIR can

seek its quashing from High Court having jurisdiction, by filing a petition under section 482 CrPC. Stage-2 Section 190 of the CrPC, envisages

three situations, upon which the Magistrate can take cognizance of offence, namely, (a) Upon receiving a complaint of facts which constitutes such offence; (b)

Upon a Police Report of such facts; (c) Upon

information received from any person other than a Police Officer or upon his own knowledge that such an offence has been committed. Exercising powers

under Section 204 of CrPC, the Magistrate taking cognizance of offences, may proceed against an accused, if he believes in the existence of sufficient grounds for proceeding. Any person who has been arraigned as an accused and is aggrieved either by registration of FIR or filing of charge-sheet or taking cognizance or issuance of the process can seek adjudication under Section 482 of the CrPC. Order taking cognizance can also be challenged by filing a

revision petition, in the Sessions Court or High Court. There will be a situation where after the filing of the petition for quashing of FIR, in the meantime, the

.

charge-sheet is filed; the law is no more res Integra that in all those cases, FIR and all consequential proceedings can be quashed. An

accused cannot approach a Sessions Court till this stage because the only available statutory remedy is by invoking inherent powers of High Court under

Section 482 of the CrPC.

Stage-3 The next stage in criminal proceedings is similar to transformation of a caterpillar emerging as

a butterfly and it begins on the framing of charges

under Sections 211, and 228 of CrPC or on issuance of notice of accusation under Section 251 of the CrPC. If not challenged, it shall culminate under

section 229, 241 or 248 of the CrPC only by a judgment of acquittal or conviction. Once charges stand framed or the notice of accusation stands

issued, as the case may be, then the appropriate

remedy to challenge the same is only by filing Criminal Revision Petition in the Court where it lies and not by filing a petition under section 482 CrPC.

Stage-4 The next stage is post conviction or acquittal. A judgment of conviction can only be challenged under Chapter-29 of the CrPC (Sections 372 to 394). During the pendency of such an appeal, the parties may file an application for compounding of the offences but such applications in appeal, would be within and not without. A convict cannot bye-pass Chapter 29 and instead of filing a statutory appeal before the First Appellate Court cannot

straightaway resort to Sections 397, 401 and 482 of the CrPC.

Stage-5 The next stage is challenging the

.

dismissal of the appeals of the convicts and that can be done by approaching the Courts under its Revisionary Jurisdiction, under section 397-401

CrPC. During the pendency of such Revision Petitions, if parties compound the offences, then the process is similar to that in the appeals.

10. The other stages, if any, would also tread the similar path and cross the similar obstacles.

11. The above survey leads to an irresistible

conclusion that once charges have been framed,

then the remedy is not to file petition under Section 482 of the CrPC but to invoke the revisionary jurisdiction under section 397 & 401 CrPC. However,

in the present petition, what is sought to be quashed is FIR and all consequential proceedings, based upon the out of court compromise entered between

the victim and the accused and the challenge is not

on the merits of charges or accusations.

12. Thus the question that needs an answer is as follows,

What remedy is available to an accused who has compromised the offence after the charges have been framed or notice of accusation issued and before the pronouncement of the final judgment by the trial court?

13. As already discussed in Stage 2, charges and notices of accusation can be challenged on merits, only by invoking revisionary jurisdiction, within the prescribed period of limitation. However, if parties

compound the offence in the interregnum period of post charge pre judgment stage, than the matter for consideration before the Court would not be to

.

assess the merits of charge but a finding on the compromise. After the compounding, the continuation of criminal proceedings would amount to abuse of

process of law resulting in the miscarriage of Justice. Thus, the charges or the notice of accusations can also be quashed by filing a petition under section 482

CrPC, invoking the inherent jurisdiction of the High Court.

14. Now, adverting to the averments made in the

present petition, the Petitioners have carefully

worded it as "quashing the FIR and all consequential proceedings," but such nomenclature would not mean quashing of charges. Moreover, although the

quashing petition was filed after the framing of charges, but the petitioner did not place on the record even the copy of the order of framing of the

charge. Therefore, this petition is defective.

16. Given above, this petition, in the present form, is defective and cannot be entertained. Consequently, the

petition is dismissed with liberty reserved to file afresh in accordance with law, if so desires.

17. It is clarified that the dismissal of this petition on technical grounds shall not come in the way for filing new petition. It is also clarified that it shall be open for the petitioner to refer to the documents annexed with this petition without filing it afresh. It is further clarified that

since the parties had entered into this compromise in good faith and similarly had made statements on oath in this

.

Court in good faith. As such neither the compromise nor

the statements made before this Court shall be read in

evidence during the trial.

Petition dismissed.

                                               (Anoop Chitkara)
    August 19, 2021(ps)                             Judge