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2011 DIGILAW 2 (SIK)

Sunil Prasad v. State of Sikkim

2011-06-02

S.P.WANGDI

body2011
JUDGMENT (1) On a written complaint lodged by the respondent No. 2 in the Rangpo Police Station, East Sikkim, on 6-1-2007, case under Section 420/468/34 of the Indian Penal Code, had been registered against the petitioners who are related to him as son-in- law and daughter respectively. It was alleged in the complaint that on 18-11-2006, the petitioners while eloping with each other had committed theft of a UTI Bank cheque belonging to the respondent No. 2 and used it by forging his signature to illegally withdraw a sum of Rs. 23,000/- from his account held in the UTI Bank, Rangpo Branch. (2) The investigation culminated in the police filing a charge-sheet before the Chief Judicial Magistrate, East and North Sikkim at Gangtok, where trial against the petitioners for offences under Sections 420/468/34 of the Indian Penal Code began after the learned Magistrate had taken cognizance and registration of G. R. Case No. 114 of 2007.During the proceedings of the case, the petitioners have approached this Court with the present application seeking quashing of the G. R. Case pending before the learned Chief Judicial Magistrate on the ground that the petitioners and the respondent No.2 have amicably settled the matter by drawing up a compromise agreement dated 11-3-2011. Upon notice being issued to the respondent No. 2, he has filed an affidavit duly affirmed by him on 31-5-2011 where in paragraphs 3, 4, 6 and 7, the following have been stated :- "3. That G.R. Case No. 114 of 2007 (State of Sikkim v. Shri Sunil Prasad and another) pending before the Court of learned Chief Judicial Magistrate East Sikkim at Gangtok was initiated on the basis of FIR lodged by me. My daughter and son-in-law named above are facing the trial under Section 420/ 468/471/380/34, IPC before the learned trial Court. (3) That I had lodged the FIR against my own kith and kin i.e. the petitioners, getting myself annoyed when my daughter, the petitioner No. 2 eloped with the petitioner No. 1 against our social norms and that they also used the cheques from my bank account. 6. That I have no ill will against the petitioners. I do not want to prosecute them as they are my very closed relatives. In view of the same I have compromised the matter with them on 11th day of March 2011. 6. That I have no ill will against the petitioners. I do not want to prosecute them as they are my very closed relatives. In view of the same I have compromised the matter with them on 11th day of March 2011. Since, I have already compromised with the petitioners I do not want or pursue the G. R. Case No. 114 of 2007 (State of Sikkim v. Sunil Prasad and another) pending before the learned Chief Judicial Magistrate, East Sikkim at Gangtok. I do not also want to contest the instant Crl. M. C. No. 4 of 2011. 7. That I admit the entire contents of the application filed by the petitioners under Section 482 read with Section 320 of Criminal Procedure Code, 1973 in the instant Crl. M. C. No. 4 of 2011 and support the prayer made by the petitioners." 4. Considering the nature of the case, the facts and circumstances obtaining therein and the question for determination in the case being quite short, it was felt that the matter could be disposed of today at the stage of hearing on admission, a position which was agreed to by Mr. N. Rai, learned Senior Counsel for the petitioners, and Mr. Karma Thinlay Namgyal, learned Additional Public Prosecutor for the respondent No. 1. (4) Heard. The question that arises for consideration is that when the nature of the offences are such that they are not only not com- poundable but also are serious in nature being offences of forgery and cheating allegedly committed with the common intentions of the petitioners, would it be permissible in law for this Court to quash the criminal proceedings on the ground that the parties have compromised in the matter? The other question that troubles this Court is that when ordinarily in the circumstances as stated in the present case, provision for withdrawal from prosecution exist under Section 321 of the Code of Criminal Procedure, would it be appropriate for this Court to exercise its inherent powers as sought for by the petitioners, the effect of which would amount to circumventing the provision under Section 321 of the Code of Criminal Procedure? Mr. Mr. N. Rai, learned senior counsel appearing on behalf of the petitioners, placed before this Court the decision of Manoj Sharma v. State (2008) 16 SCC 1 : (AIR 2008 SC (Supp) 1171) where, in an identical situation, the Hon'ble Supreme Court quashed a criminal proceeding by exercising its powers under Section 482, Cr. P. C. I may usefully refer to the following portions of the judgment:- "8. In our view, the High Court's refusal