Santosh Dewari @ Tuntu Deori @ ... vs The State Of Jharkhand
2023 Latest Caselaw 4113 Jhar

                                   1                         Cr.M.P. No.3342 of 2023




           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      Cr.M.P. No. 3342 of 2023


      Santosh Dewari @ Tuntu Deori @ Santosh Kr. Debry @ Santosh Deori,
      aged about 35 years, s/o Sukhdew Dewari, R/o Ghosar, P.O. & P.S.-
      Kishor Nagar, Talchar & Dist. Angul (Orissa)
                                             ....              Petitioner
                                    Versus

      1. The State of Jharkhand
      2. Shivraj Baraik, son of Motiram Baraik, r/o Kereya Pahantoli,
           P.O.+P.S.- T. Tangar, Dist.- Simdega
                                             ....               Opp. Parties


                                 PRESENT

          HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
                                     .....

For the Petitioners : Mr. Gopal K. Sinha, Advocate : Mr. Jaydeep Pal, Advocate : Mrs. Pinki Kumari, Advocate : Ms. Chanchal Chhaya, Advocate For the State : Mr. Shailesh Kr. Sinha, Addl. P.P.

For O.P. No.2                 : Mr. Nitesh Kumar, Advocate
                                     .....
By the Court:- Heard the parties.

2. This criminal miscellaneous petition has been filed invoking

the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer

to quash the entire criminal proceeding including the FIR in

connection with T. Tangar P.S. Case No.38 of 2023, corresponding to

G.R. No. 401 of 2023 and also to quash the order taking cognizance

dated 10.10.2023 passed by the learned C.J.M., Simdega as well as to

quash the further proceedings of the said case.

3. Learned counsel for the petitioner and the learned counsel for

the opposite party No.2 jointly draw the attention of this Court

towards the Interlocutory Application No.9944 of 2023 which is

supported by separate affidavits of the Pairvikar of the petitioner and

the opposite party No.2 and submits that therein it has been

mentioned that due to intervention of well-wishers and friends,

compromise has taken place between the parties and presently no

dispute is existing between them. It is next jointly submitted by the

learned counsel for the petitioner and the learned counsel for the

opposite party No.2 that the informant is the owner of a dumper and

while the informant along with driver was going in the said

dumper, the petitioner who was travelling in a Innova vehicle with

the co-accused persons, overtook him and there was a heated

exchange of words between them regarding the overtaking and at

the heat of the moment, the case was instituted. It is further jointly

submitted by the learned counsel for the petitioner and the learned

counsel for the opposite party No.2 that in fact, no offence of

robbery has been committed and the non-occurrence of the offence

of robbery; has been found by the police after due investigation of

the case. Drawing attention of this Court to Annexure-2 at page

Nos.21-28 of the brief, it is submitted by the learned counsel for the

petitioner that police after due investigation of the case, has

submitted charge-sheet against the petitioner for having committed

the offences punishable under Sections 419, 506, 385, 170 and 34 of

Indian Penal Code only but the learned Chief Judicial Magistrate

without any application of mind and without any speaking order

has differed from the Final Form submitted by the police and has

taken cognizance for the offence punishable under Section 392 of

Indian Penal Code as well. It is then jointly submitted by the learned

counsel for the petitioner and the learned counsel for the opposite

party No.2 that in view of the compromise between the parties, the

informant does not want to proceed with the criminal case; hence

the chance of conviction of the petitioner is remote and bleak. It is

further jointly submitted by the learned counsel for the petitioner

and the learned counsel for the opposite party no.2 that no public

policy is involved in the case and the occurrence is a private dispute

between the parties.

4. In support of his contention, learned counsel for the petitioner

relies upon the judgment of the Hon'ble Supreme Court of India in

the case of Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur

& Others vs. State of Gujarat & Another reported in (2017) 9 SCC

641, wherein the Hon'ble Supreme Court of India had the occasion

to consider the jurisdiction of the High Court under Section 482 of

Code of Criminal Procedure inter alia on the basis of compromise

between the parties and has held in paragraph No.11 as under:-

"11. Section 482 is prefaced with an overriding provision. The statute saves the inherent power of the High Court, as a superior court, to make such orders as are necessary (i) to prevent an abuse of the process of any court; or (ii) otherwise to secure the ends of justice.

In Gian Singh [Gian Singh v. State of Punjab, (2012) 10 SCC 303 : (2012) 4 SCC (Civ) 1188 : (2013) 1 SCC (Cri) 160 : (2012) 2 SCC (L&S) 988] a Bench of three learned Judges of this Court adverted to the body of precedent on the subject and laid down guiding principles which the High Court should consider in determining as to whether to quash an FIR or complaint in the exercise of the inherent jurisdiction. The considerations which must weigh with the High Court are : (SCC pp. 342-43, para 61) "61. ... 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 FIR may be exercised where the offender and the 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 a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the 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 predominatingly civil flavour stand on a 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, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the 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 the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding." (Emphasis supplied)"

5. Learned counsel for the petitioner next relies upon the

judgment of Hon'ble Supreme Court of India in the case of Shiji @

Pappu & Others vs. Radhika & Another reported in (2011) 10 SCC

705, wherein the Hon'ble Supreme Court of India dealt with the

considerations to be made by High Court for deciding whether or

not; a prosecution be permitted to continue or be quashed.

