Nikhil Guleria And Ors vs State Of H.P. And Anr
2021 Latest Caselaw 261 HP

               IN      THE
                        HIGH COURT OF HIMACHAL PRADESH, SHIMLA
                                                   Cr.MMO No.419 of 2020
                                                  Date of Decision: 06.1.2021
    _______________________________________________________________




                                                                                         .

    Nikhil Guleria and Ors.                                                                  .........Petitioners

                                                       Versus





    State of H.P. and Anr.                                   ..........Respondents.
    Coram
    Hon'ble Mr. Justice Sandeep Sharma, Judge.
    Whether approved for reporting1?
    For the petitioners          :   Mr. Rajesh Kumar, Advocate.





    For the respondents        :     Mr. Sudhir Bhatnagar, Additional Advocate
                                     General, for the State.
                                     Ms. Shalu Sharma, Advocate, for respondent-
                          r          complainant.

    Sandeep Sharma, J. (Oral)

Through Video Conferencing

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

the petitioners for quashing of FIR No. 86/20 dated 6.10.2020, under

Sections 147, 148, 149, 452, 323, 382, 427 and 506 of IPC, registered with

Police Station Haripur, District Kangra, 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 the

respondent No.2-complainant (herein after referred to as "the

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

complainant"), who alleged that on 6.10.2020, the petitioners

equipped with dangerous weapons entered his shop and started giving

.

him beatings. Respondent No.2 also alleged that the petitioners besides

stealing sum of Rs. 92,000/- from the shop also damaged his property

and as such, appropriate action in accordance with law be taken

against him. In the aforesaid background, though initially case under

Sections 147, 148, 149, 452, 323, 382, 427 and 506 of IPC came to be

registered against the petitioners, but during the investigation,

respondent complainant informed the police that sum of Rs. 92,000/-

allegedly stolen by the petitioners, has been found in the shop itself and

as such, police while filing final challan under Section 173 Cr.PC

dropped Sections 382 and 452 of IPC. After completion of investigation,

police presented 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. On 4.1.2021, this Court having taken note of the averments

contained in the compromise deemed it necessary to cause presence of

parties to the lis, especially, complainant at whose behest FIR sought to be

quashed in the instant proceedings came to be lodged, so that correctness

and genuineness of the compromise placed on record is ascertained.

4. In terms of aforesaid order, complainant namely Vishal has come

present and is duly represented by Ms. Shalu Sharma, Advocate. Complainant

states on oath that he of his own volition and without there being any

external pressure, have entered into compromise with the petitioners-

accused, whereby both the parties have resolved to settle their dispute

.

amicably and he shall have no objection in case FIR sought to be

quashed in the instant proceedings as well as consequent proceedings,

if any, pending before the court below, are ordered to be quashed and

set-aside and petitioners-accused are acquitted. He further stated that

since sum of Rs. 92,000/- was found in the shop itself and he has been

adequately compensated by the petitioners qua the damage caused in the

alleged incident, he with a view to maintain cordial relations with the

petitioners, who otherwise are his neighbours, has entered into compromise,

which bears his signatures. Such statement made on oath is taken on record.

5. Mr. Sudhir Bhatnagar, learned Additional Advocate General,

having heard aforesaid statement made by the complainant states that in

view of the amicable settlement arrived inter-se parties, no fruitful purpose

would be served in case FIR sought to be quashed as well as consequent

proceedings pending before the court below are allowed to sustain and as

such, prayer made in the instant petition may be accepted.

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

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."

.

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 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 r 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 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

- 10 -

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 r 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

- 11 -

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.

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

- 12 -

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.

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

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

- 13 -

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 petitioners and

.

respondent No.2 have compromised the matter interse 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

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

against the petitioners, 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.

86/20 dated 6.10.2020, under Sections 147, 148, 149, 452, 323, 382, 427

and 506 of IPC, registered with Police Station Haripur, District Kangra,

H.P., as well as consequent proceedings pending before the court

below, 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. Copy dasti.

           6th January, 2021                                       (Sandeep Sharma),
                  (Manjit)                                              Judge.