Vijay Kumar vs State Of Punjab And Another ...
2021 Latest Caselaw 5666 HP

    IN      THE   HIGH    COURT    OF   HIMACHAL        PRADESH,            SHIMLA




                                                             .
                       ON THE 10th DAY OF DECEMBER, 2021





                                 BEFORE
                   HON'BLE MR. JUSTICE SANDEEP SHARMA





         CRIMINAL MISC. PETITION (MAIN) U/S 482 CRPC No. 603 OF 2021

            Between:

            VIJAY KUMAR,





            S/O SH. PRAKASH CHAND,
            AGED ABUOT 29 YEARS,
            VILLAGE MANJHOR,
            P.O. BHUKKAR,
            TEHSIL BHORANJ,

            DISTRICT HAMIRPUR, H.P.

                                                                  ...PETITIONER
            (BY MR. MANDEEP CHANDEL
            ADVOCATE)


            AND


    1.      STATE OF HIMACHAL PRADESH




    2.      MR. TUSHAR





            THROUGH HIS LEGAL GUARDIAN/
            FATHER DINESH KUMAR,
            S/O SH. KARTAR SINGH,
            R/O VILLAGE SHAMMU,





            P.O. TARKWARI, TEHSIL BHORANJ,
            DISTRICT HAMIRPUR.
                                                              ....RESPONDENTS
            (MR. SUDHIR BHATNAGAR, AND
            MR. DESH RAJ THAKUR,
            ADDITIONAL ADVOCATES GENERAL,
            WITH MR. NARENDER THAKUR AND
            MR. GAURAV SHARMA,




                                            ::: Downloaded on - 31/01/2022 23:25:15 :::CIS
                                               2




          DEPUTY ADVOCATES GENERAL




                                                                       .
          FOR R-1)





          (BY MR.GAURAV CHAUDHARY,
          ADVOCATE, FOR R-2)

    Whether approved for reporting?.





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

                                          ORDER

By way of instant petition, prayer has been made on behalf of

the petitioner for quashing of FIR No. 26 of 2017 dated 10.2.2017, under

Sections 279 and 337 of IPC and Section 187 of MV Act, registered with

Police Station Bhoranj, District Hamirpur, H.P., as well as consequent

proceedings, if any, pending before the court below, on the basis of

compromise/amicable settlement arrived inter-se parties.

2. Averments contained in the petition, which is duly supported

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

proceedings came to be lodged at the behest of Mr. Dinesh Kumar, who is

the father of respondent No.2-Tushar. Complainant alleged that on

10.2.2017, at 3:00pm, while his son Tushar, who is minor, was coming

back from school, one motorcycle bearing registration No. HP-74-6228,

being driven by the petitioner in rash and negligent manner hit him as a

consequence of which, he suffered injuries. After completion of the

investigation, police presented the challan in the competent court of law,

but before same could be taken to its logical end, parties to the lis have

.

resolved to settle their dispute amicably inter-se them by way of

compromise placed on record.

3. Vide order dated 26.11.2021, this Court with a view to

ascertain genuineness and correctness of the compromise placed on record

deemed it necessary to cause present of the parties, especially, the

complainant, at whose behest, FIR sought to be quashed, came to be

lodged. Besides above, this Court also directed the respondent-State to

verify the factum of compromise, if any, arrived inter-se parties. Though

reply on behalf of the respondent-State is on record, but there is no

mention with regard to the compromise, if any, arrived inter-se parties.

4. Pursuant to aforesaid order, complainant Dinesh Kumar, who

has otherwise not been impleaded as party, has come present and is being

represented by Mr. Gaurav Chaudhery, Advocate. Mr. Dinesh Kumar,

states on oath that he is the father of the Victim-Tushar and of his own

volition and without there being external pressure has entered into

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

settle their dispute amicably inter-se them. He states that since accident

did not occur on account of negligence of the petitioner, coupled with the

fact that his minor son Tushar has fully recovered from the injuries, he

does not wish to prosecute the case further and as such, shall have no

.

objection, in case FIR as well as consequent proceedings initiated at the

behest of the complainant against the petitioner are ordered to be quashed

and set-aside. He admits the contents of the compromise as well as his

signature thereupon. His statement is taken on record.

5. Mr. Gaurav Sharma, learned Deputy Advocate General, having

heard aforesaid statement made by the complainant made in the court,

states that though on account of the compromise arrived inter-se parties,

there appears to be no reason to let the FIR as well as consequent

proceedings sustain, but since minor boy has suffered injuries in the case

at hand, question which remains to be deiced in the instant case is whether

complainant, who is father of the minor can enter into compromise or not

on behalf of the minor. However, he fairly states that otherwise also,

chances of conviction of the petitioner are remote and bleak in view of the

aforesaid statement made by the complainant and as such, respondent-

State shall have no objection in case prayer made in the instant petition is

accepted.

6. True, it is that in the case at hand, Tushar, who is minor son

of the complainant, suffered injuries, but complainant being his father

otherwise is competent and entitled to enter into compromise in terms of

provisions contained under Section 320 (4) (a) of the Cr.PC, which provides

.

that when the person who would otherwise be competent to compound an

offence under this section is under the age of eighteen years or is an idiot

or a lunatic, any person competent to contract on his behalf may, with the

permission of the Court, compound such offence. Needless to say,

complainant herein being father of the minor, who suffered injuries, is

competent to enter into compromise on his behalf. Moreover this court

finds that FIR sought to be quashed has been actually lodged by the

complainant and as such, there appears to be no impediment in accepting

the prayer made in the instant petition for quashing of FIR as well as

consequent proceedings.

7. 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 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.

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".

"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 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."

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 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. 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 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. 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 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.

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

.

committed by the petitioners 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 as well as consequential

proceedings thereto, especially keeping in view the fact that the petitioner

No.1 and complainant have compromised the matter inter-se them, in

which case, possibility of conviction is remote/bleak and no fruitful

purpose would be served in continuing with the criminal proceedings.

12.

Since the matter stands compromised between the parties and

they are no more interested in pursuing the criminal proceedings against

each other, no fruitful purpose would be served in case criminal

proceedings are allowed to continue, as such, prayer made in the petition

at hand can be accepted.

13. 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. 26 of 2017 dated 10.2.2017, under Sections 279 and 337

of IPC and Section 187 of MV Act, registered with Police Station Bhoranj,

District Hamirpur, H.P., as well as consequent proceedings, if any, pending

.

before the court below, are ordered to be quashed and set-aside.

14. The present petition is allowed in the aforesaid terms.

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

    10th December, 2021                            (Sandeep Sharma),





          (manjit)                                       Judge