Sikkim High Court
Pem Lhamu Lepcha vs State Of Sikkim on 29 August, 2022
Bench: Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Jurisdiction)
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SINGLE BENCH: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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Crl. M. C. No. 06 of 2022
1. Pem Lhamu Lepcha,
W/o Late Hem Bahadur Rai,
R/o Singtam,
A/p Forest Colony, Govt. Quarter,
Baluwakhani, Gangtok.
2. Amiran Chettri @ Amir,
S/o Late Kamal Chettri,
R/o Forest Colony,
Gangtok. ..... Petitioners
Versus
State of Sikkim.
.....Respondent
Application under Section 482 of the Code of Criminal
Procedure, 1961.
(For quashing the FIR bearing No.139/2020 dated 10.09.2020 and the
proceedings of G.R. Case No.91/2021 State of Sikkim vs. Amiran Chettri @ Amir
which is pending before the Court of the Ld. Chief Judicial Magistrate, East Sikkim
at Gangtok).
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Appearance:
Mr. Sajal Sharma, Ms. Roshni Chettri, Ms. Puja
Kumari Singh Advocates for the Petitioners.
Mr. Thinlay Dorjee Bhutia, Mr. Yadev Sharma,
Additional Public Prosecutors and Mr. Sujan Sunwar,
Assistant Public Prosecutor for the State-respondents.
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Date of hearing : 25.08.2022
Date of Judgment : 29.08.2022
JUDGMENT
Bhaskar Raj Pradhan, J.
1. The petitioner no.1 who is the complainant and the
petitioner no.2 who is the accused person facing trial in
G.R. Case No.91 of 2021 has approached this court after
Crl. M. C. No.06 of 2022
Pem Lhamu Lpecha & Anr. vs. State of Sikkim
entering into a compromise agreement dated 26.04.2022 to
quash the proceedings pending before the Court of the
learned Chief Judicial Magistrate, East Sikkim at Gangtok.
Evidently, the petitioner no.2 is charged with the offences
of having committed theft in a dwelling house under
Section 380 IPC and for lurking house-trespass or house-
breaking by night in order to commit offence with
imprisonment under Section 457 IPC. It is alleged that he
had committed theft of a bag which contained, inter alia, an
amount of Rs.50,000/- from the petitioner no.1's house at
Government quarter, forest colony, Gangtok. Admittedly,
out of 6 prosecution witnesses four have been examined.
2. Heard Mr. Sajal Sharma, learned counsel for the
petitioners who sought to rely upon the judgment of the
Supreme Court in Gian Singh vs. State of Punjab & Anr.1;
Yogendra Yadav vs. State of Jharkhand2 and Ramgopal vs.
State of Madhya Pradesh3. It is argued that since there is a
compromise between the petitioners and the petitioner
complainant has willingly desired to forgive the accused-
petitioner, it should be accepted and they be allowed to
bury their differences.
1 (2012) 10 SCC 303
2 (2014) 9 SCC 653
3 (2021) SCC OnLine SC 834
Crl. M. C. No.06 of 2022
Pem Lhamu Lpecha & Anr. vs. State of Sikkim
3. In Gian Singh (supra) the Supreme Court held :
"58. Where the High Court quashes a criminal
proceeding having regard to the fact that the dispute
between the offender and the victim has been settled
although the offences are not compoundable, it does
so as in its opinion, continuation of criminal
proceedings will be an exercise in futility and justice
in the case demands that the dispute between the
parties is put to an end and peace is restored;
securing the ends of justice being the ultimate guiding
factor. No doubt, crimes are acts which have harmful
effect on the public and consist in wrongdoing that
seriously endangers and threatens the well-being of
the society and it is not safe to leave the crime-doer
only because he and the victim have settled the
dispute amicably or that the victim has been paid
compensation, yet certain crimes have been made
compoundable in law, with or without the permission
of the court. In respect of serious offences like murder,
rape, dacoity, etc., or other offences of mental
depravity under IPC or offences of moral turpitude
under special statutes, like the Prevention of
Corruption Act or the offences committed by public
servants while working in that capacity, the
settlement between the offender and the victim can
have no legal sanction at all. However, certain
offences which overwhelmingly and predominantly
bear civil flavour having arisen out of civil, mercantile,
commercial, financial, partnership or such like
transactions or the offences arising out of matrimony,
particularly relating to dowry, etc. or the family
dispute, where the wrong is basically to the victim
and the offender and the victim have settled all
disputes between them amicably, irrespective of the
fact that such offences have not been made
compoundable, the High Court may within the
framework of its inherent power, quash the criminal
proceeding or criminal complaint or FIR if it is
satisfied that on the face of such settlement, there is
hardly any likelihood of the offender being convicted
and by not quashing the criminal proceedings, justice
shall be casualty and ends of justice shall be
defeated. The above list is illustrative and not
exhaustive. Each case will depend on its own facts
and no hard-and-fast category can be prescribed."
