Raju Bhai @ Rajesh Buha vs The State Of Madhya Pradesh
2024 Latest Caselaw 15089 MP

Madhya Pradesh High Court

Raju Bhai @ Rajesh Buha vs The State Of Madhya Pradesh on 21 May, 2024

Author: Prem Narayan Singh

Bench: Prem Narayan Singh

                                                            1
                          IN     THE      HIGH COURT OF MADHYA PRADESH
                                                AT INDORE
                                                   BEFORE
                                  HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
                                     MISC. CRIMINAL CASE No. 8098 of 2024
                         BETWEEN:-
                         RAJU BHAI @ RAJESH BUHA S/O BHOLA BHAI BUHA,
                         AGED ABOUT 42 YEARS, OCCUPATION: BUSINESS R/O
                         24 VEJALPURA RAMJI MANDIR KE SAMNE SAWAR
                         KUNDLA UMRELI GUJRAJ (GUJARAT)

                                                                                       .....APPLICANT
                         (SHRI AJAY KUMAR MISHRA -ADVOCATE)

                         AND
                         1.    THE STATE OF MADHYA PRADESH STATION
                               HOUSE OFFICER THROUGH POLICE STATION
                               KUKDESHWAR DISTT. NEEMUCH (MADHYA
                               PRADESH)

                         2.    ASHISH S/O NEERAJ KALVADIYA, AGED ABOUT 34
                               Y E A R S , OCCUPATION: BUSINESS TAMBOLI
                               MOHALLA KUKDESHWAR NEEMUCH (MADHYA
                               PRADESH)

                         3.    ASHUL S/O NEERAJ KALVADIYA, AGED ABOUT 30
                               Y E A R S , OCCUPATION: BUSINESS TAMBOLI
                               MOHALLA KUKDESHWAR NEEMUCH (MADHYA
                               PRADESH)

                                                                                   .....RESPONDENTS
                         (SHRI H.S.RATHORE - GOVT. ADVOCATE)
                         (SHRI RITU RAJ BHATNAGAR - ADVOCATE FOR RES.-1)

                                                       Reserved on: 10.05.2024
                                                    Pronounced on: 21.05.2024

                               This application having been heard and reserved for order, coming on
                         for pronouncement this day, the court passed the following:
                                                             ORDER

Heard finally, with the consent of the parties.

The petitioner has filed the present petition under Section 482 of the Code of Criminal Procedure, 1973 seeking quashment of FIR bearing Crime No. 58/2023 registered at Police Station-Kukdeshwar District Neemuch for the offence under Section 306 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") and the consequential proceedings.

2. As per prosecution story deceased Neeraj Kalvadiya and Naresh Patel were neighbours and in the year 2013 Naresh Patel shifted to Ahmedabad. Naresh Patel took money of Rs.95,00,000/- from the deceased for sale of land at Sawer Kundla in the partnership of Naresh, Neeraj and the present applicant. However, it is alleged that the present applicant took the money and registered

the land in his name and also sold the land and misappropriated the amount. Therefore, being aggrieved of this misappropriation, the deceased committed suicide.

3. It is submitted by both the parties that they have settled their dispute amicably.

4 . As per the verification report received from the Principal Registrar, both the parties have settled their dispute amicably and filed applications under Section 320(1) and 320(2) of Cr.P.C for compromise vide I.A. Nos.3119/2024 and 3120/2024.

5. From the aforesaid, it appears that the petitioner and the respondent Nos. 2 &3 have amicably settled their dispute and on the factum of compromise, the petitioner prays for quashment of FIR registered at Crime No.58/2023, registered at Police Station Kukdeshwar, District Neemuch, for offence under Section 306 of IPC and the consequential proceedings arising out of it.

6. However, learned State Counsel has opposed the prayer to quash the FIR on the basis of compromise by submitting that offence under Section 306

IPC is a heinous crime and quashing on the basis of compromise for such an offence cannot be allowed.

7. In view of the above, it would be apposite to survey the law in respect of compounding in non-compoundable case. In the case of State of M.P. vs. Laxmi Narayan (2019) 5 SCC 688, a Three Judge Bench of the Apex Court discussed the earlier judgments of the Apex Court and laid down the principles in para-15. The relevant para-15.1 & 15.2 are reproduced as under:-

''15.1 That the power conferred under Section 482 of the Code to quash the criminal proceedings for the non- compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves;

15.2. Such power is not to be exercised in those prosecutions which involved 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;"

8 . In order to prosecute a person under Section 306 of the IPC the ingredients of Section 107 of the IPC is to be satisfied, which are reproduced as under:

"107. Abetment of a thing - A person abets the doing of a thing, who - First - Instigates any person to do that thing; or Secondly, - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing or

Thirdly - Intentionally aids, by any act or illegal omission, the doing of that thing.

