Sikkim High Court
Mr. Rinchen Tamang And Ors vs State Of Sikkim on 23 February, 2022
Bench: Bhaskar Raj Pradhan
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Crl. M.C. No. 07 of 2021
Rinchen Tamang & Ors. Vs. State of Sikkim
THE HIGH COURT OF SIKKIM: GANGTOK
(Criminal Jurisdiction)
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SINGLE BENCH: HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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Crl. M.C. No. 07 of 2021
1. Mr. Rinchen Tamang,
S/o Shri M. B. Tamang,
R/o Majitar, Rangpo,
East Sikkim.
2. Mr. Naseeb Tamang,
S/o Shri M.S. Tamang,
R/o Nimtar, 32 No.,
East Sikkim.
3. Mr. Sandeep Biswakarma,
S/o Shri Man Bahadur Biswakarma,
R/o Tadong, East Sikkim.
4. Mr. Sandesh Rai,
S/o J. B. Rai,
R/o Lall Bazar, Gangtok,
East Sikkim.
5. Mr. Sushil Tamang,
S/o Shri Dawa Tamang,
R/o Lingding,
East Sikkim.
6. Mr. Ram Tamang,
S/o Shri Tempa Tamang,
R/o Lall Bazaar, Gangtok,
East Sikkim.
7. Mr. Bhupen Rai,
S/o Shri Man Bahadur Rai,
R/o Lumsey, East Sikkim.
8. Mr. Karma Tashi Bhutia,
S/o Late Tshering Pintso Bhutia,
R/o Lingding, East Sikkim.
9. Mr. Sonam Dorjee Bhutia,
S/o Shri Thamtu Bhutia,
R/o Upper Syari, Gangtok,
East Sikkim.
10. Mr. Sangay Yusur Bhutia,
S/o Late Tshering Topgay Bhutia,
R/o Dicheling, East Sikkim.
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Rinchen Tamang & Ors. Vs. State of Sikkim
11. Mr. Karma Mingyur Bhutia,
S/o Late Tshering Topgay Bhutia,
R/o Dicheling, East Sikkim.
12. Mr. Jigmee Tseten Bhutia,
S/o Shri Tashi Chopel Bhutia,
R/o Dicheling, East Sikkim. ..... Petitioners
Versus
State of Sikkim .... Respondent
Application under section 482 of the Code of Criminal
Procedure, 1973.
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Appearance:
Ms. Rachhitta Rai, Advocate for the Petitioners.
Mr. Yadev Sharma, Additional Public Prosecutor and Mr.
Sujan Sunwar, Assistant Public Prosecutor for the State-
Respondent.
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Date of hearing : 17.02.2022 & 21.02.2022
Date of Order : 23.02.2022
ORDER
Bhaskar Raj Pradhan, J.
1. This petition under section 482 of the Code of
Criminal Procedure, 1973 (Cr.P.C.) has been filed by 12
petitioners seeking the annulment of First Information
Report (FIR) No. 237/2018 dated 09.12.2018 registered
under section 341, 147, 149, 324, 326 of the Indian Penal
Code, 1860 (IPC) against the petitioner nos. 2, 4, 5 and
other unknown accused persons on a complaint by
petitioner nos. 8 to 12 (jointly referred to for convenience as
the complainants). It was alleged that on 09.12.2018 at
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Rinchen Tamang & Ors. Vs. State of Sikkim
around 2 A.M. in the morning while returning home from
"After Dark" located at hospital dara Gangtok they were
brutally attacked by more than 10 people with stones and
bottles at zero point Gangtok due to which they suffered
bruises all over the face and body and stitches in the head.
The FIR led to the filing of the charge-sheet against the
petitioner nos.1, 2, 3, 4, 5, 6, 7, Pravesh Lamichaney and
Sanjay Biswakarma. On 16.10.2019 the learned Chief
Judicial Magistrate recorded that the charge-sheet did not
have any material against Pravesh Lamichaney and Sanjay
Biswakarma and accordingly discharged them. The learned
Chief Judicial Magistrate however, found prima facie
materials against the petitioner nos.1, 2, 3, 4, 5, 6 and 7
(jointly referred to for convenience as the accused persons).
He accordingly framed charges under section 142, 143, 324
and 326 read with 149 IPC. When the accused persons
pleaded not guilty the trial commenced and till date 12
witnesses have deposed. During the trial it transpires that
the petitioners entered upon a deed of compromise dated
23.03.2021. The compromise deed records that due to the
intervention of family, friends and relatives they have
settled their disputes amicably and the complainants do
not desire to pursue the matter further against the accused
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Rinchen Tamang & Ors. Vs. State of Sikkim
persons. The petitioners also agree to live peacefully in the
future.
