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2012 DIGILAW 24 (SIK)

Bikash Rai v. State of Sikkim

2012-12-11

S.P.WANGDI

body2012
ORDER Heard. 2. Notices are dispensed with as Mr. Karma Thiniay Namgyal, learned Additional Public Prosecutor and the Respondent No.2 appearing in person accept notice for the Respondent No.1 and for self respectively. As the question involved in the case is a short one upon admitted facts, the parties have agreed to finally hear and dispose it of at this very stage. 3. By filing this application the petitioner seeks to quash the proceedings under G. R. Case No. 32 of 2012 arising out of FIR No. 28 (3) 2012 dated 8-3-2012 pending against him in the Court of the Learned Judicial Magistrate, East Sikkim at Gangtok for offence under Section 326 of the Indian Penal Code. 4. The genesis of the case against him is traced to an incident that took place on 8-10-2012 when the Petitioner had assaulted the Respondent No.2, who is his elder brother, after a marriage reception of their younger sister resulting in him being booked under Section 326 of the Indian Penal Code by the Gangtok Sadar Police Station which culminated in the ongoing G. R. Case referred to above. These facts would be sufficient for dealing with the matter before us. 5. Mrs. Laxmi Chakraborty, learned Advocate for the petitioner, submits that the petitioner and his brother, Respondent No.2, have amicably settled the matter between them and the Respondent No.2 does not desire to pursue with the case against the petitioner any further. An affidavit to that effect duly affirmed by the Respondent No.2, filed as Annexure 3, has been referred to by Mrs. Chakraborty in support of her submission. As per the learned counsel, the petitioner has approached this Court under Section 482 of the Code of Criminal Procedure seeking to quash the proceedings in G. R. Case No.32 of 2012 invoking its inherent jurisdiction as the offence charged against him is a non-compoundable one. 6. Mr. Karma Thinlay Namgyal, learned Additional Public prosecutor, fairly concedes to the position that in exercise of the powers under Section 482 Cr. P. C., this Court under the present circumstances can quash the proceeding if it comes to the conclusion that ends of justice so require. 6. Mr. Karma Thinlay Namgyal, learned Additional Public prosecutor, fairly concedes to the position that in exercise of the powers under Section 482 Cr. P. C., this Court under the present circumstances can quash the proceeding if it comes to the conclusion that ends of justice so require. Reliance was placed upon the decision of the Hon’ble Supreme Court in Shiji alias Pappu and others v. Radhika and another : AIR 2012 SC 499 wherein in a circumstance as in the present case it has been held as under: 10. In B. S. Joshi and Ors. v. State of Haryana, (2003) 4 SCC 675 : ( AIR 2003 SC 1386 : 2003 AIR SCW 1824), the question that fell for consideration before this Court was whether the inherent powers vested in the High Court under Section 482 Cr. P. C. could be exercised to quash non-compoundable offences. .................This Court observed : 8. It is, thus, clear that Madhu Limaye case (1977) 4 SCC 551 : ( AIR 1978 SC 47 ) does not lay down any general proposition limiting power of quashing the criminal proceedings or FIR or complaint as vested in Section 482 of the Code or extraordinary power under Article 226 of the Constitution of India. We are, therefore, of the view that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, Section 320 would not be a bar to the exercise of power of quashing. It is, however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power. 15. In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code. 11. That brings to the decision of this Court in Madan Mohan Abdot’s case ( AIR 2008 SC 1969 : 2008 AIR SCW 2287) (supra) whereby the High Court had declined the prayer for quashing of the prosecution for offences punishable under Sections 379, 406, 409, 418, 506/34 IPC despite a compromise entered into between the complainant and the accused. 11. That brings to the decision of this Court in Madan Mohan Abdot’s case ( AIR 2008 SC 1969 : 2008 AIR SCW 2287) (supra) whereby the High Court had declined the prayer for quashing of the prosecution for offences punishable under Sections 379, 406, 409, 418, 506/34 IPC despite a compromise entered into between the complainant and the accused. The High Court had taken the view that since the offence punishable under Section 406 was not compoundable the settlement between the parties could not be recognized nor the pending proceedings quashed. This Court summed up the approach to be adopted in such cases in the following words: 6. We need to emphasise that it is perhaps advisable that in disputes where the question involved is of a purely personal nature, the Court should ordinarily accept the terms of the compromise even in criminal proceedings as keeping the matter alive with no possibility of a result in favour of the prosecution is a luxury which the Courts, grossly overburdened as they are, cannot afford and that the time so saved can be utilised in deciding more effective and meaningful litigation. This is a common sense approach to the matter based on ground of realities and bereft of the technicalities of the law. 7. We see from the impugned order that the learned Judge has confused compounding of an offence with the quashing of proceedings. The outer limit of Rs. 250/- which has led to the dismissal of the application is an irrelevant factor in the later case. We, accordingly, allow the appeal and in the peculiar facts of the case direct that FIR No. 155 dated 17-11-2001 P S Kotwali, Amritsar and all proceedings connected therewith shall be deemed to be quashed. 12. The outer limit of Rs. 250/- which has led to the dismissal of the application is an irrelevant factor in the later case. We, accordingly, allow the appeal and in the peculiar facts of the case direct that FIR No. 155 dated 17-11-2001 P S Kotwali, Amritsar and all proceedings connected therewith shall be deemed to be quashed. 