Himachal Pradesh High Court
Akhilesh Tripathi (Elder ... vs State Of Punjab And Another ... on 25 October, 2021
Bench: Sandeep Sharma
.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 25th DAY OF OCTOBER, 2021
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL MISC.PETITION (MAIN) U/S 482 CRPC No. 252 OF 2020
Between:
1. AKHILESH TRIPATHI (ELDER BROTHER)
SON OF GANESH DUTT TRIPATI,
RESIDENT OF 318, PROFESSORS COLONY
TOWER CHOURAHA, SAPNA SANGEETA ROAD,
INDORE M.P.
2. SUSHMA TRIPATHI (BHABHI)
WIFE OF AKHILESH TRIPATHI
RESIDENT OF 318,
PROFESSORS COLONY TOWER
CHOURAHA, SAPNA SANGEETA ROAD,
INDORE M.P.
3. BHAKTI DIXIT (ELDER SISTER/
SISTER-IN-LAW) WIFE OF SANJAY DIXIT,
RESIDENT OF 318, PROFESSORS COLONY
TOWER CHOURAHA, SAPNA SANGEETA
ROAD, INDORE M.P.
4. MUKTI SHUKLA, ALIAS ANAMIKA SHUKLA
(ELDER SISTER/SISTER-IN-LAW)
WIFE OF SANJAY SHUKLA,
RESIDENT OF 318, PROFESSORS COLONY
TOWER CHOURAHA, SAPNA SANGEETA
ROAD, INDORE M.P.
5. CHINMAYA DIXIT (NEPHEW)
SON OF SANJAY DIXIT,
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RESIDENT OF 318, PROFESSORS COLONY
.
TOWER CHOURAHA, SAPNA SANGEETA
ROAD, INDORE M.P.
6. ANUBHUTI SHUKLA (NIECE),
WIFE OF RUSHIL SHUKLA,
DAUGHTER OF MUKTI SHUKLA,
RESIDENT OF 34-B, SAMPAT FARMS,
5TH CROSS ROAD, BICHOLI MARDANA,
INDORE, M.P.
....PETITIONERS
(BY MR. K.B. KHAJURIA,
ADVOCATE) r
AND
1. MEGHNA TRIPATHI
WIFE OF ABHIJIT TRIPATHI,
RESIDENT OF 318,
PROFESSORS COLONY TOWER
CHOURAHA, SAPNA SANGEETA
ROAD, INDORE M.P.
....RESPONDENT
2. ABHIJIT TRIPATHI, (HUSBAND),
SON OF LATE SH. GANESH DUTT
TRIPATHI, RESIDENT OF 318,
PROFESSORS COLONY TOWER
CHOURAHA, SAPNA SANGEETA
ROAD, INDORE M.P.
....PROFORMA-RESPONDENT
(BY MR. SUDHIR BHATNAGAR
& MR. DESH RAJ THAKUR,
ADDITIONAL ADVOCATES GENERAL
WITH MR. KAMAL SHARMA &
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MR. NARENDER THAKUR,
.
DEPUTY ADVOCATES GENERAL,
FOR R-1-STATE)
(BY MS. ANU TULI AZTA,
ADVOCATE)
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 petitioners for quashing criminal proceedings under the Domestic
Violence Act in Case No. 47/2018, titled as Meghna Tripathi v. Abhijit
Tripathi and Ors, pending before learned ACJM-1, Shimla, H.P., on the
basis of compromise/amicable settlement arrived inter-se parties.
2. Pursuant to order dated 8.9.20921, parties have come present.
Ms. Anu Tuli Azta, learned counsel appearing for respondent No.1, states
that parties have resolved to settle their dispute amicably inter-se them and
as such, proceedings initiated at the behest of the respondent under
Domestic Violence Act, in case No. 47 of 2018, pending before the learned
ACJM-I, Shimla, can be quashed and set-side. She further states that as
per amicable settlement arrived inter-se parties, respondent No.1-Meghna
Tripathi as well as proforma respondent No.2 Abhijit Tripathi have resolved
to get their marriage dissolved by way of mutual consent and in this regard,
they have approached the competent court of law at Indore, Madhya
.
Pradesh and as such, no fruitful purpose would be served by keeping the
proceedings sought to be quashed alive.
3. Ms. Meghna Tripathi, respondent No.1, who is present in the
Court and has been identified by Ms. Anu Tuli Azta, Advocate, states that
she of her own volition and without there being any external pressure has
entered into compromise with the parties. She states that besides filing
petition for annulment of their marriage by way of mutual consent in the
competent court of law at Indore (MP), she as well as proforma respondent
No.2 have decided to withdraw all the cases filed by them against each
other in various courts of law and as such, she shall have no objection in
case present petition is allowed and criminal proceedings initiated at her
behest against the petitioners as well as proforma respondent No.2 are
ordered to be quashed and set aside. Her such statement is taken on
record.
4. 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."
5. 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.
6. 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.
7. 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.
8. 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 criminal proceedings thereto,
especially keeping in view the fact that the petitioners and respondent No.1
.
have compromised the matter inter-se them, in which case, possibility of
conviction is remote and bleak and no fruitful purpose would be served in
continuing with the criminal proceedings.
9. Since the matter stands compromised between the parties and
respondent No.1 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.1 are allowed to
continue, as such, prayer made in the petition at hand can be accepted.
10. Consequently, in view of the facts narrated herein above as well
as statement made by respondent No.1, present petition is allowed and
criminal proceedings under the Domestic Violence Act in Case No.
47/2018, titled as Meghna Tripathi v. Abhijit Tripathi and Ors, pending
before learned ACJM-1, Shimla, H.P., are quashed and set-aside. The
present petition is disposed of alongwith Pending application(s), if any.
25th October, 2021 (Sandeep Sharma),
(manjit) Judge