"61. The position that emerges from the
above discussion can be summarised thus : the
Crl. M. C. No.06 of 2022
Pem Lhamu Lpecha & Anr. vs. State of Sikkim
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
Crl. M. C. No.06 of 2022
Pem Lhamu Lpecha & Anr. vs. State of Sikkim
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."
4. In Yogendra Yadav (supra) the Supreme Court referring
to its earlier judgment in Gian Singh (supra) held that the
observation made in paragraph 58 therein would also be
applicable in the facts of the case and quashed the criminal
proceedings against two set of accused persons who had
filed First Information Reports (FIR) against each other on
the basis of the compromise they entered while the cases
were going on before the Second Additional Judge. While
doing so the Supreme Court took into consideration the
compromise between the parties who were found to be
neighbours and desired to continue the harmonious
relationship pursuant to the compromise. In the first case
the FIR was registered under Sections 341, 323, 324, 504
and 307 read with 34 IPC and in the other the FIR was
registered under Sections 147, 148, 149, 448, 341, 323
and 380 IPC.
5. In Ramgopal (supra) the Supreme Court examined two
criminal appeals pertaining to two different and distinct
occurrences. In the first case the accused persons were
Crl. M. C. No.06 of 2022
Pem Lhamu Lpecha & Anr. vs. State of Sikkim
convicted under Sections 294, 323 and 326 read with 34 of
the Indian Penal Code, 1860 (IPC). The matter reached the
High Court where they sought the compounding of the
offences which was not accepted. Ultimately the Supreme
Court was approached seeking compounding of their actus
reus under Section 326 IPC in view of the settlement
between the parties. In the other case the accused persons
were tried and convicted under Sections 143, 144, 147,
148, 342, 324 and 326 read with Sections 149 IPC.
Although the parties entered upon a compromise, it was
placed only before the Supreme Court with the prayer to
compound the offences. In both the appeals the appellants
sought to invoke the Supreme Court's power under Article
142 of the Constitution of India to do complete justice to
them. While doing so the Supreme Court examined the
High Court's power under Section 482 of the Code of
Criminal Procedure, 1973 (Cr.P.C.) and held:-
"12. The High Court, therefore, having regard to
the nature of the offence and the fact that parties have
amicably settled their dispute and the victim has
willingly consented to the nullification of criminal
proceedings, can quash such proceedings in exercise of
its inherent powers under Section 482 Cr.P.C., even if
the offences are noncompoundable. The High Court can
indubitably evaluate the consequential effects of the
offence beyond the body of an individual and thereafter
adopt a pragmatic approach, to ensure that the felony,
even if goes unpunished, does not tinker with or
paralyze the very object of the administration of criminal
justice system.
Crl. M. C. No.06 of 2022
Pem Lhamu Lpecha & Anr. vs. State of Sikkim
13. It appears to us that criminal proceedings
involving non-heinous offences or where the offences are
pre-dominantly of a private nature, can be annulled
irrespective of the fact that trial has already been
concluded or appeal stands dismissed against
conviction. Handing out punishment is not the sole form
of delivering justice. Societal method of applying laws
evenly is always subject to lawful exceptions. It goes
without saying, that the cases where compromise is
struck post-conviction, the High Court ought to exercise
such discretion with rectitude, keeping in view the
circumstances surrounding the incident, the fashion in
which the compromise has been arrived at, and with
due regard to the nature and seriousness of the offence,
besides the conduct of the accused, before and after the
incidence. The touchstone for exercising the extra-
ordinary power under Section 482 Cr.P.C. would be to
secure the ends of justice. There can be no hard and
fast line constricting the power of the High Court to do
substantial justice. A restrictive construction of inherent
powers under Section 482 Cr.P.C. may lead to rigid or
specious justice, which in the given facts and
circumstances of a case, may rather lead to grave
injustice. On the other hand, in cases where heinous
offences have been proved against perpetrators, no such
benefit ought to be extended, as cautiously observed by
this Court in Narinder Singh v. State of
Punjab and Laxmi Narayan (Supra).
