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2016 DIGILAW 517 (UTT)

Sarfaraz @ Haider v. State of Uttaranchal

2016-08-27

U.C.DHYANI

body2016
JUDGMENT : U.C. Dhyani, J. 1. A first information report was lodged by the informant Banda Hasan against Sarfaraz @ Haider, Jabir, Shaheed, Mustafa, Islam and Lateef on 24.06.2009, in PS Kotwali Laksar, District Haridwar, for the offences punishable under Sections 147, 148, 149, 307, 323, 452, 504 and 506 IPC. A separate FIR was also lodged against accused-appellant Sarfaraz & Haider for the offence punishable under Section 25 Arms Act. After the investigation, charge-sheet against the said accused persons was submitted in respect of the selfsame offences. When the trial commenced, charges against them were framed in respect of the offences punishable under Sections 147, 148, 149, 307, 323, 452, 504 and 506 IPC, to which they pleaded not guilty and claimed trial. The accused persons underwent the trial. After considering the evidence on record, learned trial court, vide judgment and order dated 15.12.2014, convicted appellants Sarfaraz @ Haider, Jabir, Shaheed, Mustafa, Islam and Lateef for the offences under Sections 147, 148, 149, 307, 323, 452, 504 and 506 IPC and sentenced them accordingly. Accused-appellant Sarafraz @ Haider was also convicted for the offence punishable under Section 25 Arms Act. Aggrieved against the conviction and sentence, Sarfaraz @ Haider, Jabir, Shaheed, Mustafa, Islam and Lateef, preferred this Criminal Appeal. Accused-appellant Sarafraz @ Haider has filed separate Criminal Appeal against his conviction under Section 25 Arms Act. 2. CRMA No. 1388 of 2016 has been filed by the both the parties for permitting them to compound the offences punishable under Sections 147, 148, 149, 307, 323, 452, 504 and 506 IPC against the accused-appellants. Appellant no. 6 Lateef is reported to have died. Injured persons, namely, Rustam, Naushad and Mukarram, and Banda Hasan (informant) are present in person, duly identified by their counsel Mr. Gaurav Singh, Advocate. Injured persons submitted that they are not willing to prosecute the accused persons. They submitted that since the dispute has been resolved with the intervention of few elderly persons, therefore, they have exonerated the accused persons. They seek permission to compound the offences for which the appellants were convicted. All the accused persons are present before the Court. They are duly identified by their counsel Mr. Parikshit Saini, Advocate. 3. They submitted that since the dispute has been resolved with the intervention of few elderly persons, therefore, they have exonerated the accused persons. They seek permission to compound the offences for which the appellants were convicted. All the accused persons are present before the Court. They are duly identified by their counsel Mr. Parikshit Saini, Advocate. 3. Whereas offences punishable under Sections 323, 504 and 506 of IPC are compoundable offences within the scheme of Section 320 of Cr.P.C., offences punishable under Sections 147, 148, 149, 452 and 307 of IPC are not. The question is – whether the injured-persons should be permitted to compound such offences against the accused /appellants or not? 4. 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 through 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. 5. Learned counsel for the parties drew the attention of this Court towards the ruling of Gian Singh v. State of Punjab and another (2013) 1 SCC (Cri) 160 in which 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. 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. 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 questions is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.” 6. Taking a leaf out of the book of Hon’ble Apex Court in Dimpey Gujral vs. Union Territory through 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 informant/injured persons should be permitted to compound the offence punishable under Section 307 IPC against the accused-appellants in the interest of justice. Otherwise, learned counsel for the informant/injured persons conceded that the criminal appeal deserves to be allowed on merits also. 7. Learned counsel representing the State opposed the compounding application on the ground that compounding after the conviction under section 307 of IPC is not permissible. The said submission of learned counsel for the State is contrary to Sub-Section (5) of Section 320 Cr.P.C. and the judgments of Hon’ble Apex Court in Dimpey Gujral (supra) and Gian Singh (supra). It will be useful to reproduce herein Sub-Section (5) of Section 320 Cr.P.C. as follows: “320(5)- When the accused has been committed for trial or when he has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court to which he is committed, or, as the case may be, before which the appeal is to be heard.” 8. Since the Criminal Appeals are pending before this Court against the conviction of the accused persons, therefore, injured persons are seeking leave of this Court to permit them to compound the offences, for which the accused-appellants have been convicted. Sub-Section (5) of Section 320 Cr.P.C. is meant for those offences, which are compoundable offences within the Scheme of Section 320 Cr.P.C. It is true that Section 307 of IPC is non-compoundable offence within the scheme of Section 320 Cr.P.C., but the Hon’ble Apex Court has permitted compounding of such offence in the case of Dimpey Gujral (supra) and Gian Singh (supra). The contention of learned counsel for the State, therefore, falls to the ground in view of the above proposition of law. 9. Reliance may also be placed in Dina Nath Prasad & others vs. State & Anr., decided by Hon’ble Delhi High Court on 12th January, 2016 in Criminal Misc. Case no. The contention of learned counsel for the State, therefore, falls to the ground in view of the above proposition of law. 9. Reliance may also be placed in Dina Nath Prasad & others vs. State & Anr., decided by Hon’ble Delhi High Court on 12th January, 2016 in Criminal Misc. Case no. 111 of 2016, in which Hon’ble Court has permitted to compound the offence punishable under the Arms Act, Judgment rendered by Hon’ble Allahabad High Court on 18.11.2015 in C-482 Petition No. 31751 of 2015, Rajendra Sharma and others vs. State of U.P. & another and the Judgment rendered by Punjab and Haryana High Court on 29.05.2012 in Crl. Misc. Case No. 22608 of 2011, Satwinder Singh & another vs. State of Punjab & others. 10. CRMA No. 1388 of 2016 is thus allowed. Injured persons are permitted to compound the offences complained of against the convict-appellants. As a consequence thereof, Judgment and Order dated 15.12.2014, passed by learned Additional Sessions Judge, Laksar, District Haridwar, in Sessions Trial No. 395 of 2009, is hereby set aside in terms of the compromise entered into between the parties, i.e. injured persons and the accused-appellants. The conviction and sentence recorded by the Trial Court is also set aside. Accused-appellants stand acquitted of the charge of offences punishable under Sections 147, 148, 149, 307, 323, 452, 504 and 506 IPC. Likewise, Judgment and Order dated 15.12.2014, passed by learned Additional Sessions Judge, Laksar, District Haridwar, in Sessions Trial No. 396 of 2009, is also set aside in terms of the compromise entered into between the parties, i.e. injured persons and the accused-appellant Sarfaraz @ Haider. Accused-appellants are on bail. Their bail bonds are cancelled and sureties stand discharged. They need not surrender. 11. Both the Criminal Appeals are thus disposed of in terms of compromise arrived at between the parties. 12. Let a copy of this Judgment along with lower court records be sent back to the court below for compliance as above.