2. Section 143, 324 and 326 read with 149 IPC are all
non-compoundable offences.
3. Ms. Rachhitta Rai, learned counsel for the petitioners
relied upon the judgment of the Supreme Court in Narinder
Singh vs. State of Punjab1; State of Madhya Pradesh vs. Laxmi
Narayan2 and Satish Sharma vs. State (NCT of Delhi)3 and
submitted that in view of the compromise entered between
the complainants and the accused persons the FIR and the
pending criminal proceedings may be quashed in exercise
of this court's inherent power under section 482 Cr.P.C. It
was submitted that the accused persons are young people
who have just started out with their lives. They are either
employed in the Government, private enterprise or are
doing their own business to make a living. None of them
are habitual offenders and this is the first incident in which
they have been alleged to have committed any offence. The
accused person deeply regret the incident and if this court
would allow the bona fide compromise to bury their
differences with the complainants they would never involve
themselves in any activity which would bring disrepute.
(2014) 6 SCC 466
(2019) 5 SCC 688
(2020) 15 SCC 344
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4. Mr. Yadev Sharma, learned Additional Public
Prosecutor submits that looking at the totality of the
alleged offences in the manner in which it was committed
the State has no objection if the complainant and the
accused person resolved their dispute amicably.
5. In Gian Singh vs. State of Punjab4 the Supreme Court
summarized the position with regard to the power of the
High Court in quashing the criminal proceedings in
exercise of inherent jurisdiction thus:
"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
(2012) 10 SCC 303
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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."
6. In Narinder Singh (supra) the Supreme Court laid down
the following principles:
"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.
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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
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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."
7. In Yogendra Yadav vs. State of Jharkhand5 the Supreme
Court held:
"4. Now, the question before this Court is
whether this Court can compound the offences
under Sections 326 and 307 IPC which are non-
compoundable? Needless to say that offences which
are non-compoundable cannot be compounded by
the court. Courts draw the power of compounding
offences from Section 320 of the Code. The said
provision has to be strictly followed (Gian
Singh v. State of Punjab [Gian Singh v. State of
(2014) 9 SCC 653
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Rinchen Tamang & Ors. Vs. State of Sikkim
Punjab, (2012) 10 SCC 303 : (2012) 4 SCC (Civ)
1188 : (2013) 1 SCC (Cri) 160 : (2012) 2 SCC (L&S)
988] ). However, in a given case, the High Court can
quash a criminal proceeding in exercise of its power
under Section 482 of the Code having regard to the
fact that the parties have amicably settled their
disputes and the victim has no objection, even
though the offences are non-compoundable. In
which cases the High Court can exercise its
discretion to quash the proceedings will depend on
facts and circumstances of each case. Offences
which involve moral turpitude, grave offences like
rape, murder, etc. cannot be effaced by quashing
the proceedings because that will have harmful
effect on the society. Such offences cannot be said to
be restricted to two individuals or two groups. If
such offences are quashed, it may send wrong
signal to the society. However, when the High Court
is convinced that the offences are entirely personal
in nature and, therefore, do not affect public peace
or tranquillity and where it feels that quashing of
such proceedings on account of compromise would
bring about peace and would secure ends of justice,
it should not hesitate to quash them. In such cases,
the prosecution becomes a lame prosecution.
Pursuing such a lame prosecution would be waste
of time and energy. That will also unsettle the
compromise and obstruct restoration of peace.
5. 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] this Court has observed that: (SCC p. 340,
para 58)
"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."
Needless to say that the above observations are
applicable to this Court also.
6. The learned counsel for the parties have
requested this Court that the impugned order
[Yogendra Yadav v. State of Jharkhand, Criminal
MP No. 1915 of 2011, order dated 4-7-2012 (Jhar)]
be set aside as the High Court has not noticed the
correct position in law in regard to quashing of
criminal proceedings when there is a compromise.
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Affidavit has been filed in this Court by complainant
Anil Mandal, who is Respondent 2 herein. In the
affidavit he has stated that a compromise petition
has been filed in the lower court. It is further stated
that he and the appellants are neighbours, that
there is harmonious relationship between the two
sides and that they are living peacefully. He has
further stated that he does not want to contest the
present appeal and he has no grievance against the
appellants. The learned counsel for the parties have
confirmed that the disputes between the parties are
settled; that parties are abiding by the compromise
deed and living peacefully. They have urged that in
the circumstances pending proceedings be quashed.
