Aseem Ghai & Ors vs Ut Of J&K & Ors
2023 Latest Caselaw 297 j&K

                                                                           Sr. No. 16



        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                         ATJAMMU

                                                 CRM(M) No. 398/2020

                                                 Reserved on: 15.02.2023
                                                 Pronounced on:20.02.2023

Aseem Ghai & Ors.                                                    .....Petitioner(s)

                                Through :- Mr. Vivek Sharma, Advocate

                         v/s
UT of J&K & Ors.                                                .....Respondent(s)

                                Through :- Mr. Pawan Dev Singh DyAG for R-1to 3
                                           Respondent No.4 present in person

CORAM: HON'BLE MR. JUSTICE MA.CHOWDHARY, JUDGE

                                   ORDER

1. Inherent jurisdiction of this Court under Section 482 CrPC is being

invoked by the petitioners for quashment of challan titled "State of J&Kvs

Aseem Ghai & Ors", pending before the Court of learned 1st Additional

Sessions Judge Jammu(hereinafter „Trial Court‟ for brevity), arising out

of FIR No. 249/2018 registered at Police Station Gandhi Nagar, Jammu

against the petitioners for the commission of offences punishable under

Sections 307, 341, 506 RPC (since repealed penal law of J&K) and

Sections 3/25/30 of Arms Act.

2. The parties are stated to have entered into a compromise and settled their

disputes and differences, whereunder the challan is pending before the

Court of learned 1st Additional Sessions Judge, Jammu, arising out of

impugned FIR registered against the petitioners and consequently, a

compromise deed is placed on record of the instant petition.

3. In view of the compromise so arrived at between the parties, the

petitioners, as also the respondent No. 4 in terms of order dated 13.09.2022

were directed to appear before the Registrar Judicial for recording their

statements in support of the deed of compromise. The statements of the

petitioners, as also the respondent No. 4 have been recorded on 23.09.2022

by the Registrar Judicial, wherein the petitioners namely, Aseem Ghai,

Zohaib Choudhary and Farhan Kohli have stated that they have amicably

resolved all the disputes and issues with complainant Satyajeet-respondent

No.4 and have reached the compromise which was recorded on 26.09.2022.

They further prayed that the final report/challan No.844/2019 titled "State

vs Aseem Ghai & Ors" pending before the Trial Court, arising out of FIR

No. 249/2018 registered at Police Station Gandhi Nagar Jammu, against the

petitioners for the commission of offences punishable under Sections 307,

341, 506 RPC and Sections 3/25/30 of Arms Act as well as the impugned

FIR, be quashed, in view of the compromise reached between the

petitioners and respondent No.4. Similarly, respondent No.4/complainant

namely Satyajeet has also stated that he has entered into a compromise with

all the petitioners/accused in the case and he does not wish to prosecute his

case against them any further and prayed that the final report/challan

No.844/2019 titled "State vs Aseem Ghai & Ors" pending before the Trial

Court, arising out of FIR No. 249/2018 registered at Police Station Gandhi

Nagar Jammu, against the petitioners for the commission of offences

punishable under Sections 307, 341, 506 RPC and Sections 3/25/30 of

Arms Act, as well as, the impugned FIR.

4. Heard learned counsel for the parties and perused the record.

5. A question, in view of the aforesaid factual position, has arisen as to

whether this Court has power to quash the proceedings, particularly when

some of the offences alleged to have been committed by the petitioners, are

non-compoundable in nature.

6. Learned counsel for the petitioners has relied upon the judgment of the

Supreme Court titled "Gian Singh Vs. State of Punjab and Another"

reported in 2012 (10) SCC 303", wherein while considering the aspect of

whether the High Court has power to quash the proceedings when some of

the offences alleged to have been committed which are non-compoundable

in nature, the Apex Court has observed as follows:

"57. 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".

7. Petitioners/accused pleaded following facts:

a) That the respondent No.4 has lodged FIR No. 249/2018 dated 11.11.2018 against the petitioners in Police Station Gandhi Nagar Jammu, for commission of offences under Sections 307, 341, 506 RPC and Section 3/25/30 Arms Act and respondent No.3 in pursuance of the aforementioned FIR, has filed

impugned challan/final report on 08.02.2019, which is pending disposal before the Court of learned 1st Additional Sessions Judge Jammu and till date charges have not been framed against the petitioners, as such, the proceedings are at their initial stage in the aforementioned case.

b) That during the pendency of the abovementioned challan, the petitioners and the respondent No.4 have arrived on a compromise and in pursuance of the same, a compromise deed dated 11.02.2020, has been executed between the petitioners and respondent No.4, in which the respondent No.4 has agreed to withdraw the FIR lodged by him against the petitioners as the dispute in impugned FIR/challan has been amicably resolved by the petitioners and respondent No.4.

