Deshraj Saini And Another ... ... vs State Of Uttarakhand And Others
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     HIGH COURT OF UTTARAKHAND
            AT NAINITAL

 Criminal Misc. Application No. 724 of 2020
                      (Under Section 482 of Cr.P.C.)

Deshraj Saini and Another                                 ...   Applicants
                           Vs.
State of Uttarakhand and Others                           ... Respondents


Advocate:     Mr. Parikshit Saini, Advocate, for the applicants
              Mr. Tumul Nainwal and Ms. Lata Negi, Brief Holder, for the
              State
              Mr. Mohd. Safdar, Advocate, for the respondents


Hon'ble Sharad Kumar Sharma, J.

With an evolution of humanity, the law applicable governing a human conduct affecting the basic human social fabric, has had to be regulated by the constitutional Courts, which are exercising their inherent powers. A uniform or a common yardstick cannot always be conducive to be adopted invariably without considering the distinction of circumstances with regards to the parameters laid down by the Hon'ble Apex Court and even by this Court when it comes down to composition of offences while exercising my powers under Section 320 of CrPC.

2. This case would be distinct to the one, which has been relied by the learned counsel for the applicants, in the light of the judgments of Amit Rod and others Vs. State of Uttarakhand and others and Narender Singh and others Vs. State of Punjab and Another, which will be dealt with by this Court at a later stage.

3. The facts of the case herein are that respondent No. 2, herein has registered a FIR, being FIR No. 242 dated 09.04.2019 for the offences under Section 307 of IPC, as against the named accused persons i.e. the present applicants herein Mahendra Singh and Deshraj Saini.

4. According to the set of allegations leveled in the FIR, it was contended by the complainant that the present applicants, on account of certain altercation, which took place between the two rival factions, had fired at respondent No. 3, herein from a country made pistol, which hit the left leg of Mr. Dhoom Singh, who is now of about 80 years of age and the relative of the assailant Mahendra Singh (since they are Tau and Bhatija).

5. On account of sufferance of the injury, the injured respondent No. 3 was taken to the hospital where he was administered medical aid and thereafter he was taken to the G.D. Hospital, where he underwent a treatment and after revival of his physical condition, the FIR was registered by respondent No. 2 herein. According to the medical examination report, which was conducted on the injured Dhoom Singh, it has been observed that the wound on the left thigh was of 20cm below the knee joint measuring 26x15cm area blackening and tattooing and fresh bleeding was present; x ray of the left leg was directed to be conducted and a surgeon's opinion was also solicited with regard to the nature of injuries.

6. The opinion which was extended by the doctor attending upon the injured Dhoom Singh, Dr. George Samuel, he opined that the injury has been caused by a fire arm object. In the supplementary medical report, which was submitted on 31.08.2019 by the doctor who had later on attended upon him, that is the doctors from the department of trauma surgery, AIIMS, Rishikesh, who, in his discharge report has stated that nature of injuries were grievous in nature. The report submitted by All India Institute of Medical Sciences on 26.04.2019, in fact, fortifies the earlier report with regards to the nature of injuries and its gravity, which the victim had suffered due to the fire arm injury caused upon him, which as per the FIR, it is said and found too that the present applicant Mahendra Singh was instrumental in using firearm for causing injury on respondent No. 3.

7. The matter was investigated upon and a Chargesheet, being Chargesheet No. 314 of 2020 dated 16.06.2020 was submitted by the Investigating Officer and while submitting the Chargesheet, the Investigating Officer has taken into consideration the Chik FIR; the statement of the complainant; the statement of the witnesses; the Spot Inspection Report; and the statement which was recorded under Section 164 of CrPC, as well as the statement of the doctors, who have attended upon the injured Dhoom Singh.

8. The Investigating Officer, while concluding his findings in the Chargesheet, which he had submitted on 16.06.2020 has observed that on the overall analysis of the evidences considered by him, the offence under Section 307, 326 and 34 of IPC, is made out against the present applicants. Consequently, a summoning order has been issued by the Court of ACJM, Laksar, district Haridwar, which has thereby resulted into registration of Criminal Case No. 1121 of 2020, State Vs. Mahendra Singh and Another, where the applicants have been summoned to be tried for the offences under Sections 307, 326 and 34 of IPC. Hence, the C482 Application was filed, which stood instituted before this Court on 18.11.2020.

9. At the initial stage, when the matter was argued before the coordinate Bench of this Court, there had been an interim order, as it was passed on 29.12.2021, where a question was reserved to be answered, in the context of the nature of injuries which were suffered and also in the context of vitality of the injury. The question, which was formulated was as to whether the permission to compound the offences could be granted in the aforesaid matter. The matter remained pending and today the same is listed on a Compounding Application, as jointly submitted by the parties to the C482 Application, which had been duly signed by them. The injured the complainants are present in person who had been duly identified by Mr. Mohd. Umar, who represents them. The applicants accused persons, who too are present in person before this Court and had

been duly identified by their counsel Mr. Parikshit Saini, Advocate.

