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Rajasthan High Court · body

2014 DIGILAW 2163 (RAJ)

Mukhtyar Singh v. State of Rajasthan

2014-12-18

M.N.BHANDARI

body2014
JUDGMENT 1. - In all these petitions, common question of law has been raised, thus are decided by this common judgment. 2. In these petitions, a compromise has been arrived between the parties, thus a prayer has been made for quashing of FIR/proceedings. 3. The offences against the petitioner/s are such, which are not compoundable under Section 320 of Cr.P.C. 4. In the case of Dashrath Singh, offence is under Section 354B of IPC apart from Section 4 of Protection of Children from Sexual Offences Act, 2012 (for short "Act of 2012"). The statements of the prosecutrix were recorded under Section 164 of Cr.P.C. where she has maintained allegations. A settlement was later on arrived between the parties. 5. In the case of Mukhtyar Singh and Ghamandi Singh, a prayer for quashing of cross FIRs bearing No. 173/2014 and 165/2014 is made, based on compromise. Therein, apart from many offences, it is under Section 307 of IPC also, thus is not compoundable. 6. Learned counsel for the petitioners have referred various judgments of the Hon'ble Apex Court wherein FIR/proceedings have been quashed based on settlement even if it relates to the cases, not compoundable under Section 320 of Cr.P.C. The prayer is accordingly made for quashing of FIR/proceedings in view of the settlement between the parties. 7. In the case of Narinder Singh & Ors. v. State of Rajasthan & Anr. reported in 2014 (2) WLC (SC) Cri. 57 , it was held that denial for quashing of FIR for the offence under Section 307 of IPC would not be proper. The Court is having inherent jurisdiction and cannot be limited or curtailed by Section 320 of Cr.PC. It was found that crime against the society involves deterrent theory of punishment. On pre-conviction stage, compromise can be accepted where chances of conviction for offence under Section 307 of IPC would be remote. Seven principles have been laid down in para No. 31 for exercise of inherent powers. 8. Another judgment is in the case of Surat Singh v. State of Uttaranchal (now Uttarakhand) & Anr. reported in 2013 (3) Crimes 227 (SC) . It was for the offence under Sections 354 & 506 of IPC. Therein, permission to compound the offences was accorded and thereby, the accused/s were acquitted even after their conviction. 9. Another judgment is in the case of Kapil Anand v. State of Rajasthan & Anr. reported in 2013 (3) Crimes 227 (SC) . It was for the offence under Sections 354 & 506 of IPC. Therein, permission to compound the offences was accorded and thereby, the accused/s were acquitted even after their conviction. 9. Another judgment is in the case of Kapil Anand v. State of Rajasthan & Anr. reported in 2014 (2) RCC (Raj.) 525 wherein again a settlement was arrived for offence under Sections 354 & 354(D) of IPC for sexual harassment. The Court disposed of the petition with the direction to the Court below to attest the compromise and compound the case in the light of the compromise arrived between the parties. 10. Another judgment in the case of Yogendra Yadav & Ors. v. State of Jharkhand & Anr. reported in 2014 RCC (SC) 720 has been referred wherein criminal proceedings for the offence under Sections 326 & 307 of IPC were quashed based on compromise. 11. A reference of judgment in the case of Manoj Sharma v. State & Ors. reported in (2008) 16 SCC 1 has also been given. 12. It is submitted that in all those judgments, the principles have been laid down for quashing of FIR/proceedings and even acquittal based on compromise. The cases in hand are covered by those judgments and even by the judgment of the Hon'ble Apex Court in the case of Gian Singh v. State of Punjab & Anr. reported in 2012 (10) SCC 303 . Aforesaid case was referred to the larger Bench when it came up before two judges Bench, who doubted the correctness of the decision in the case of B.S. Joshi v. State of Haryana reported in (2003) 4 SCC 675 and Nikhil Merchant v. CBI reported in (2008) 9 SCC 677 . 13. The reference was then answered by the Hon'ble Apex Court in para Nos. 60 and 61 of the judgment in the case of Gian Singh (supra). In view of all the judgments referred above, a prayer is made to quash the FIR/proceedings based on settlement. 14. The prayer aforesaid has been opposed by learned Public Prosecutor. 15. To appreciate the argument as to whether FIR/proceedings can be quashed for an offence not compoundable under Section 320 of IPC on a settlement arrived between the parties, judgments referred to above have to be considered. 16. 14. The prayer aforesaid has been opposed by learned Public Prosecutor. 15. To appreciate the argument as to whether FIR/proceedings can be quashed for an offence not compoundable under Section 320 of IPC on a settlement arrived between the parties, judgments referred to above have to be considered. 16. The judgment in the case of Gian Singh (supra) is by the Larger Bench on a reference to find out the correctness of the earlier judgments in the case of B.S. Joshi (supra) and Nikhil Merchant (supra) apart from the judgment in the case or Manoj Sharma (supra). Para Nos. 57 to 61 of the judgment in the case of Gian Singh (supra) are relevant, thus quoted hereunder for ready reference: "57. Quashing of offence or criminal proceedings on the ground on settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable Strictly speaking, the power of compounding of offences given to court under Section 320 is materially different from quashing of criminal proceedings by the High Court in exercise of its inhered jurisdiction. In compounding offences, power of a criminal court this circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand the formation of opinion by the High Court for quashing a criminal offence or criminal proceedings or criminal complaint is guided by tin material on record as to whether the ends of justice would justify suet exercise of power although the ultimate consequence may be acquitted or dismissal of indictment. 