Yash Paul And Others vs Ut Of J&K
2021 Latest Caselaw 1469 j&K

                                                                           Sr. No. 37



        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU

                                                  CRM(M) No. 652/2021
                                                  CrlM No. 1954/2021

Yash Paul and others                                      .....Appellant/Petitioner(s)

                                Through :- Mr. Sandeep Bhat, Advocate
                                           Petitioners in person

                          v/s

UT of J&K                                                          .....Respondent(s)

                                Through :- Mr. Vishal Bharti, Dy. AG


Coram:       HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                    ORDER

The present petition has been filed by the petitioners under section

482 Cr.P.C for quashing the FIR No. 260 dated 12.07.2021 registered with

Police Station, Udhampur for commission of offences under sections 323, 427,

459, 504 and 506 IPC. The petitioner Nos. 1 to 3 have joined the petitioner No.

5 who happens to be the complainant in the said FIR for quashing the FIR

mentioned above on the ground that the parties have settled their dispute

amicably and have placed on record the compromise deed dated 13.10.2021.

The petitioner No. 5 is present in this Court along with her

husband. She is identified by her counsel. The petitioner No. 5 submits that she

has no objection in the event, the said FIR is quashed.

Mr. Vishal Bharti, Dy. AG submits that the appropriate orders

may be passed in the light of present facts and circumstances of the case.

A perusal of the FIR reveals that the same was registered under

sections 323, 354, 427, 458, 504 and 506 IPC and out of above offences,

offences under sections 323, 427, 504 and 506 IPC are compoundable.

However, the offences under sections 458 and 354 IPC are non compoundable.

From the record, it is evident that the dispute between the parties

was primarily with regard to the land and that led to the lodging of the FIRs

against each other. As the dispute was primarily civil in nature so, this Court

deems it proper to quash the offences under sections 354 and 458 IPC as well.

Reliance is placed upon the judgment of Hon'ble the Apex Court

in case titled Shiji @ Pappu and others vs. Radhika and another reported in

2011 (10) SCC 705 in which Hon'ble the Apex Court has quashed the criminal

proceedings under Sections 354 and 394 IPC, when the parties entered into a

compromise.

Reliance is placed on the judgment of the Apex Court in case

titled, State of M.P. v. Laxmi Narayan, (2019) 5 SCC 688, in which the Apex

Court has held:

'14. Now so far as the conflict between the decisions of this Court in Narinder Singh [Narinder Singh v. State of Punjab, (2014) 6 SCC 466 : (2014) 3 SCC (Cri) 54] and Shambhu Kewat [State of Rajasthan v. Shambhu Kewat, (2014) 4 SCC 149 : (2014) 4 SCC (Cri) 781] is concerned, in Shambhu Kewat [State of Rajasthan v. Shambhu Kewat, (2014) 4 SCC 149 : (2014) 4 SCC (Cri) 781] , this Court has noted the difference between the power of compounding of offences conferred on a court under Section 320 CrPC and the powers conferred under Section 482 CrPC for quashing of criminal proceedings by the High Court. In the said decision, this Court further observed that in compounding the offences, the power of a criminal court is circumscribed by the provisions contained in Section 320 CrPC and the court is guided solely and squarely thereby, while, on the other hand, the formation of opinion by the High Court for quashing criminal proceedings or criminal complaint under Section 482 CrPC is guided by the material on record as to whether ends of justice would justify such exercise of power, although ultimate consequence may be acquittal or dismissal of

indictment. However, in the subsequent decision in Narinder Singh [Narinder Singh v. State of Punjab, (2014) 6 SCC 466 :

(2014) 3 SCC (Cri) 54] , the very Bench ultimately concluded in para 29 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 the High Court is to form an opinion on either of the aforesaid two objectives.

29.3. Such a power is not to 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 the 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 hand, those criminal cases having overwhelmingly and predominantly 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 are 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/delicate 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 latter 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 to 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."

In view of what has been stated above, proceedings in the FIR No.

260 dated 12.07.2021 registered with Police Station, Udhampur for

commission of offences under Sections 323, 354, 427, 458, 504 and 506 IPC

are quashed.

The petition stands disposed of accordingly.

(RAJNESH OSWAL) JUDGE JAMMU 16.11.2021 Neha

Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No