9. In this regard, the law laid down by Hon'ble Supreme Court in a recent judgment, rendered in Kanchan Sharma v. State of Uttar Pradesh and Another 2021 (4) Crimes 48 (SC), is propitious to produce here:

'Abetment' involves mental process of instigating a person or intentionally aiding a person in doing of a thing. Without positive act on the part of the accused to instigate or aid in committing suicide, no one can be convicted for offence under Section 306, IPC. To proceed against any person for the offence under Section 306 IPC it requires an active act or direct act which led the deceased to commit suicide, seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.

10. On this aspect, I can also profitably rely on another judgment of Supreme Court held in Mahendra K.C. v. State of Karnataka and Another (2022) 2 SCC 129 wherein it is ordained as under:

The essence of abetment lies in instigating a person to do a thing or the intentional doing of that thing by an act or illegal omission.

In other words, in order to prove that the accused abetted commission of suicide by a person, it has to be established that:

( i ) the accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a wilful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction; and

(ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while

acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation.

11. In the case o f Chitresh Kumar Chopra v. State (Govt.of NCT of Delhi) reported as (2009) 16 SCC 605, the Hon'ble Court has observed as under:-

"Where the accused had, by his acts or omission or by a continued course of conduct, creates such circumstances that the deceased was left with no other option except to commit suicide, in which case an "instigation" may have to be inferred."

12. In view of the aforesaid ratio, the factual matrix of this case has been meticulously examined. In this case, Naresh Patel who was neighbour of the deceased took money of Rs.95,00,000/- from the deceased for sale of land at Sawer Kundla in the partnership of Naresh, Neeraj and the present applicant. However, it is alleged that the present applicant took the money and registered the land in his name and also sold the land and misappropriated the amount. Therefore, being aggrieved of this misappropriation, the deceased committed suicide. Subsequent to that an FIR was lodged in which the applicant was implicated for abetting the deceased to commit suicide. No proximity between the acts of applicant and committal of suicide established by prosecution.

13. Virtually the act of instigation and an active role is a necessary ingredient for an offence under Section 306 of IPC. Since, aforesaid both the ingredients have not been evinced, no case under Section 306 of IPC is culled out against the applicant. There is no material on record to show as to how the applicant has abetted the deceased for committing suicide. Prosecution has also not adduced any material by which it can be assumed that the accused had, by his acts or omissions or by a continuous course of conduct formulated such

circumstances that the deceased was left with no other option except to commit suicide. Further more the case in hand may be treated as a civil transaction which can be resolved by compromise.

14. In the case of Gian Singh vs. State of Punjab & Anr. reported as AIR 2012 SC 838 the Full Bench of Hon'ble Apex Court endorsing five judges decision of Punjab and Haryana High Court in Kulwinder Singh and others v. State of Punjab and another reported in (2007) 4 CTC 769 reiterated the following guidelines. In this regard relevant extract is reproduced hereunder:

" A five-Judge Bench of the Punjab and Haryana High Court in Kulwinder Singh and others v. State of Punjab and another [(2007) 4 CTC 769] was called upon to determine, inter alia, the question whether the High Court has the power under Section 482 of the Code to quash the criminal proceedings or allow the compounding of the offences in the cases which have been specified as non-compoundable offences under the provisions of Section 320 of the Code. The five-Judge Bench referred to quite a fe w decisions of this Court including the decisions in Madhu Limaye v. State of Maharashtra [(1977) 4 SCC 551], State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335], State of Karnataka v. L. Muniswamy and Ors. [(1977) 2 SCC 699], Mosst. Simrikhia v. Smt. Dolley Mukerjee alias Smt. Chabbi Mukerjee and Anr [(1990) 2 SCC 437], B.S. Joshi and Ors. v. State of Haryana and Anr. [(2003) 4 SCC 675] and Ram Lal and Anr. v. State of Jammu and Kashmir [(1999 2 SCC 213] and framed the following guidelines:

"a. Cases arising from matrimonial discord, even if other offences are introduced for aggravation of the case.

b. Cases pertaining to property disputes between close relations, which are predominantly civil in nature and they have a genuine or belaboured dimension of criminal liability. Notwithstanding a touch of criminal liability, the settlement would

bring lasting peace and harmony to larger number of people.

c . Ca s e s of dispute between old partners or business concerns with dealings over a long period which are predominantly civil and are given or acquire a criminal dimension but the parties are essentially seeking a redressal of their financial or commercial claim.

d. Minor offences as under Section 279, IPC may be permitted to be compounded on the basis of legitimate settlement between the parties. Yet another offence which remains non- compoundable is Section 506 (II), IPC, which is punishable with 7 years imprisonment. It is the judicial experience that an offence under Section 506 IPC in most cases is based on the oral declaration with different shades of intention. Another set of offences, which ought to be liberally compounded, are Sections 147 and 148, IPC, more particularly where other offences are compoundable. It may be added here that the State of Madhya Pradesh vide M.P. Act No. 17 of 1999 (Section 3) has made Sections 506(II) IPC, 147 IPC and 148, IPC compoundable offences by amending the schedule under Section 320, Cr.P.C. e. The offences against human body other than murder and culpable homicide where the victim dies in the course of transaction would fall in the category where compounding may not be permitted. Heinous offences like highway robbery, dacoity or a case involving clear-cut allegations of rape should also fall in the prohibited category. Offences committed b y Public Servants purporting to act in that capacity as also offences against public servant while the victims are acting in the discharge of their duty must remain non-compoundable. Offences against the State enshrined in Chapter-VII (relating to army, navy and air force) must remain non-compoundable.

