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2014 DIGILAW 1490 (HP)

Shashi Pal v. State of Himachal Pradesh

2014-10-20

DHARAM CHAND CHAUDHARY

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JUDGMENT : DHARAM CHAND CHAUDHARY, J. 1. This judgment shall dispose of both petitions under Section 482 of the Code of Criminal Procedure filed with a prayer to quash the F.I.Rs. registered at the instance of the parties against each other in Police Station, Gagret, District Una. 2. Shashi Pal, the petitioner in CRMMO No.191 of 2014 is accused in FIR No.98 of 2011, registered against him at the instance of 2nd respondent, Smt. Reshma Devi under Sections 323 and 324 of Indian Penal Code. The police after investigation of the case has filed challan against him, which has been registered as Criminal Case No.6-1 of 2012/31-II of 2012 and pending disposal in the Court of Judicial Magistrate, Court No.2, Amb, District Una. 3. Similarly, a cross case vide FIR No.97 of 2011 has been registered at the instance of Shashi Pal, aforesaid against Smt. Reshma Devi, her husband Kishori Lal and son Anil Kumar, petitioners in CRMMO No.192 of 2014, under Sections 451 and 323 read with Section 34 of Indian Penal Code. Criminal Case No.8-1 of 2012 arising out of this FIR is also pending disposal in the Court of Judicial Magistrate, Court No.2, Amb, District Una. Both cases are presently at the initial stage, i.e. recording of prosecution evidence. The parties are neighbours. They belong to same community. It has come in their statements recorded separately that the occurrence took place at the spur of moment on account of some land dispute, trivial in nature. Therefore, in order to maintain friendly and cordial relations, they have decided not to prosecute the cases registered against each other at their instance. The deed of compromise duly signed by the parties on both sides in the presence of witnesses is Annexure P-2 to these petitions. 4. It is pertinent to note that an offence punishable under Sections 451 and 323 of Indian Penal Code is compoundable under Section 320 of the Code of Criminal Procedure. It is, however, the offence punishable under Section 324 of Indian Penal Code, is not compoundable. Since the petitioners in CRMMO No.192 of 2014 have allegedly committed the offence punishable under Sections 451 and 323 read with Section 34 of Indian Penal Code, therefore, the complainant in the said case, i.e. Shashi Pal could have compounded the offence in the trial Court itself. Since the petitioners in CRMMO No.192 of 2014 have allegedly committed the offence punishable under Sections 451 and 323 read with Section 34 of Indian Penal Code, therefore, the complainant in the said case, i.e. Shashi Pal could have compounded the offence in the trial Court itself. However, since the offence he allegedly committed under Section 324 of Indian Penal Code is not compoundable, therefore, both parties have approached this Court by filing these petitions under Section 482 of the Code of Criminal Procedure for quashing the proceedings against them. 5. The law on the issue is no more res-integra as the Apex Court in Gian Singh Vs. State of Punjab and another, (2012) 10 SCC 303 has held that the High Court in exercise of inherent powers vested in it under Section 482 of the Code of Criminal Procedure, may quash the FIR in such cases where the offence allegedly committed though is not compoundable, however, the victim and the accused have settled the dispute amicably, of course in appropriate cases having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions, matrimonial or relating to dowry etc. in which the wrong basically is done to the victim. However, as per this judgment, in the cases of serious nature like rape, dacoity and corruption cases etc. the practice of quashing FIR has been deprecated keeping in view that such offences have serious impact in the society at large. This judgment reads as follows:- “58. Where High Court quashes a criminal proceeding having regard to the fact that dispute between the offender and victim has been settled although 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. No doubt, crimes are acts which have harmful effect on the public and consist in wrong doing that seriously endangers and threatens well-being of society and it is not safe to leave the crime- doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without permission of the Court. In respect of serious offences like murder, rape, dacoity, etc; or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between offender and victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to victim and the offender and victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or F.I.R if it is satisfied that on the face of such settlement, there is hardly any likelihood of offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard and fast category can be prescribed.” 6. The Apex Court in Narinder Singh & Ors. v. State of Punjab & another, JT 2014(4) SC 573 has laid down the following guidelines for being considered in a case of this nature: “(I) 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. (II) 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. (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. (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. (III) Such a power is not 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 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. (IV) On the other, those criminal cases having overwhelmingly and pre-dominantly 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. (V) 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. (VI) Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore is 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/delegate 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. 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/delegate 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 later 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 in harmony between them which may improve their future relationship. (VII) 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 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. It is seen that both cases arising out of the F.I.Rs. registered against each other at the instance of both parties, are presently at the stage of recording prosecution evidence. The Apex Court in Narinder Singh’s case (supra) has held that in a case where the evidence is yet to start or the evidence is still at infancy stage, the High Court may exercise the powers to quash the proceedings, however, after prima-facie assessing the given facts and circumstances of the case. 8. In the case in hand, the petitioners in both the petitions are the victims. They have settled the dispute amongst them. Compromise deed, Annexure P-2 has been filed in both the cases. Therefore, at this stage, when an amicable and complete settlement is already arrived at between the parties, this Court feels that to allow the proceedings in criminal cases to continue may amount to abuse of process of law. Otherwise also, when the complainants in both F.I.Rs. have arrived at a compromise and made statements in the Court, the chances of conviction in both cases are very bleak. Being so, I accept these petitions and quash FIR Nos.97 of 2011 and 98 of 2011 registered under Sections 451 and 323 read with Section 34 of Indian Penal Code and Sections 323 and 324 of Indian Penal Code respectively against the petitioners in Police Station, Gagret, District Una and also all the consequential proceedings, i.e. Criminal Cases No.6-1 of 2012/31-II of 2012 and 8-1 of 2012, pending disposal in the Court of learned Judicial Magistrate (2), Amb, District Una. 9. With the above observations, both petitions succeed. The same are accordingly allowed and stand finally disposed of.