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2016 DIGILAW 3225 (ALL)

Ikram v. State of U. P.

2016-09-21

VIVEK KUMAR BIRLA

body2016
JUDGMENT V.K. Birla, J. 1. Heard Sri Ajay Kumar Pathak, learned counsel for the applicants and learned A.G.A. for the State. 2. Sri Anurag Shukla, Advocate has put in appearance on behalf of the opposite party No. 2. 3. Present application has been filed for quashing of the entire proceedings of Session Trial No. 208 of 2014, arising out of Case Crime No. 693 of 2012, under sections 147, 148, 149, 452, 307,506 I.P.C. and section 7 of Criminal Law Amendment Act, Police Station Sadabad, District Hathras. 4. Learned counsel for the parties are agreed that a compromise has taken place between the parties and an affidavit to this effect has already been filed before the court below. 5. Learned counsel for the applicant has placed reliance on judgments of the Hon'ble Apex Court in the case of Yogendra Yadav Vs. State of Jharkhand and others, (2014) 9 SCC 353 and Narendra Singh Vs. State of Punjab and another, (2014) 6 SCC 466 to contend that such compromise can take place between the parties. 6. List this case on 8.11.2016. 7. No doubt, the offence punishable under Section 307 IPC is not compoundable, therefore, this Court in exercise of inherent power can always consider the quashing of the proceedings even in respect of offences which are non compoundable, on the basis of a compromise between the parties. 8. In the case of Narendra Singh and others Vs. State of Punjab, (2014) 6 SCC 466 guidelines have been laid as to when criminal proceedings including for an offence punishable under Section 307 IPC can be quashed in proceedings under Section 482 Cr.P.C. on the ground of a compromise between the parties. The guidelines laid in the said judgment are contained in paragraph 29 of the report, which provides as follows: - "29. 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: 29.1. 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. 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. 29.2. 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 objectives. 29.3. 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. 29.4. 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. 29.5. 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. 29.6. Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore are 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 Section307 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/delicate 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. 29.7. 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 to 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." 9. As the entire material brought on record is not sufficient for this Court to draw satisfaction whether the instant case is a fit case where the proceeding of the court below should be quashed in the light of the observations made by the apex court, noticed herein above, the concerned Chief Judicial Magistrate is directed to prepare a report in the light of the observations made by the Apex Court in the case of Narendra Singh and others (Supra) with regards to: (a) the nature of the injuries caused on the victim(s); (b) the nature of the weapon by which such injuries were caused; and (c) the stage at which the trial is, as also whether the statement of the witnesses have so far been recorded or not. Such report shall be prepared by the court below within a period of four weeks from the date a certified copy of this order is furnished before the court below. While preparing the report, the court below will also mention whether the alleged compromise has been admitted by the parties including the victim(s) before it or not. Such report shall be prepared by the court below within a period of four weeks from the date a certified copy of this order is furnished before the court below. While preparing the report, the court below will also mention whether the alleged compromise has been admitted by the parties including the victim(s) before it or not. In fact, before proceeding to prepare a report to the above effect, the court below will secure the presence of the parties including victim(s) to verify the alleged compromise. 10. Learned counsel for the parties agree that the parties shall remain present before the Court below on 3.10.2016. 11. If the said compromise is verified, the same shall be made part of the record and report to that effect will be prepared and the parties would be allowed to obtain certified copy thereof. 12. Till the next date of listing, if within two weeks from today a certified copy of this order is produced before the court below along with the compromise application or with an application to verify a compromise already placed on record, no coercive steps would be taken against the applicants till verification of the compromise in accordance with the observations made herein above.