Punjab-Haryana High Court
Sakander Singh Alias Sikander ... vs State Of Punjab And Another on 4 July, 2022
259
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CRM-M No. 28519 of 2020
Date of Decision: 04.07.2022
Sakandar Singh alias Sikander Singh
.......... Petitioner
Versus
State of Punjab and another
.......... Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
Present: Ms. Gursharan Kaur Mann, Sr. Advocate, assisted by
Mr. Gursharan Singh, Advocate
for the petitioner.
Mr. Bhupender Beniwal, Assistant Advocate General, Punjab
for respondent No. 1 / State.
Mr. Sunil Kumar, Advocate
for respondent No. 2.
****
SURESHWAR THAKUR, J. (ORAL)
1. Through the instant petition cast under Section 482 Cr.P.C., the
petitioner is seeking quashing of FIR No. 0091 of 23.06.2020 (Annexure P-
1), registered against him at Police Station Verka, District Police
Commissionerate Amritsar (Punjab), constituting therein an offence under
Section 307 of the Indian Penal Code, and, under Section(s) 25 / 27 of the
Arms Act, 1959, and, also of all the subsequent proceedings arising
therefrom, on the basis of compromise (Annexure P-2).
2. When the instant petition came up for hearing on 18.09.2020 /
05.11.2020, this Court made directions upon the Illaqa Magistrate
concerned, to make a report with respect to the genuineness of compromise,
and, also to intimate whether any PO proceedings are pending against any of
the party.
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3. The afore order makes it apparent that the petitioner had
depended, upon, a compromise/settlement, arrived at, in respect of the FIR
(supra) with the complainant-respondent No. 2.
4. The afore made order(s) by this Court on 18.09.2020 /
05.11.2020, has been complied with by the learned Illaqa Magistrate
concerned, and, the elicited report has been placed on record. A perusal of
the report, transmitted to this Court, by the learned Magistrate concerned,
reveals that the settlement / compromise, arrived at inter se the petitioner,
and, respondent No. 2, is a sequel of both, being ad idem qua it, besides the
compromise / settlement being a sequel of no pressure or coercion, being
exercised upon each other. Therefore, the learned Magistrate has reported,
that the settlement / compromise, depended upon by the petitioner, for
seeking quashing of the FIR (supra), is both voluntary, and, genuine.
5. The learned counsel for the parties also stated at the Bar, that
all the concerned have signed the compromise deed.
6. Furthermore, the learned State Counsel, on instructions, meted
to him, by the Investigating Officer (IO) concerned, submits that the challan
has not yet been filed.
7. However, the learned counsel appearing for the State, has
contended before this Court, that the relief, as claimed by the petitioner, in
the petition, cannot be granted, as some of the offence(s) constituted against
the accused-petitioner, inasmuch as the one under Section 307 of the IPC, is
of an extremely grave and heinous genre, and, obviously is non-
compoundable, neither with the leave of the Court, nor, this Court can
proceed, to an anvil of a compromise entered into between the petitioner,
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and, the victim, arrayed as respondent No. 2, rather make an order for
quashing of the FIR, embodying the above offence. He supports the afore
submission on the basis of the Medical Legal Report (MLR) prepared by the
doctor concerned, who proceeded to examine the body of the victim,
whereins, the hereinafter extracted observations are carried.
Sr. No. Injury Details Injury Number
0.2 CM X 0.2 CM PRESENT AT RIGHT
CHEST REGION. CLOTTED BLOOD
PRESENT. DEPTH CAN NOT BE
ASCERTAINED. PAIN AND
TENDERNESS PRESENT.
0.3 CM X 0.3 CM PRESENT AT RIGHT
ABDOMEN REGION. CLOTTED
BLOOD PRESENT. DEPTH CAN NOT
BE ASCERTAINED. PAIN AND
TENDERNESS PRESENT.
