Himachal Pradesh High Court
Ajay Kumar vs State Of Punjab And Another on 5 August, 2022
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 5TH DAY OF AUGUST, 2022
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
.
CRIMINAL MISC. PETITION (MAIN) U/S 482 CRPC NO. 560 OF 2022
Between:-
1. AJAY KUMAR
S/O SH. JAGDISH CHANDER
R/O VILLAGE DALLA P.O AND TEHSIL DHARKANA,
DISTRICT PHATANKOT, H.P
AT PRESENT RESIDENT OF WARD NO. 7
SHISHAMATI P O DHALPUR,
TEHSIL AND DISTRICT KULLU, HP
AGE 32,
OCCUPATION PRIVATE BUSINESS
PETITIONERS
(BY MR. KARAN KAPOOR, ADVOCATE)
AND
1. STATE OF H.P.
THROUGH SECRETARY (HOME) TO THE GOVT.
OF HIMACHAL PRADESH
2. NISHA DEVI
W/O NIHAL SINGH
R/O VILLAGE KUTLU, THANNA,
P.O CHHEUNR, TEHSIL BHUNTER, HP
AGE 35 YEARS,
3. BELI DEVI
W/O LATE SH. GUDDU RAM,
VILLAGE BHATGRAM, P.O RAISON KULLU, HP
AGE ABOUT 80 YEARS
.. PETITIONERS
Whether approved for reporting:
This petition coming on for orders this day, the court passed the following:
O R D E R
By way of instant petition filed under S. 482 CrPC, prayer has been
made on behalf of the petitioner for quashing of FIR No.172, dated
15.11.2015 under Ss. 279 and 337 IPC registered at Police Station
Bhuntar, District Kullu, Himachal Pradesh alongwith consequential
proceedings pending before learned Chief Judicial Magistrate, Lahul &
Spiti, Himachal Pradesh, on the basis of compromise, Annexure P-2.
.
2. Precisely, the facts of the case, as emerge from the record, are
that the FIR sought to be quashed in the instant proceedings came to be
lodged at the behest of respondent No.2/complainant, Nisha Devi, who
alleged that on 15.11.2015, at 11.30 am, while she alongwith respondent
No.3, her grand mother was crossing road at Bhunter, a scooty bearing
registration No. HP-34D-2343 being driven by petitioner came in high
speed and hit them, due to which they suffered injuries. Though police
after completion of investigation presented Challan in the competent court
of law but before the same could be taken to its logical end, parties have
compromised the matter inter se them amicably, as such, petitioner has
approached this court for in the instant proceedings, for quashing of FIR,
as detailed herein above alongwith consequential proceedings pending in
the competent court of law
3. Vide order dated 4.7.2022, this Court, while directing learned
Additional Advocate General to verify the factum with regard to
compromise, if any arrived inter se parties also directed respondents Nos.
2 to 3 to come present in the court.
4. On 15.7.2022, though learned Additional Advocate General placed
on record communication dated 14.7.2022 issued under the signatures of
Station House Officer, Police Station Bhunter, Himachal Pradesh, perusal
whereof reveals that parties have resolved to settle the dispute inter se
them amicably and compromise placed on record is genuine, but since on
that date, respondents Nos. 2 and 3 were not able to come present, matter
was adjourned.
5. Since learned counsel for the respondent 2 and 3 apprised this
.
Court that respondent No.3 is an old lady and is unable to come present in
this Court, this Court directed learned Chief Judicial Magistrate Kullu to
record statements of respondents Nos. 2 and 3.
6. Pursuant to directions issued by this court, learned Chief Judicial
Magistrate, Kullu, has recorded the statements of respondent No.2 and 3
on 25.7.2022 and has forwarded the same to this court which are taken
on record. Perusal of statements made by respondents Nos. 2 and 3
which are made part of record, clearly reveals that respondent 2 and 3, of
their own volition and without there being any external pressure have
entered into compromise with the petitioner, whereby they have resolved
to settle the dispute inter se them amicably. Both the persons have stated
that they have compromised the matter with the petitioner and have
received amount of compensation in lieu of injuries suffered by them, as
such, they have no objection in case prayer of petitioner for quashing of
FIR and consequential proceedings is accepted. They have admitted their
signatures on compromise.
7. Since the parties have resolved to settle the dispute inter se them
amicably and as per compromise, a sum of Rs.50,000/- stands received
by respondents Nos. 2 and 3, this court finds no impediment in accepting
the prayer made in the instant petition for compounding of offence, while
exercising power under S.482 of the Act.
8. After having heard statement of respondent No.2, learned Assistant
Advocate General states that the chances of conviction of petitioners are
remote and bleak and as such, respondent-State shall have no objection
in case prayer of the petitioners for quashing of FIR alongwith
.
consequential proceedings is allowed.
9. The question which now needs consideration is whether FIR in
question can be ordered to be quashed when Hon'ble Apex Court in
Narinder Singh and others versus State of Punjab and another
(2014)6 SCC 466 has specifically held that power under S. 482 CrPC is
not to be exercised in the cases 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.
10. At this stage, it would be relevant to take note of the judgment
passed by Hon'ble Apex Court in Narinder Singh (supra), whereby the
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 to 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
criminal proceedings even in those cases which are not compoundable
and 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:
29.1 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 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".
11. Careful perusal of para 29.3 of the judgment suggests that such a
power is not to be exercised in the cases 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. Apart from this, offences 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. On the other hand,
those criminal cases having overwhelmingly and predominantly civil
character, particularly arising out of commercial transactions or arising out
of matrimonial relationship or family disputes may be quashed when the
parties have resolved their entire disputes among themselves.
12. 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 of quashment 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."
13.
Hon'ble Apex Court in its 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."
14. In the case at hand, the offences alleged to have been committed
by the accused are petty offences and further in view of the fact that the
complainant has compromised the matter with the accused and
complainant is no more interested in pursuing the case further, there are
bleak and remote chances of conviction of accused and as such, this court
sees no impediment in accepting the prayer made by petitioners for
quashing of FIR. Otherwise also, no fruitful purpose would be served in
case proceedings against the accused are allowed to continue, as such,
prayer made in the petition at hand can be accepted.
15. Consequently, in view of the aforesaid discussion as well as law
laid down by the Hon'ble Apex Court (supra), FIR No.172, dated
15.11.2015 under Ss. 279 and 337 IPC registered at Police Station
Bhuntar, District Kullu, Himachal Pradesh alongwith consequential
proceedings i.e. Case titled State v. Ajay pending before learned Chief
Judicial Magistrate, Kullu, Himachal Pradesh, are quashed and set aside.
Petitioner is acquitted of the charges framed against him in the said
FIR/proceedings.
16. The petition stands disposed of in the aforesaid terms, alongwith all
pending applications.
Copy Dasti.
.
(Sandeep Sharma)
Judge
August 5, 2022
(Vikrant)
r to