to exercise its jurisdiction under Article 226 of the Constitution for quashing the criminal proceedings cannot be supported. The first information report, which had been lodged by the complainant indicates a dispute between the complainant and the accused which is of a private nature. It is no doubt true that the first information report was the basis of the investigation by the police authorities, but the dispute between the parties remained one of a personal nature. Once the complainant decided not to pursue the matter further, the High Court could have taken a more pragmatic view of the matter. We do not suggest that while exercising its powers under Article 226 of the Constitution, the High Court could not have refused to quash the first information report, but what we do say is that the matter could have been considered by the High Court with greater pragmatism in the facts of the case. 9. As we have indicated hereinbefore, the exercise of power under Section 482, Cr. P. C. or Article 226 of the Constitution is discretionary to be exercised in the facts of each case. In the facts of this case, we are of the view that continuing with the criminal proceedings would be an exercise in futility. We, accordingly, allow the appeal and set aside the order of the High Court and quash the criminal proceedings pending before the learned Additional Chief Metropolitan Magistrate, Karkardooma Court, Delhi, in FIR No. 50 of 1997 dated 31-1-1997, PS Vivek Vihar (East Delhi). 25. However, in my opinion these judgments cannot be read as a Euclid's formula since it is well settled that judgments of a Court cannot be read mechanically and like Euclid's theorem vide Rajbir Singh Dalai, (Dr.) v. Chaudhari Devi Lal University, 2008 AIR SCW 5817 Bharat Petroleum Corpn. Ltd. v. N. R. Vairamani, AIR 2004 SC 4778. 25. However, in my opinion these judgments cannot be read as a Euclid's formula since it is well settled that judgments of a Court cannot be read mechanically and like Euclid's theorem vide Rajbir Singh Dalai, (Dr.) v. Chaudhari Devi Lal University, 2008 AIR SCW 5817 Bharat Petroleum Corpn. Ltd. v. N. R. Vairamani, AIR 2004 SC 4778. In rare and exceptional cases, a departure can be made from the principle laid down in the decisions referred to in para 27, as observed in B. S. Joshi case, which has also been followed in other decisions e.g. Nikhil Merchant case. Even in the judgment of this Court in Aravali Golf Club where emphasis has been laid on judicial restrain, it has been mentioned that sometimes judicial activism can be resorted to by the Court where the situation forcefully requires it in the interest of the country or society (vide para 39 of the said judgment). Judicial activism was rightly resorted to by the US Supreme Court in Brown v. Board of Education, 347 US 483 Miranda v. Arizona, Roe v. wade 410 US 113 etc. and by Lord Denning in England in several of his decisions". (5) Mr. Karma Thinlay Namgyal, learned Additional Public Prosecutor, submits that as the continuance of the criminal case would be a futile exercise as the respondent No. 2, who is the only witness of substance, others being simply seizure witnesses, has expressed that he does not wish to pursue with the case, it is a fit case where this Court should exercise its inherent powers and quash the proceedings of the criminal case. Attention of this Court was drawn by him to paragraph 23 of the judgment in the case of Manoj Sharma (supra) where it has been stated that the words "nothing in the Code" used in Section 482 being a non obstante clause, gives it an overriding effect over other provisions in the Code of Criminal Procedure and, that the words "or otherwise to secure the ends of justice" implies that sometimes High Courts can pass an order in violation of a provision in the Code of Criminal Procedure, though such power is to be exercised in very rare cases. (6) I may also refer to the cases of Nikhil Merchant v. Central Bureau of Investigation and Anr. (2008) 9 SCC 677 : (AIR 2009 SC 428); B. S. Joshi and Ors. (6) I may also refer to the cases of Nikhil Merchant v. Central Bureau of Investigation and Anr. (2008) 9 SCC 677 : (AIR 2009 SC 428); B. S. Joshi and Ors. v. State of Haryana and Anr. (2003) 4 SCC 675 : (AIR 2003 SC 1386) where the Supreme Court has quashed criminal proceedings in which non-com- poundable offences were involved by following the above principles of law. In fact, the case of B. S. Joshi may be considered as the genesis of the principle. Considering the facts and circumstances obtaining in the case and the law laid down by the Apex Court in the above cases, I have no hesitation to hold that this Court should exercise its inherent power being invoked by the petitioners. (7) In the result, the petition is allowed and the proceeding in G. R. Case No. 114 of 2007 is hereby quashed. (8) No order as to costs. Petition allowed.