0.2 CM X 0.2 CM, 4 IN NUMBER,
PRESENT AT RIGHT FLANK OF
ABDOMEN. CLOTEED BLOOD
PRESENT. DEPTH CAN NOT BE
ASCERTAINED. PAIN AND
TENDERNESS PRESENT.
0.4 CM X 0.4 CM PRESENT AT LOWER
ONE THIRD OF RIGHT ARM.
CLOTTED BLOOD PRESENT. DEPTH
CAN NOT BE ASCERTAINED. PAIN
AND TENDERNESS PRESENT.
0.5 CM X 0.5 CM PRESENT AT RIGHT
FOREARM, 4 IN NUMBER. CLOTTED
BLOOD PRESENT. DEPTH CAN NOT
BE ASCERTAINED. PAIN AND
TENDERNESS PRESENT.
0.1 CM X 0.1 CM PRESENT AT LITTLE
FINGER OF RIGHT HAND. CLOTTED
BLOOD PRESENT. DEPTH CAN NOT
BE ASCERTAINED. PAIN AND
TENDERNESS PRESENT.
0.2 CM X 0.2 CM PRESENT AT MID OF
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Sr. No. Injury Details Injury Number
LEFT FOREARM. CLOTTED BLOOD
PRESENT. DEPTH CAN NOT BE
ASCERTAINED. PAIN AND
TENDERNESS PRESENT.
0.2 CM X 0.2 CM, 7 IN NUMBER
PRESENT AT FIVE IN UPPER AND
TWO IN LOWER RIGHT THIGH
REGION. CLOTTED BLOOD
PRESENT. DEPTH CAN NOT BE
ASCERTAINED. PAIN AND
TENDERNESS PRESENT.
0.5 CM X 0.5 CM PRESENT AT UPPER
RIGHT LEG. CLOTTED BLOOD
PRESENT. DEPTH CAN NOT BE
ASCERTAINED. PAIN AND
TENDERNESS PRESENT.
0.4 CM X 0.4 CM PRESENT AT RIGHT
SIDE OF FACE JUST INFROENT OF
RIGHT PINNA. CLOTTED BLOOD
PRESENT. DEPTH CAN NOT BE
ASCERTAINED. PAIN AND
TENDERNESS PRESENT.
8. Furthermore, the learned State Counsel also refers to the report
of the Ballistic Expert, relevant portion whereof becomes extracted
hereinafter, and, whereins, there is a categorical echoing with respect to the
cartridges as allegedly fired, and, allegedly striking the apposite regions of
the body of the victim, rahter becoming actually fired therefroms.
" RESULT OF EXAMINATION
On the basis of careful scientific examination it has been
concluded that:-
1. One 12 bore DBBL gun (hockey butt) bearing No. 29768-01
marked W/1 contained in parcel 'B' referred above is in
working condition.
2. One 12 bore 'KF' cartridge case marked C/1 contained in
parcel 'A' had been fired through right barrel of 12 bore
DBBL gun bearing No. 29768-01 marked W/1 contained in
parcel 'B' referred above. "
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9. The learned State Counsel consequently argues, that even if the
victim of the offence, arrayed as co-respondent No. 2 in the present
petition, rather during the course of his stepping into the witness box, resiles
from his previously made statement, yet when the Public Prosecutor
concerned, after obtaining the leave of the learned trial Judge concerned,
proceeds to cross-examine him, and, when during course thereof, confronts
him with the report of the Ballistic Expert concerned, thereupon, when the
report of the Ballistic Expert comprises the best Forensic Expert evidence,
therefore, there is every likelihood of its underwhelming the evidentiary
worth, if any, of the victim-injured, hence negating the guilt of the
accused. Therefore, he also argues that there is every likelihood of the
petitioner becoming convicted of the offence constituted under Section 307
of the IPC and, or, that the makings of a trial, upon, the present petitioner
would, not be either futile nor would his being put to trial result in the
causing(s) of humiliation(s) or harassment(s) to him.