10. This Court had interacted with the injured as well as the complainant and owing to the mental psychosis of the injured, who is now of about 80 years of age, and who during the course of interaction has based his compounding application on the statement made that since it was a mere family dispute and he wanted to bound the family together, despite the aforesaid incident, he has entered into a settlement, which has been referred in the Compounding Application.

11. Apart from the aforesaid statement, he submitted, that since the applicant being his real nephew, he should be pardoned for the mistake, which he has committed of firing and causing firearm injuries on his real Tau, the injured respondent No. 3 herein.

12. This Court, while during the course of interaction with the assailant Mahendra Singh had interacted with him in order to solicit his statement, as to whether at all the offence was committed by him or not and whether the summoning order could at all be justified in the circumstances of the case. The applicant No. 2 had rather was being waivered in making his statement with regard to his alleged involvement in commission of offence, which has been otherwise consistently maintained by the injured respondent No. 3, that Mahendra Singh the nephew has fired at him. But owing to the fact, that Mahendra Singh had denied the

fact of the incident, which has been referred in the FIR, coupled with the fact, since the offence under Section 307 of IPC being a social offence, the truth is required to be retrieved by the Court by undertaking a trial for the purposes of scrutinisation of an act of criminality on part of the applicant, who had fired at his own Tau.

13. The learned counsel for the applicants had referred to the principals, which this Court had followed and rendered in Criminal Miscellaneous Application No. 1581 of 2018, Amit Rod and others Vs. State of Uttarakhand and others, while considering the Compounding Application No. 10926 of 2018, which too was a case, which engaged consideration of an offence under Section 307 of IPC and in the said case while dealing with the various ratios laid down by the Hon'ble Apex Court, particularly in the matters of Gian Singh Vs. State of Punjab and another; Narender Singh and others Vs. State of Punjab and Another and that of Nikhil Merchant Vs. Central Bureau of Investigation and another, the Court has, while exercising its inherent powers under Section 482 of CrPC for the purposes of composition of an offence and while doing so, the Court, in para 32 of the judgment has referred to a judgment of Narendra Singh and others Vs. State of Punjab and Another, as reported in 2014 (6) SCC 466.

14. The wider principles which had been laid down for exercising the inherent powers which is not circumscribed by the powers granted under Section

320 of CrPC, the judgment of Narendra Singh (supra), has laid down the various modalities and the circumstances, under which the offences could be considered to be compounded by the Courts while exercising their inherent powers. There cannot be any dispute with regards to the principles laid down therein, but, in all the parameters which has been laid down there, the Hon'ble Apex Court has not touched with the aspect, as to what would be the implication of compounding of an offence which is otherwise not compoundable especially when it touches upon the basic foundational and ethical family values of the society and particularly a family itself where social virtues are required to be predominantly maintained to keep them together.

15. In both the cases, which has been referred to by the learned counsel for the applicants, these were distinct in facts altogether as these were not the case including circumstances where the social values were intended to be prevented while exercising the inherent powers for composition of an offence.

16. This Court is of the view, that with a gradual depletion of the social and human value, which is becoming quite prevalent in this modern era, the Court exercising the inherent powers, does owe a responsibility, that the compounding application has not to be blindfoldedely accepted invariably in all the cases, irrespective of its circumstances, particularly when it shaken the very consciousness of the system of

a joint Hindu family system of the country, which was quite prevalent for ages together and had been the basic structure of the society.

17. This aspect was not a subject matter which was considered in the aforesaid judgment, as referred to by the learned counsel for the applicants. Since the applicant has consistently maintained his stand, that he was not an assailant, which was otherwise denied by the injured respondent No. 3, the matter is therefore required to be tried, so that the actual assailant may be brought to the books for the establishment of an actual offence of committed an assault to his own Tau.

18. In that view of the matter, this Court is not accepting to uniformly apply the principal of compounding of an offence under Section 307 of IPC in the instant case, which is distinct in facts altogether in order to preserve the old aged ethical values of this great country of ours of the joint Hindu family of the country.

19. Owing to the aforesaid, since the applicants have denied the fact of being involved in the commission of offence, the matter is required to be tried by the learned Court, earlier ceased with the proceedings. Hence, the Compounding Application, preferred by the parties is not accepted by this Court, and the same is rejected. Because of the fact, that there is a contradiction between the parties about the actual commission of said offence, which has been complained

of in the FIR; the Chargesheet, which is also based upon a material consideration of facts and evidence on record and the consequential summoning order is not required to be ventured into by this Court in exercising its inherent powers, hence the C482 Application is dismissed. But being conscious of the fact, that the injured is now of 80 years of age, the Court of Additional Chief Judicial Magistrate, Laksar, district Haridwar, is hereby directed to conclude the trial of Criminal Case No. 1121 of 2020, State Vs. Mahendra Singh and Another, as expeditiously as possible, but not later than six months from the date of production of the certified copy of this judgment.

20. Subject to the aforesaid, the C482 Application is herby dismissed.

21. The adjudication by the trial would be independent to the observations made above by this Court.

(Sharad Kumar Sharma, J.) 04.01.2023 Mahinder/