14. In other words, grave or serious offences or
offences which involve moral turpitude or have a
harmful effect on the social and moral fabric of the
society or involve matters concerning public policy,
cannot be construed betwixt two individuals or groups
only, for such offences have the potential to impact the
society at large. Effacing abominable offences through
quashing process would not only send a wrong signal to
the community but may also accord an undue benefit to
unscrupulous habitual or professional offenders, who
can secure a 'settlement' through duress, threats, social
boycotts, bribes or other dubious means. It is well said
that "let no guilty man escape, if it can be avoided."
"19. We thus sum-up and hold that as
opposed to Section 320 Cr.P.C. where the Court is
squarely guided by the compromise between the parties
in respect of offences 'compoundable' within the
statutory framework, the extra-ordinary power enjoined
upon a High Court under Section 482 Cr.P.C. or vested
in this Court under Article 142 of the Constitution, can
be invoked beyond the metes and bounds of Section 320
Crl. M. C. No.06 of 2022
Pem Lhamu Lpecha & Anr. vs. State of Sikkim
Cr.P.C. Nonetheless, we reiterate that such powers of
wide amplitude ought to be exercised carefully in the
context of quashing criminal proceedings, bearing in
mind : (i) Nature and effect of the offence on the
conscious of the society; (ii) Seriousness of the injury, if
any; (iii) Voluntary nature of compromise between the
accused and the victim; & (iv) Conduct of the accused
persons, prior to and after the occurrence of the
purported offence and/or other relevant
considerations."
6. The learned Additional Public Prosecutor on the other
hand vehemently object to the quashing of the present
proceedings on the ground that the trial has reached the
final stages and the material witnesses have already been
examined. In fact the State-respondents have filed their
written objection to the quashing of the criminal
proceeding. The objection is to the fact that the
compromise has been entered after the completion of the
deposition of the prosecution witnesses' nos. 1 to 4 and
which evidence is not very promising to the accused-
petitioner. As such it is an attempt to circumvent the
course of criminal administration of justice. He also relied
upon paragraph 29.7 of the judgment of the Supreme
Court in Narinder Singh vs. State of Punjab4 which holds:
"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
4 (2014) 6 SCC 466
Crl. M. C. No.06 of 2022
Pem Lhamu Lpecha & Anr. vs. State of Sikkim
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".
7. The learned Additional Public Prosecutor fairly
submitted that the judgment of the Supreme Court in
Narinder Singh (supra) has been examined by a three Judge
Bench of the Supreme Court in State of Madhya Pradesh. vs
Laxmi Narayan5 and in paragraph 15.4 it was explained as
under:-
"15.4. Offences under Section 307 IPC and the
Arms Act, etc. would fall in the category of heinous and
serious offences and therefore are to be treated as crime
against the society and not against the individual alone,
and therefore, the criminal proceedings for the offence
under Section 307 IPC and/or the Arms Act, etc. which
have a serious impact on the society cannot be quashed
in exercise of powers under Section 482 of the Code, on
the ground that the parties have resolved their entire
dispute amongst themselves. 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
5 (2019) 5 SCC 688
Crl. M. C. No.06 of 2022
Pem Lhamu Lpecha & Anr. vs. State of Sikkim
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 framing 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. However, such an
exercise by the High Court would be permissible only
after the evidence is collected after investigation and the
charge-sheet is filed/charge is framed and/or during
the trial. Such exercise is not permissible when the
matter is still under investigation. Therefore, the
ultimate conclusion in paras 29.6 and 29.7 of the
decision of this Court in Narinder Singh [Narinder
Singh v. State of Punjab, (2014) 6 SCC 466 : (2014) 3
SCC (Cri) 54] should be read harmoniously and to be
read as a whole and in the circumstances stated
hereinabove;"
8. Keeping in mind the pronouncements of the Supreme
Court as quoted above it is important for this court to
consider the nature and gravity of the alleged offences. The
charge under Section 380 IPC involves imprisonment for a
term which may extend to seven years and fine. The
allegation is commission of offence of theft in a dwelling
house of the complainant-petitioner no.1 of a ladies
handbag which contained inter alia an amount of
Rs.50,000/-. The second offence alleged is lurking house
trespass of house breaking at night to commit theft. The
evidence of the complainant-petitioner is that the accused-
petitioner was seen by her grabbing her sister's bag that
was kept at the window sill from outside the house. The
punishment prescribed under Section 457 IPC for five years
and fine and if the offence intended to be committed is
theft, the term may be extended to 14 years.