10. However, the vigour of the afore made submission becomes
completely negated, in the face of the factum that the settlement /
compromise, which has been entered amongst the petitioner, and,
respondent No. 2, became entered into at the pre-charge stage, also
especially when in respect of acceptance of a compromise arrived at, rather
at the above stage, it has been ex-postulated in paragraph - 12 / 29.7 of the
verdict made by the Hon'ble Apex Court in case case title "State of Madya
Pradesh Vs. Deepak and others", Criminal Appeal No. 1985 of 2014,
decided on 10.09.2014, para(s) whereof becomes extracted hereafter, qua it
comprising a valid parameter to constrain the High Court, to, in a
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compromise based quashing petition, proceed to grant the craved for
indulgence to the accused.
" 12. We would like to mention at this stage that in some cases offences
under Section 307 IPC are allowed to be compounded, whereas in some
other cases it is held to be contrary. This dichotomy was taken note of by
referring to those judgments, in the case of Narinder Singh & Ors. v.
State of Punjab & Anr., (2014) 6 SCC 466, and by reconciling those
judgments, situations and circumstances were discerned where
compounding is to be allowed or refused. To put it simply, it was pointed
out as to under what circumstances the Courts had quashed the
proceedings acting upon the settlement arrived at between the parties on
the one hand and what were the reasons which had persuaded the Court
not to exercise such a discretion. After thorough and detailed discussion
on various facets and after revisiting the entire law on the subject,
following principles have culled out in the said decision:
29 to 29.6 xxxxxx
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
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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."
11. Insofar as the hereinabove made submission by the learned
State Counsel is concerned, and, as made dependent upon the report of the
Forensic Expert concerned, and which he argues to be underwhelming
rather the impact, if any, of the victim-injured, resiling from his previously
recorded statement in writing, this Court is of the view, that the report of the
Forensic Expert, may not also embody any incriminatory evidence of the
gravest sanctity, rather against the petitioner, as thereins, the relevant
incriminatory factum appertaining to the timings of firing(s) taking place
from the seized weapon, is completely amiss, nor obviously any firings
therefroms can become relatable to the time of happening of the occurrence
rather at the crime site. Therefore, it cannot negate the effect of the victim-
injured, upon, his stepping into the witness box, rather proceeding to not his
examination-in-chief, hence corroborate the narration carried his previously made
statement in writing, before the IO concerned. Therefore, also in the face of
the compromise, when there is every likelihood of the complainant - injured
resiling from his previously made statement in writing, thereupon, when
there is also every likelihood of the present petitioner, rather receiving a
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verdict of acquittal from the learned trial Judge concerned. Furthermore,
when but as a necessary corollary, the putting of the accused to trial, would
result in subjecting him to the trauma of unnecessary harassment, and,
humiliation. Consequently, this Court finds merit in the present petition.
12. Moreover, also for the reason(s) to be assigned hereinafter,
rather the afore prayer, as made by the learned State counsel, cannot be
accepted by this Court. The pre-eminent reason for dispelling the vigour of
afore made argument, is rested, upon the factum of also a statement, being
made before this Court, by the learned counsel for the petitioner, that the
challan has not yet been filed.