12. To the same effect is the decision of this Court in Nikhil Merchant v. CBI 2008 (9) SCC 677 : ( AIR 2009 SC 428 : 2008 AIR SCW 7501) where relying upon the decision in B. S. Joshi ( AIR 2003 SC 1386 : 2003 AIR SCW 1824) (supra), this Court took note of the settlement arrived at between the parties and quashed the criminal proceedings for offences punishable under Sections 420, 467, 468 and 471 read with Section 120-B of IPC and held that since the criminal proceedings had the overtone of a civil dispute which had been amicably settled between the parties it was a fit case where technicality should not be allowed to stand in the way of quashing of the criminal proceedings since the continuance of the same after the compromise arrived at between the parties would be a futile exercise. We may also at this stage refer to the decision of this Court in Manoj Sharma, v. State and Ors. (2008) 16 SCC 1 : (AIR 2008 SC (Supp) 1171). This Court observed : 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. xxxxxxxxx 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. Once the complainant decided not to pursue the matter further, the High Court could have taken a more pragmatic view of the matter. xxxxxxxxx 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.... 13. It is manifest that simply because an offence is not compoundable under Section 320 IPC, is by itself no reason for the High Court to refuse exercise of its power under Section 482 Cr. P. C. That power can in our opinion be exercised in cases where there is no chance of recording a conviction against the accused and the entire exercise of a trial is destined to be an exercise in futility. There is a subtle distinction between compounding of offences by the parties before the trial Court or in appeal on one hand and the exercise of power by the High Court to quash the prosecution under Section 482 Cr. P. C. on the other. While a Court trying an accused or hearing an appeal against conviction, may not be competent to permit compounding of an offence based on a settlement arrived at between the parties in cases where the offences are not compoundable under Section 320, the High Court may quash the prosecution even in cases where the offences with which the accused stand charged are non-compoundable. The inherent powers of the High Court under Section 482 Cr. P. C. are not for that purpose controlled by Section 320 Cr. P. C. Having said so, we must hasten to add that the plenitude of the power under Section 482 Cr. P. C. by itself, makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the power itself demands that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. It is neither necessary nor proper for us to enumerate the situations in which the exercise of power under Section 482 may be justified. It is neither necessary nor proper for us to enumerate the situations in which the exercise of power under Section 482 may be justified. All that we need to say is that the exercise of power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse of the process of law. The High Court may be justified in declining interference if it is called upon to appreciate evidence for it cannot assume the role of an appellate Court while dealing with a petition under Section 482 Cr. P. C. Subject to the above, the High Court will have to consider the facts and circumstances of each case to determine whether it is a fit case in which the inherent powers may be invoked. (underlining mine) 7. As in the cases of Madan Mohan Abbot v. State of Punjab, AIR 2008 SC 1969 and Manoj Sharma v. State and Ors., (2008) 16 SCC 1 : (AIR 2008 SC (Supp) 1171) referred to and relied upon in Shiji alias Pappu and others v. Radhika and another, AIR 2012 SC 499 (supra), the dispute between the Respondent No.2 and the petitioner in the case at hand is of a private nature and, as held in those cases once the complainant has decided not to pursue the matter further it is felt necessary for this Court to take a pragmatic view and consider exercising its discretionary power under Section 482 CrPC. 8. In order to convince itself, the parties, i.e., the petitioner, who is the accused in the case, and the victim, Respondent No.2, who are present in Court, were asked as to the veracity of the facts stated in the petition and, their answers were in the affirmative. The Respondent No.2 has stated in most categorical terms that he did not desire to pursue with the case against the petitioner further as he was his younger brother and that he had forgiven him for his action. 9. In B. S. Joshi and others v. State of Haryana and another, AIR 2003 SC 1386 it has been held as under : 10. In State of Karnataka v. L. Muniswamy and Ors. 9. In B. S. Joshi and others v. State of Haryana and another, AIR 2003 SC 1386 it has been held as under : 10. In State of Karnataka v. L. Muniswamy and Ors. ( (1977) 2 SCC 699 ) : ( AIR 1977 SC 1489 ), considering the scope of inherent power of quashing under Section 482, this Court held that in the exercise of this wholesome power, the High Court is entitled to quash proceedings if it comes to the conclusion that ends of justice so require. It was observed that in a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceedings in the interest of justice and that the ends of justice are higher than the ends of mere law though justice had got to be administered according to laws made by the legislature. This Court said that the compelling necessity for making these observations is that without a proper realization of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction. On facts, it was also noticed that there was no reasonable likelihood of the accused being convicted of the offence. .......... (underlining mine) 10. The foundation of the case against the petitioner in G. R. Case No. 32 of 2012, is the assault of the Respondent No.2 by the petitioner which now stands rendered non-existent in view of the compromise arrived at between the victim, Respondent No.2 and the accused, the petitioner. 11. Under such circumstances and in the light of the law laid down in the afore-mentioned cases, in my view, it would be futile for the prosecution to insist upon the continuance of the trial of the petitioner. 12. In view of this, it would be in the interest of justice if the proceeding in G. R. Case No. 32 of 2012 against the petitioner is quashed and, therefore, it hereby stands quashed. 13. In the result, the application is allowed. 14. No order as to costs. 15. 12. In view of this, it would be in the interest of justice if the proceeding in G. R. Case No. 32 of 2012 against the petitioner is quashed and, therefore, it hereby stands quashed. 13. In the result, the application is allowed. 14. No order as to costs. 15. Let a copy of this Order be transmitted forthwith to the learned Judicial Magistrate, East Sikkim at Gangtok for its compliance. Petition allowed.