Crl. M. C. No.06 of 2022
Pem Lhamu Lpecha & Anr. vs. State of Sikkim
9. It is seen that both the offences under Section 380
and 457 IPC are not heinous offences of mental depravity
or offences like murder, rape, dacoity, etc.. It is also noted
that they are not offences under any special statute like the
Prevention of Corruption Act or the offences committed by
public servants while working in that capacity.
10. The charge under Section 380 IPC framed by the
learned Chief Judicial Magistrate alleges that the accused-
petitioner committed theft of one ladies handbag along with
its contents which also contained cash amounting to
Rs.50,000/- from the complainant-petitioner's house,
which was used as a human dwelling. The charge under
Section 457 IPC alleges that the accused-petitioner
committed lurking house trespass by night by entering into
the house of the complainant-petitioner in order to commit
theft. The deposition of the complainant-petitioner however,
clarifies that she had kept her wallet inside her sister's bag
which was kept by her at the window sill. It is deposed that
the complainant-petitioner saw the curtain of the window
move and the accused-petitioner grabbing her sister's bag
that was kept at the window sill after which they went
outside looking for him but could not find him. The
complainant-petitioner's sister was also examined who
deposed that she also saw the accused-petitioner taking
Crl. M. C. No.06 of 2022
Pem Lhamu Lpecha & Anr. vs. State of Sikkim
her bag from outside. Section 442 IPC provides that
whoever commits criminal trespass by entering into or
remaining in any building is said to commit house
trespass. The evidence suggests that the accused-petitioner
had not physically entered the building but stolen the bag
lying in the window sill from outside. It cannot thus be said
that he committed lurking house trespass or house
breaking by night to commit theft. In such view of the
matter with the evidence on record it may not be possible
to record a conviction under Section 457 as contemplated
therein.
11. The depositions of the prosecution witnesses also
reflect that the complainant-petitioner knew the accused-
petitioner and that they were neighbours. It is also noted
that the complainant-petitioner desires to forgive the
accused-petitioner for the alleged act. The complainant-
petitioner who personally appeared on 23.08.2022 was
asked to reflect on the compromise deed and informed this
court on the next date. On 25.08.2022 the complainant-
petitioner appeared in person and stated that she has
reflected on the compromise deed and would want to
forgive the accused-petitioner. It is seen that the alleged
offence is not a heinous offence and the desire of the
complainant-petitioner is genuine, actuated by the fact that
Crl. M. C. No.06 of 2022
Pem Lhamu Lpecha & Anr. vs. State of Sikkim
the accused-petitioner has recently married and has a
decent job to start his life afresh. The accused-petitioner
assured this court that he will henceforth lead a
respectable life and not indulge in any illegal or criminal
activities. Although, there is no way to gauge the
correctness of the assurance, keeping in mind his age and
the circumstances he is in this court is of the view that the
consequential effect of permitting the compromise and the
felony remaining unpunished, would not tinker with or
paralyse the very object of the administration of criminal
justice system. In Ramgopal (supra) the Supreme Court has
clearly laid down those criminal proceedings involving none
heinous offences can be annulled irrespective of the fact
that the trial has already been concluded or appeal stands
dismissed against conviction. The criminal proceeding in
G.R. Case No. 91 of 2021 (State of Sikkim vs. Amiran Chettri
@ Amir) and FIR bearing No. 139/2020 dated 10.09.2020
are also hereby quashed duly taking on record the
compromise deed dated 26.04.2022.
12. The petition under Section 482 Cr.P.C filed by the
petitioners is hereby allowed.
( Bhaskar Raj Pradhan )
Judge
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