58. Where High Court quashes a criminal proceeding having regards the fact that dispute between the offender and victim has been settle' 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. 59. B.S. Joshi, Nikhil Merchant, Manoj Sharma and Shiji do illustrate the principle that High Court may quash criminal proceedings or FIR or complaint in exercise of its inherent power under Section 482 of the Code and Section 320 does not limit or affect the powers of the High Court under Section 482. Can it be said that by quashing criminal proceedings in B.S. Joshi, Nikhil Merchant, Manoj Sharma and Shiji alias Pappu, this Court has compounded the non-compoundable offences indirectly? We do not think so. There does exist the distinction between compounding of an offence under Section 320 and quashing of a criminal case by the High Court in exercise of inherent power under Section 482. We do not think so. There does exist the distinction between compounding of an offence under Section 320 and quashing of a criminal case by the High Court in exercise of inherent power under Section 482. The two powers are distinct and different although ultimate consequence may be same viz., acquittal of the accused or dismissal of indictment. 60. We find no incongruity in the above principle of law and the decision of this Court in Simrikhia, Dharampal, Arun Shankar Shukla, Ishwar Singh, Rumi Dhar (Smt.) and Ashok Sadarangani. The principle propounded in Simrikhia that the inherent jurisdiction of the High Court cannot be invoked to override express bar provided in law is by now well settled. In Dharampal, the Court observed the same thing that the inherent powers under Sections 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code. Similar statement of law is made Ir Arun Shankar Shukla. In Ishwar Singh, the accused was alleged to have committed an offence punishable under Section 307, IPC and with reference to Section 320 of the Code, it was held that the offence punishable under Section 307 IPC was not compoundable offence and there was express bar in Section 320 that no offence shall be compounded if it is not compoundable under the Code. In Rumi Dha (Smt.) although the accused had paid the entire due amount as per the settlement with the bank in the matter of recovery before the Debt; Recovery Tribunal, the accused was being proceeded with for commission of offences under Section 120B/420/467/468/471 of the IPC along with the bank officers who were being prosecuted under Section 13(2) read with 13(1)(d) of Prevention of Corruption Act. The Court refused to quash the charge against the accused by holding that the Court would not quash a case involving a crime against the society when a prima facie case has been made out against the accused for framing the charge. The Court refused to quash the charge against the accused by holding that the Court would not quash a case involving a crime against the society when a prima facie case has been made out against the accused for framing the charge. Ashok Sadarangani was again a case where the accused persons were charged of having committed offences under Section 120-B, 465, 467, 468 and 471, IPC and the allegations were that the accused secured the credit facilities by submitting forged property documents as collaterals and utilised such facilities in a dishonest and fraudulent manner by opening letters of credit in respect of foreign supplies of goods, without actually bringing any goods but inducing the bank to negotiate the letters of credit in favour of foreign suppliers and also by misusing the cash-credit facility. The Court was alive to the reference made in one of the present matters and also the decisions in B.S. Joshi, Nikhil Merchant and Manoj Sharma and it was held that B.S. Joshi, and Nikhil Merchant dealt with different factual situation as the dispute involved had overtures of a civil dispute but the case under consideration in Ashok Sadarangani was more on the criminal intent than on a civil aspect. The decision in Ashok Sadarangani supports the view that the criminal matters involving overtures of a civil dispute stand on a different footing. 61. 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 bi 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 o any Court. In what cases power to quash the criminal proceeding o complaint or F.I.R. may be exercised where the offender and victim have settled their dispute would depend on the facts an: circumstances of each case and no category can be prescribed However, before exercise of such power, the High Court must haw 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. 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" 17. The Hon'ble Apex Court has clarified as to in what cases, the FIR/proceedings can be quashed based on compromise between the parties. It is held that power of compounding of offence given to the Court under Section 320 of Cr.RC. is materially different from quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. The Hon'ble Apex Court has clarified as to in what cases, the FIR/proceedings can be quashed based on compromise between the parties. It is held that power of compounding of offence given to the Court under Section 320 of Cr.RC. is materially different from quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. The High Court quash the criminal proceedings having regard to the fact that dispute between the offender and the victim has been settled, though the offences are not compoundable. The High Court does so in its opinion, continuation