13. The effect of the afore statement, as made with extreme
vehemence by the learned counsel for the petitioner, and, also the effect of
the statement made by the learned counsel appearing for the State, is that,
the relevant parameters as encapsulated in a verdict of the Hon'ble Apex
Court, rendered in case titled as, Gian Singh versus State of Punjab and
another 2012(4) RCR (Criminal) 543, inasmuch as a postulate/occurring
therein, that the inherent power under Section 482 Cr.P.C., as vested in the
High Court, for quashing of criminal proceedings, as/of FIR or complaint,
through recourse being made to the provisions of Section 482 Cr.P.C., rather
being distinct and different from the power given to a criminal Court, hence
for compounding the relevant offence, hence being enjoined to become
tested viz-a-viz the facts in hand, for apposite application thereon. However,
it has also been held therein, the afore power vested in the High Court, is of
the widest plenitude, with no statutory limitation, being placed thereon, yet
it has to be exercised to secure the ends of justice, and, to prevent the abuse
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of process of any Court. Though no straightjacket formula, has been
contemplated therein, for recourse being made to the mandate of Section
482 Cr.P.C., hence for quashing of an FIR, or criminal proceedings or
complaint, yet the essential rubric viz-a-viz its valid exercising, is comprised
in the principle, that if the accused and the complainant rather enter into a
valid ad idem settlement, and, when thereupon the conviction of the accused
becomes remote and bleak. Consequently, it has been mandated, that unless
the offence sought to be quashed, through the exercising of the power
vested under Section 482 Cr.P.C., are not serious and heinous, inasmuch as
the afore, do not embody offences appertaining to murder, rape, dacoity etc.,
and, or when the offences are in relation to special statutes like Prevention
of Corruption Act or offences committed by public servants, while working
in that capacity, thereupon it can be permissibly exercised. However, upon
evident existences of embargos (supra), spelt in the verdict (supra),
thereupon, the High Courts are barred, through recoursing the mandate of
Section 482 Cr.P.C., hence, to quash the FIR or quash the criminal
proceedings appertaining to serious/heinous offences (supra).
14. It is apt to extract the relevant paragraph of the verdict made by
the Hon'ble Apex Court in Gian Singh's case (supra).
" 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
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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 predominatingly 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."
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15. Furthermore, an immense support to the afore made view, is
also derived from the judgment rendered by the Punjab and Haryana High
Court in case titled as Vinod @ Boda and others versus State of Haryana
and another 2017(1) R.C.R. (Criminal) 571, wherein also, the above view
has been reiterated.
16. Bearing in mind the hereinabove extracted paragraphs, and also
bearing in mind the report, as made to this Court, by the learned JMIC,
Amritsar, inasmuch as it revealing, that the accused, and, respondent No. 2
hence entering into a valid ad idem compromise, and also it being a sequel
of no pressure or coercion, being exercised upon each other. Therefore, this
Court deems it fit, to, after bearing all in mind the relevant parameters,
enshrined in the relevant paragraphs carried in verdict (supra), to accept the
settlement arrived at inter se the accused, and the complainant, dehors, the
fact that may be some of the charged offences, are non-compoundable.
17. Moreover, since the alleged commission of an offence
constituted under Section 307 of the IPC, does not, in the face of the above
discussion rather prima facie appear to be so grave, and, nor is so heinous,
so as to attract the rigour of the embargo (supra) foisted upon the High
Court in verdict (supra). Conspicuously, also when the settlement has
occurred, at the pre-charge stage, thereupon, for preserving amity, and,
harmony amongst the concerned, besides when given the occurrence of a
compromise at the pre-trial stage, rather the victim-complainant, or/and, the
ocular witnesses to the occurrence are not likely to support the charge. In
consequence the irrevering of the compromise, and, putting the accused to
trial, would result in subjecting him to the trauma of unnecessary
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harassment, and, humiliation. Therefore, the settlement/compromise, as
validly entered into, enjoins its being revered. Consequently, even if the
afore offence is non-compoundable, this Court does not deem it fit to accept
the contention(s) of the learned State counsel, that this Court, may not
through recoursing the mandate of Section 482 Cr.P.C., quash the FIR,
especially when the case is still under investigation. In aftermath, when
reiteratedly rather thereupons, the chances of the petitioner being convicted
are remote as well as bleak. In sequel, the ordering for the trial of the
accused, would result in harassment and humiliation, being caused to the
accused, besides would defeat the ends of justice.
18. There is merit in the petition, and, the same is allowed.
Consequently, after accepting the report of the learned Magistrate concerned,
this Court proceeds to quash the FIR (supra).
19. Accordingly, the FIR (supra), and, also all the consequential
proceedings, hence arising therefrom, are quashed qua the petitioner.
July 04, 2022 ( SURESHWAR THAKUR )
'dk kamra' JUDGE
Whether Speaking/reasoned Yes
Whether Reportable Yes
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