6. Learned counsel for the petitioner further relies upon the

judgment of Hon'ble Supreme Court of India in the case of Gian

Singh vs. State of Punjab & Another reported in (2012) 10 SCC 303,

paragraph No. 61 of which reads as under:-

"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 FIR may be exercised where the offender and the 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 a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the 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 predominatingly civil flavour stand on a 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, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the 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 the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding." (Emphasis supplied)

7. Learned counsel for the petitioner next relies upon the

judgment of the Hon'ble Supreme Court of India in the case of

Narinder Singh and Others vs. State of Punjab & Another reported

in (2014) 6 SCC 466 paragraph-29 of which read 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." (Emphasis supplied)

8. Learned counsel for the petitioner in this respect also relied

upon the judgment of Hon'ble Supreme Court of India in the case of

Manoj Sharma vs. State & Others reported in (2008) 16 SCC 1 and

the judgment of Hon'ble Supreme Court of India in the case of

Nikhil Merchant vs. Central Bureau of Investigation & Another

reported in (2008) 9 SCC 677 as well as the judgment of Hon'ble

Supreme Court of India in the case of B.S. Joshi & Others vs. State

of Haryana & Another reported in (2003) 4 SCC 675 as also the

judgment of Hon'ble Supreme Court of India in the case of

Ramgopal & Ors. vs. The State of Madhya Pradesh in Criminal

Appeal Nos.1489 and 1488 of 2012 dated 29.09.2021.

9. Hence, it is submitted that the entire criminal proceeding

including the FIR in connection with T. Tangar P.S. Case No.38 of

2023 corresponding to G.R. No.401 of 2023, order taking cognizance

dated 10.10.2023 passed by the learned C.J.M., Simdega as also any

further proceedings of the said case be quashed and set aside.

10. Learned Additional Public Prosecutor appearing for the State

on the other hand opposes the prayer to quash the entire criminal

proceeding including the FIR in connection with T. Tangar P.S. Case

No.38 of 2023 corresponding to G.R. No.401 of 2023, order taking

cognizance dated 10.10.2023 passed by the learned C.J.M., Simdega

as also the further proceedings of the said case and submits that the

only difference between dacoity and robbery is the involvement of

number of accused persons and as the learned Chief Judicial

Magistrate has taken cognizance for the offence punishable under

Section 392 of Indian Penal Code, hence, trial is required. Hence, it is

submitted that this criminal miscellaneous petition being without

any merit be dismissed.

11. Having heard the rival submissions made at the Bar and after

going through the materials available in the record, the undisputed

fact remains that the occurrence took place consequent upon the

overtaking of the vehicle of the informant by the petitioner and the

co-accused persons. The undisputed fact also remains that the

parties have compromised the case and the informant does not want

to proceed with the case. There is no one else other than the

informant and the driver of the vehicle who were the eye-witnesses

to the alleged occurrence and without their support, the chance of

conviction of the petitioner is obviously remote and bleak.

12. Perusal of the record reveals that the offences involved in this

case are not heinous offences nor is there any serious offence of

mental depravity rather the same relates to private dispute between

the parties and the genesis of the occurrence is overtaking of the

vehicle of the informant by the petitioners in a rash manner.

13. Because of the complete voluntary settlement between the

offender and the victim, the possibility of conviction of the petitioner

is remote and bleak and continuation of the criminal case would put

the petitioner 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.

14. Hence, this Court is of the considered view that this is a fit

case where the entire criminal proceeding including the FIR in

connection with T. Tangar P.S. Case No.38 of 2023 corresponding to

G.R. No.401 of 2023, order taking cognizance dated 10.10.2023

passed by the learned C.J.M., Simdega as also the further

proceedings of the said case, as prayed for by the petitioner, be

quashed and set aside.

15. Accordingly, the entire criminal proceeding including the FIR

in connection with T. Tangar P.S. Case No.38 of 2023 corresponding

to G.R. No.401 of 2023, order taking cognizance dated 10.10.2023

passed by the learned C.J.M., Simdega as also the further

proceedings of the said case is quashed and set aside qua the

petitioner.

16. In the result, this Cr.M.P. stands allowed.

17. In view of the disposal of the instant Cr.M.P., Interlocutory

Application No.9944 of 2023 stands disposed of.

(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 1st November, 2023 AFR/Sonu-Gunjan/-