of criminal proceedings would be an exercise in futility and justice in the case demands that dispute between the parties is put to an end and peace is restored to secure ends of justice. The court was, however, cautious to hold that it would not be permissible in respect of serious offences like murder, rape, dacoity, etc. or other offences of mental depravity or offence of moral turpitude and under special statutes, like the Prevention of Corruption Act, etc. The offences, which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such transactions apart from the offences arisen out of matrimony, etc. can be quashed based on settlement between the parties because there would be hardly any possibility of conviction after settlement between the parties. In para No. 60 of the judgment in the case of Gian Singh (supra), it was, however, found that the principle has been propounded in the case of Simrikhia v. Dolley Mukharjee reported in (1990) 2 SCC 437 that inherent jurisdiction of the High Court cannot be invoked to override express bar provided in law is by now well settled. In the case of Dharampal v. Ramshri reported in (1993) 1 SCC 435 , it was held that inherent power of the Court under Section 482 of Cr.P.C. cannot be utilised for exercising powers, which are expressly barred by the Code. 18. Similar view was taken by the Hon'ble Apex Court in the case of Arun Shankar Shukla v. State of U.P. reported in (1999) 6 SCC 146 and in the case of Ishwar Singh v. State of M.P. reported in (2008) 15 SCC 667 . 19. 18. Similar view was taken by the Hon'ble Apex Court in the case of Arun Shankar Shukla v. State of U.P. reported in (1999) 6 SCC 146 and in the case of Ishwar Singh v. State of M.P. reported in (2008) 15 SCC 667 . 19. In the case of Ishwar Singh (supra), offence was punishable under Section 307 of IPC, thus not compoundable under Section 320 of Cr.P.C. Looking to the specific bar, the Court refused to quash the proceedings. In para No. 61 of the judgment in the case of Gian Singh (supra), the Hon'ble Apex Court, however, made distinction between inherent jurisdiction of the Court with that the power of the Courts under Section 320 of Cr.PC. The inherent power of the Court is of wide plenitude with no statutory limitation but has to be exercised in accord with the guideline engrafted in such powers, which are to secure the ends of justice or to prevent abuse of the process of law. In those cases, inherent power can be exercised but before exercise of such powers, the High Court must have due regard to the nature and gravity of the crime. In view of the judgments aforesaid, settlement can be taken note for quashing of FIR/proceedings even if offence is no compoundable under Section 320 of Cr.RC. 20. In the case of Narinder Singh & Ors. (supra), seven guidelines have been laid down for exercise of powers by the High Court. Para No. 31 of the said judgment is also quoted hereunder for ready reference : "31. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings : (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. 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, or (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 objective. (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 tho offender. (IV) On the other hand, 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) Offence 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. 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/delecate 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 latter 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. 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." 21. It is held that if case is at the stage of pre-conviction then possibility of conviction would be remote after settlement. The cases in hand are at the initial stage and settlement has been arrived between the parties, though none of the cases herein are of civil nature or predominantly arising out of commercial or mercantile transactions. It is not even out of matrimonial dispute. As per the judgment in the case of Narinder Singh & Ors. (supra), FIR and proceedings in the case of heinous and serious offences are generally treated to be crime against the society and not against the individual alone. A distinction is however made. The High Court can examine as to whether incorporation of Section 307 IPC is 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. A distinction is however made. The High Court can examine as to whether incorporation of Section 307 IPC is 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 and if it is found that a case under Section 307 of IPC is not made out then to further see as to whether there exists strong possibility of conviction or it is bleak. In case, possibility of conviction is remote or bleak, the charge sheet can be quashed. 22. With the aforesaid, the cases in hand were considered. In the cases of Mukhtyar Singh and Ghamandi Singh, cross FIRs exist and initially, it was not registered under Section 307 of IPC. The weapon used is not such, which can show intention for commission of offence under Section 307 of IPC also as the injuries. 23. Taking the facts in totality and the settlement between the parties in cross FIRs, it is quashed. 24. So far as the case of Dashrath Singh is concerned, therein a review petition has been filed, though it is not maintainable as per the provisions of Cr.P.C., however, considering overall facts relevant to the case, it is disposed of with the directions to the Investigating Agency to complete the investigation at the earliest, after taking into consideration the effect of settlement between the parties. 25. With the aforesaid, criminal misc. petitions and criminal misc. application are disposed of. This disposes of the stay application/s as well.Petitions disposed of. *******