8. Official respondents in their counter have stated that the present petition is

not maintainable as the same involves factual disputes which can only be

adjudicated by leading evidence in the case and requires a full dressed trial

by the trial Court. It is averred that on 11.11.2018, complainant namely

Satyajeet S/O Sh. Bhushan Kumar R/O H.No. 115/4 Vikas Nagar Janipur

Jammu, lodged a written report at Police Station Gandhi Nagar to the effect

that on the same day, he along with his friend Alok Singh Pathania and his

brother Danish went to Gandhi Nagar in his car, in the meantime, one

Aseem Ghai along with two other unknown persons abused the

complainant, he stopped his car and told them that why they are abusing,

on this, said Aseem Ghai went into his house and came back with a loaded

pistol, who fired three shots without any cause and told them to leave the

place by abusing them, thereafter the complainant, his friend and brother

left the place to save their lives. During the course of investigation, I.O

visited the spot, prepared the site plan, recorded the statements of witnesses

under Section 161 CrPC. During further investigation, Aseem Ghai was put

to sustained questioning who confessed his involvement along with two

other person namely Zahib Choudhary S/O Mohd Sadaf Choudhary R/O

H.No. 248-A Apsara Road Gandhi Nagar and Farhan Kohli @ Raju

Choudhary S/O Mohd Rafiq R/O H.No. 553 Lane No.02 Rani Talab,

Digiana in the case and on this instance, weapon of offence i.e pistol was

recovered, sent to FSL Jammu and expert opinion obtained. All the accused

persons were bailed out. After completion of all the legal formalities,

offences punishable under sections 307, 34 RPC, 30 Arms Act have been

proved against the accused persons and the challan of the case was

produced in the competent court of law against the petitioners herein, thus

prayed for dismissal of the present petition.

9. In the backdrop of the afore-stated legal position and adverting to the facts

of the instant case, that petitioners had an altercation and heated exchange

with complainant who is a legal practitioner and his two companions on

11.11.2018 at 2.20 AM at Gandhi Nagar; that petitioners not only abused

them but petitioner No.1 also fired shots at them. A case on the complaint

of respondent No.4 was registered at Police Station Gandhi Nagar vide FIR

No. 249/2018 and after investigation, it was concluded that accused namely

Aseem Ghai, Zahib Choudhary and Farhan Kohli, when came out of

accused Aseem Ghai and found complainant and his two companions

outside the gate who were taking photographs, over which altercation

started and the complainant also alleged that they were fired at by all the

accused with the licensed pistol of accused Aseem Ghai, as such, charge

sheet was laid against all the accused/petitioners for the commission of

offences punishable under sections 307, 341, 506 RPC and 3/25/30 Arms

Act.

Besides placing on record, compromise deed between the complainant and

all the accused, petitioners have also placed on record a report issued by

Rajinder Singh Jamwal Ballistic Expert of J&K FSL that signs of discharge

of seized pistol did not reveal a case of fresh fire. No intervention has been

pleaded as to why the pistol shots fired at the complainant or his

companions had deflected from hitting them. In such a situation offence u/s

307 RPC is not constituted. Other offences are minor in nature. In these

facts and circumstances of the case there is no harm in allowing the parties

to act upon the compromise that have reached to secure the ends of justice.

10. The ratio of judgment of Gian Singh's case (supra) makes the legal

proposition abundantly clear that the High Court has inherent powers under

Section 482 CrPC to quash the proceedings to meet the ends of justice if

the parties have settled their disputes amicably by a compromise. Thus, in

view of the amicable settlement between the parties, the possibility of

conviction of the petitioners herein is remote and bleak and continuation of

criminal case rather would put the petitioners to great oppression and

extreme injustice despite full and complete settlement and compromise

having been arrived at with the respondent No. 4 and further continuation

of the proceedings arising out of the FIR in question would be unfair and

contrary to the interests of justice and in essence, would amount to abuse of

process of law.

11. For the reasons discussed hereinabove, the instant petition is allowed and

the challan titled "State of J&K vs Aseem Ghai & Ors", pending before

the Trial Court, arising out of FIR No.249/2018 registered at Police Station

Gandhi Nagar Jammu, against the petitioners for the commission of

offences punishable under Sections 307, 341, 506 RPC and Sections

3/25/30 of Arms Act, along with impugned FIR, in view of compromise

arrived at between the parties, is hereby quashed. Copy of this order be sent

to the Court below as well as SHO Police Station Gandhi Nagar Jammu,

for compliance.

12. Petition, along with pending application(s), if any, is thus disposed of,

accordingly.

(M A Chowdhary) Judge

JAMMU 20.02.2023 Vijay

Whether the order is speaking: Yes Whether the order is reportable: Yes