The State of Jharkhand has further filed an affidavit
opposing the compromise. The affidavit does not
persuade us to reject the prayer made by the
appellant and the second respondent for quashing
of the proceedings."
8. In Laxmi Narayan (supra) the Supreme Court
considered all its previous judgments on the point and held
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;
15.3. Similarly, such power is not to be
exercised for the offences under the special statutes
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;
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
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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 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;
15.5. While exercising the power under
Section 482 of the Code to quash the criminal
proceedings in respect of non-compoundable
offences, which are private in nature and do not
have a serious impact on society, on the ground that
there is a settlement/compromise between the
victim and the offender, the High Court is required to
consider the antecedents of the accused; the
conduct of the accused, namely, whether the
accused was absconding and why he was
absconding, how he had managed with the
complainant to enter into a compromise, etc."
9. In Ramgopal vs. State of Madhya Pradesh6 the Supreme
Court dealt with a case in which the accused had been
convicted for various offences under section 294, 323 and
2021 SCC OnLine SC 834
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326 read with section 34 IPC. The appellant No.1 therein
was alleged to have struck the complainant with a pharsa,
which resultantly cut off the little finger of his left hand.
During the pendency of the appeal a compromise had been
entered between the parties. The Supreme Court held:
"11. True it is that offences which are „non-
compoundable‟ cannot be compounded by a criminal
court in purported exercise of its powers under
Section 320 Cr.P.C. Any such attempt by the court
would amount to alteration, addition and
modification of Section 320 Cr.P.C, which is the
exclusive domain of Legislature. There is no patent
or latent ambiguity in the language of Section 320
Cr.P.C., which may justify its wider interpretation
and include such offences in the docket of
„compoundable‟ offences which have been
consciously kept out as non-compoundable.
Nevertheless, the limited jurisdiction to compound
an offence within the framework of Section 320
Cr.P.C. is not an embargo against invoking inherent
powers by the High Court vested in it under Section
482 Cr.P.C. The High Court, keeping in view the
peculiar facts and circumstances of a case and for
justifiable reasons can press Section 482 Cr.P.C. in
aid to prevent abuse of the process of any Court
and/or to secure the ends of justice.
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 non-compoundable.
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.
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
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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 Punjab3 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."
10. The law regarding the power of the High Court in
quashing FIRs on settlement arrived at between the parties
under section 482 of the Cr.P.C. is therefore, well settled by
the above decisions of the Supreme Court.
11. The offences alleged to have been committed by the
accused persons are all non-compoundable offences but
none a heinous offence. The evidence so far indicates that
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the injuries caused on the complainants were simple
injuries except in the case of one whose little finger was
fractured due to the alleged assault. There is nothing to
indicate that the compromise deed entered between the
complainant and the accused persons was compromised.
The accused persons, as the records indicate, are first time
offenders in a case yet to be determined. The State-
respondent has not brought any record to indicate
otherwise. The records so far reveal that the initial verbal
spat was between one of the complainants and one of the
accused persons who were known to each other from
before. What transpired thereafter seems to be the fall out
of the unresolved differences between the two of them
which ultimately dragged other friends now grouped
together and taking sides. The manner in which the
accused persons sought to resolve their dispute with the
complainants is wanting and unbecoming of good citizens.
Youth however, has its ebbs and floods. The present case
seems to be a compounding of a private dispute. It seems it
was purely personal or having overtones of criminal
proceedings of private nature. The nature of injury
sustained does not exhibit mental depravity the quashing
of which would override public interest as cautioned by the
Supreme Court. The complainants as well as the accused
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persons on their own volition have buried their differences
and wish to accord a quietus to their disputes. The
quashing of the criminal proceedings may advance peace,
harmony, and fellowship amongst them. In the totality of
the facts and circumstances of the case, keeping in mind
that handing out punishment is not the sole form of
delivering justice and societal method of applying laws
evenly is always subject to lawful exceptions, this court is
of the considered view that discretion would be better
exercise in allowing the compromise to bury the difference
between them. This would allow the accused persons and
the complainants to get on with their lives as good citizens.
12. Following the ratio of the judgments of the Supreme
Court discussed above the FIR No. 237/2018 dated
09.12.2018 as well as G.R. Case No. 174 of 2019 are
hereby quashed.
( Bhaskar Raj Pradhan )
Judge
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