Yogesh Bhardwaj vs State Of Punjab And Another ...
2021 Latest Caselaw 4844 HP

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       IN   THE   HIGH   COURT OF      HIMACHAL         PRADESH, SHIMLA




                                                              .
                    ON THE 4th DAY OF OCTOBER, 2021





                                    BEFORE

                  HON'BLE MR. JUSTICE SANDEEP SHARMA





      CRIMINAL MISC.PETITION (MAIN) U/S 482 CRPC No. 326 OF 2021
      Between:

      YOGESH BHARDWAJ,





      S/O SH. SANT RAM,
      R/O PHAWA, TEHSIL AND PS
      ARKI, DISTRICT SOLAN, H.P.,
      PRESENTLY RESIDING AT
      BHARDWAJ COTTAGE,

      AIRAHOME, KASUMPTI,
      SHIMLA, HIMACHAL PRADESH,

      AGE 55 YEARS.

                                                             ....PETITIONER



      (BY MR. VIVEK SHARMA,
      ADVOCATE)




      AND





    1. STATE OF HIMACHAL PRADESH.

    2. DR. PREMLATA,





       W/O SH. SORABH DAMRAL,
       R/O B.R. DOGRA NIWAS,
       ENGINE GHAR, SANJAULI,
       SHIMLA-171006,
       DISTRICT SHIMLA,
       AT PRESENT, R/O HOUSE NO. 18,
       WARD NO.1, NEAR POST OFFICE,
       SUNDERBANI, DISTRICT RAJOURI,
       JAMMU, JAMMU AND KASHMIR
                                                            ....RESPONDENTS
      (BY MR. SUDHIR BHATNAGAR AND
      MR. DESH RAJ THAKUR, ADDITIONAL
      ADVOCATES GENERAL WITH MR.
      KAMAL SHARMA AND MR. NARENDER
      THAKUR, DEPUTY ADVOCATES
      GENERAL, FOR R-1.)




                                             ::: Downloaded on - 31/01/2022 23:09:59 :::CIS
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    (BY  MS.  ABHILASHA             KAUNDAL,
    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. 203 of 2009 dated 10.11.2009,

under Sections 509 and 354 of IPC, registered with Police Station

Sadar, District Shimla, H.P., as well as consequent proceedings, if any,

pending before this Court as well as court below, on the basis of

compromise/amicable settlement arrived inter-se parties.

2. Averments contained in the petition, which is duly sup-

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

stant proceedings, came to be lodged at the behest of respondent No.2-

complainant Premlata, who alleged that in the month of November,

2008 and March, 2009, petitioner not only behaved indecently, but also

made an attempt to outrage her modesty. In the aforesaid background,

FIR sought to be quashed in the instant proceedings came to be lodged

against the petitioner. After completion of the investigation, police pre-

sented the challan in the competent court of law. Though petitioner

came to be acquitted of the charges framed against him under Sections

509 and 354 of IPC, by the learned CJM vide judgment dated

26.4.2012, but respondent-State has filed appeal i.e. Cr.A No. 368 of

2012, against the same, which is pending adjudication before this

court. Since during the pendency of the appeal, petitioner and respon-

.

dent No.2 have entered into compromise, petitioner has approached

this Court in the instant proceedings for quashing of FIR as well as

consequent proceedings, if any, pending before this Court as well as in

the competent court of law.

3. On 23.7.2021, this Court while issuing notice to the par-

ties deemed it necessary to cause presence of the parties, especially

respondent No.2, Premlata, at whose behest, FIR sought to be quashed

in the instant proceedings came to be instituted so that factum with

regard to correctness and genuineness of the compromise placed on

record, could be ascertained. Besides above, this Court also directed

the learned Additional Advocate General to verify the factum with re-

gard to compromise. Pursuant to aforesaid order, Mr. Narender Tha-

kur, learned Deputy Advocate General has placed on record communi-

cation received from SHO, PS Sadar, District Shimla, wherein factum

with regard to compromise arrived inter-se parties has been duly ac-

knowledged.

4. Respondent No.2 Dr. Premlata, who is duly represented by

Ms. Abhilasha Kaundal, Advocate, on oath, states that she of her own

volition and without there being any external pressure has entered into

compromise with the petitioner, whereby both the parties have resolved

to settle their dispute amicably inter-se them and as such, shall have

no objection in case FIR as well as consequent proceedings, if any, in-

stituted at her behest are ordered to be quashed and set-aside. She

does not wish to prosecute the FIR instituted at her behest and as

.

such, prayer made in the instant petition be accepted. She accepts her

signatures on the compromise and affidavit. Her statement made on

oath is taken on record.

5. Learned Deputy 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 this Court are allowed to sustain. He states that other-

wise also chances of conviction of the petitioner are very bleak and re-

mote on account of statement made by the respondent-complaint in

this Court and as such, prayer made in the instant petition may be ac-

cepted.

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 oth-

ers 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 pro-

ceedings. 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 sec-

tion 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 ex-

ercised 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 Sec-

tion 482 Cr.PC the Court must have due regard to the nature and grav-

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

exercise the power for quashing proceedings in heinous and serious of-

fences of mental depravity, murder, rape, dacoity etc. However subse-

quently, 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 rarising 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 Bhim-

sinhbhai 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 quash-

ing 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 rsimilar 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, re-

ferred 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 settle-

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

this Court deems it appropriate to quash the FIR as well as conse-

.

quential proceedings thereto, especially keeping in view the fact that

the petitioners= and respondent No.2 have compromised the matter in-

ter-se them, in which case, possibility of conviction is remote/bleak 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 com-

promise being genuine, FIR No. 203 of 2009 dated 10.11.2009, under

Sections 509 and 354 of IPC, registered with Police Station Sadar, Dis-

trict Shimla, H.P., as well as consequent proceedings, if any, 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.

    4th October, 2021                                (Sandeep Sharma),
          (manjit)                                          Judge