f . That as a broad guideline the offences against

human body other than murder and culpable homicide may be permitted to be compounded when the court is in the position to record a finding that the settlement between the parties is voluntary and fair. While parting with this part, it appears necessary to add that the settlement or compromise must satisfy the conscience of the court. The settlement must be just and fair besides being free from the undue pressure, t h e court must examine the cases of weaker and vulnerable victims with necessary caution."

To conclude, it can safely be said that there can never be any hard and fast category which can be prescribed to enable the Court to exercise its power under Section 482 of the Cr.P.C. The only principle that can be laid down is the one which has been incorporated in the Section itself, i.e., "to prevent abuse of the process of any Court" or "to secure the ends of justice".

It was further held as under :

"23. No embargo, be in the shape of Section 320(9) of the Cr.P.C., or any other such curtailment, can whittle down the power under Section 482 of the Cr.P.C. 2 5 . The only inevitable conclusion from the above discussion is that there is no statutory bar under the Cr.P.C. which can affect the inherent power of this Court under Section 482.

Further, the same cannot be limited to matrimonial cases alone and the Court has the wide power to quash the proceedings even in non-compoundable offences notwithstanding the bar under Section 320 of the Cr.P.C., in order to prevent the abuse of law and to secure the ends of justice. The power under Section 482 of the Cr.P.C. is to be exercised ex-debito Justitiae to prevent an abuse of process of Court. There can neither be an exhaustive list nor the defined para-meters to enable a High Court to invoke or exercise its inherent powers. It will always depend upon the facts and circumstances of each case. The power under Section 482 of the Cr.P.C. has no limits. However, the High

Court will exercise it sparingly and with utmost care and caution. The exercise of power has to be with circumspection and restraint. The Court is a vital and an extra-ordinary effective instrument to maintain and control social order. The Courts play role of paramount importance in achieving peace, harmony and ever-lasting congeniality in society. Resolution of a dispute by way of a compromise between two warring groups, therefore, should attract the immediate and prompt attention of a Court which should endeavour to give full effect to the same unless such compromise is abhorrent to lawful composition of the society or would promote savagery."

1 5 . Recently, co-ordinate Bench of this Court vide order dated 05.04.2024 passed in the case of Smt. Poonam W/o. Shri Devashish Choudhary & Ors. vs. State of M.P. & Ors. (M.Cr.C. No.12183/2024) has also considered the effect of compromise in the case related to offence under Section 306 of IPC and after considering the facts and circumstances, relying upon various judgments of the Hon'ble Apex Court, quashed the FIR and the subsequent proceedings in this regard.

16. Counsel for the applicant also refers the judgment passed by High Court of Punbaj and Haryana in the case of Balbir Kumar and Ors. Vs. State of Punjab and Anr dated 29.08.2023 whereby the permission was granted to compound the offences under Section 306/34 of IPC. In para-28 of the judgment in the case of Balbir Kumar (supra) it has been held as under:

"In view of entire evaluation of the facts and legal position as above, this Court finds that as allegations set out in the FIR do not constitute the offence under Section 306 IPC, therefore, the petitioners should not be compelled to undergo the rigmarole and ordeal of trial, particularly when the compromise has been effected between the petitioners and the family members of the deceased and so, quashing of the proceedings would serve the solitary purpose of Section 482

Cr.P.C."

17. In view of the aforesaid observations, the matter has been examined from various corners:

Firstly, in this case the ingredients of the offence punishable under Section 306 of IPC are, prima facie not available.

S econ d ly, the matter has civil flavour and it relates with the misappropriation of money.

Thirdly, owing to change of circumstances there is strong possibility that the prosecution case would not find support from the deceased's family.

Lastly, after amicable settlement between the parties the compromise application has been filed by the LRs of the deceased which has been verified by the Principal Registrar of this Court.

18. In conspectus of cumulative effects of the aforesaid circumstances, further continuance of prosecution proceedings will not be only a futile exercise, but also it would be unfair and contrary to the interest of justice and it would tantamount to abuse the process of law despite settlement of compromise between the parties. Under these circumstances, exercise of inherent powers enshrined under Section 482 of Cr.P.C can be used to prevent the abuse of process of law and to secure the ends of justice.

19. In view of the above, the petition under Section 482 Cr.P.C. is allowed. FIR registered at Crime No.58/2023 at police station Kukdehswar, District Neemuch for commission of offence under Section 306 of the IPC so also the other subsequent proceedings against the petitioners are hereby quashed. The petitioner is acquitted of the charges in view of the aforesaid observations.

20. The petition is allowed and disposed off.

C.c. as per rules.

(PREM NARAYAN SINGH) JUDGE sumathi