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2013 DIGILAW 477 (UTT)

Mustakeem v. State of Uttaranchal

2013-07-18

U.C.DHYANI

body2013
Judgment U.C. Dhyani, J. PW 2 Manjoor Hasan, lodged a first information report against Mustakeem, Shakeel and Naseem on 20.06.1994, in PS Jwalapur, Haridwar, for the offence punishable under Section 307 IPC. After the investigation, a charge-sheet against them was filed for the selfsame offence. The case was committed to the Court of Sessions. When the trial commenced and prosecution opened it’s case, the charge for the offence punishable under Section 307 read with Section 34 IPC was framed against the accused-persons, to which they pleaded not guilty and claimed trial. 2. PW 1 Mohd. Hasan, PW 2 Manzoor Hasan, PW 3 Jahid, PW 4 Doctor K.P. Sarabhai, PW 5 Doctor Vijay Bahadur and PW 6 SI Intezar Ali were examined on behalf of the prosecution. Incriminating evidence was put to the accused persons under Section 313 Cr.P.C., in which they said that they have been falsely implicated in the case. DW 1 Mohd. Alam was examined in defence. After considering the evidence on record, learned Trial Court convicted the accused persons for the offence punishable under Section 307 IPC read with Section 34 IPC and sentenced them appropriately, vide impugned Judgment and Order dated 22.11.2001. Aggrieved against the impugned Judgment and Order, present Criminal Appeal was preferred. 3. PW 1 Mohd. Hasan was the injured. It is stated by learned counsel for the appellants that Mohd. Hasan (injured) has died. Mohd. Hasan’s widow Smt. Fato and his (Mohd. Hasan’s) sons Farman and Qurban are present in person, who are duly identified by their counsel Mohd. Safdar. The legal heirs of the injured said that they are not interested in prosecution of the accused-appellants. They also prayed to this Court that the Criminal Appeal filed by the appellants be allowed. 4. The offence punishable under Section 307 IPC is not a compoundable offence within the scheme of Section 320 Cr.P.C. The question, therefore, arises- whether the legal heirs of the injured should be permitted to compound the offence complained of, and proved against the appellants? 5. 4. The offence punishable under Section 307 IPC is not a compoundable offence within the scheme of Section 320 Cr.P.C. The question, therefore, arises- whether the legal heirs of the injured should be permitted to compound the offence complained of, and proved against the appellants? 5. Learned counsel for the parties drew the attention of this Court towards the judgment rendered by Hon’ble Apex Court on 6th December, 2012, in Transfer Petition (Criminal) No. 115 of 2012 Dimpey Gujral vs. Union Territory though Administrator U.T. Chandigarh and others, [2013 (123) AIC 119 (S.C.)] in which the Hon’ble Apex Court, relying upon Gian Singh v. State of Punjab and another (2013) 1 SCC (Cri) 160, permitted the injured to compound the offences punishable under Sections 147, 148, 149, 323, 307, 452 and 506 IPC. 6. In Gian Singh v. State of Punjab and another (2013) 1 SCC (Cri) 160 Hon’ble Supreme Court observed as below: “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 F.I.R may be exercised where the offender and 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 serious impact on society. 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 serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like 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 pre-dominatingly civil flavour stand on 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, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put 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 wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.” 7. Taking a leaf out of the book of Hon’ble Apex Court in Dimpey Gujral vs. Union Territory though Administrator U.T. Chandigarh and others, [2013 (123) AIC 119 (S.C.)], and Gian Singh v. State of Punjab and another (2013) 1 SCC (Cri) 160, this Court is of the view that the legal heirs of the informant/injured should be permitted to compound the offence punishable under Section 307 IPC read with Section 34 IPC against the accused-appellants, in the interest of society as well as in the interest of justice. 8. The offence punishable under Section 307 IPC read with Section 34 IPC is accordingly compounded and as a consequence thereof, the Criminal Appeal preferred by the accused-appellants is allowed. The conviction and sentence awarded to the appellants, vide impugned Judgment and Order dated 22.11.2001, are set aside. The appellants are on bail. Their bail bonds are cancelled and sureties are discharged. They need not surrender. A copy of this Judgment along with the lower court records be sent back to the Court below for compliance.