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Himachal Pradesh High Court · body

2017 DIGILAW 1255 (HP)

Papinder Kumar v. State of Himachal Pradesh

2017-11-14

SANDEEP SHARMA

body2017
JUDGMENT : Sandeep Sharma, J. 1. Present Criminal revision petition filed under Section 397 read with Section 401 of the Cr.P.C. is directed against the judgment dated 1.10.2011, rendered by the learned Sessions Judge, Sirmaur, District at Nahan, H.P. in Criminal Appeal No. 53-Cr.A/10 of 2009, affirming the judgment of conviction and order of sentence dated 15.09.2009/17.09.2009, passed by learned Judicial Magistrate, 1st Class, Court No. 1, Paonta Sahib, District at Nahan, H.P. in Criminal Case No. 40/2 of 2007, whereby learned trial Court held petitioner-accused guilty of having committed the offences punishable under Sections 279, 337 and 338 of Indian Penal Code (for short IPC) and accordingly convicted and sentenced him as under:- 1. To undergo simple imprisonment for a period of one month and to pay a fine of Rs. 500/- and in case of default of payment of fine, to further undergo simple imprisonment for 7 days, under Section 279 IPC. 2. To undergo simple imprisonment for a period of one month and to pay a fine of Rs. 500/- and in case of default of payment of fine, to further undergo simple imprisonment for 7 days, under Section 337 IPC. 3. To undergo simple imprisonment for a period of three months and to pay a fine of Rs. 500/- and in case of default of payment of fine, to further undergo simple imprisonment for one month, under Section 338 IPC. 2. Petitioner-accused, being aggrieved and dissatisfied with the judgment of conviction, passed by the learned trial Court, filed an appeal under Section 374 of Cr.P.C. before the Court of learned Sessions Judge, Sirmaur District at Nahan, H.P. which came to be registered as Criminal Appeal No. 53-Cr.A/10 of 2009, but fact remains that same was dismissed, as a result of which, judgment of conviction passed by learned trial Court came to be upheld. In the aforesaid background, present petitioner-accused approached this Court by way of instant criminal petition, praying therein for acquittal of the petitioner- accused after setting-aside and quashing the judgment of conviction recorded by the learned Courts below. 3. In the aforesaid background, present petitioner-accused approached this Court by way of instant criminal petition, praying therein for acquittal of the petitioner- accused after setting-aside and quashing the judgment of conviction recorded by the learned Courts below. 3. It may be noticed that during the pendency of the present case, Miscellaneous application i.e. Cr.M.P. No. 829 of 2017 under Section 482 read with Section 320 of Code of Criminal Procedure, came to be filed on behalf of the applicant/petitioner, seeking therein permission to place on record compromise deed, dated 24.8.2015 entered into between the applicant/petitioner and the complaints namely Sh. Anayat Khan and Smt. Anjum. 4. Mr. Karan Singh Kanwar, learned counsel, representing the petitioner-accused, while inviting attention of this Court to compromise deed Annexure C-1, contended that the petitioner-accused has entered into the compromise with the complainants namely Sh. Anayat Khan and Smt. Anjum, whereby both the parties with the intervention of elders and some respectable persons of the locality, have resolved to live peacefully and cordially and in this view of the matter, the complainants have consented to withdraw the case got registered by them against the petitioner-accused. 5. By way of aforesaid application, petitioner-accused has placed on record compromise Annexure C-1, whereby both the parties have settled the matter amicably and entered into the compromise with the hope to live peacefully and maintain cordial relation with each other. The parties to the compromise have further stated in their compromise that they do not want to pursue the matter in this Court in terms of the amicable settlement arrived between themselves and as such, FIR No. 112 of 2007, dated 2.4.2007, under Sections 279, 337 and 338 of IPC, may be quashed and set-aside. 6. This Court with a view to ascertain the genuineness and correctness of the aforesaid averments contained in the application as well as in the compromise Annexure C-1, also recorded the statements of complainants namely Sh. Anayat Khan and Smt. Anjum, who are present in Court. Both the complainants stated before the Court that they with their own volition have entered into the aforesaid compromise, whereby they have decided not to pursue the matter before this Court further. Statement of complainants recorded by this Court, are taken on record. 7. Mr. Anayat Khan and Smt. Anjum, who are present in Court. Both the complainants stated before the Court that they with their own volition have entered into the aforesaid compromise, whereby they have decided not to pursue the matter before this Court further. Statement of complainants recorded by this Court, are taken on record. 7. Mr. Karan Singh Kanwar, learned counsel, representing the petitioner/accused, stated that since parties have arrived into an amicable settlement, without there being any pressure or influence on the complainants, the instant matter may be ordered to be compounded. In support of his arguments, Mr. Kanwar, placed reliance on judgment passed by the Hon'ble Supreme Court in case titled Narinder Singh and Others vs. State of Punjab and Another, JT 2014 (4) SC 573, whereby the Hon'ble Apex Court has formulated guidelines for accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings. Mr. R.K. Sharma, learned Deputy Advocate General, opposed the aforesaid prayer of Mr. Kanwar on the ground that petitioner-accused stands already convicted by the learned Courts below and as such, no relief, if any, can be granted in terms of aforesaid judgment passed by the Apex Court. Relevant paras of judgment supra read as under:- "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. 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. (ii) to prevent abuse of the process of any Court. 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. (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, 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 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. 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. 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. 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." 8. The Hon'ble Apex Court in case Gian Singh vs. State of Punjab and Another, (2012) 10 SCC 303 has held that power of the High Court in quashing of the criminal proceedings or FIR or complaint in exercise of its inherent power is distinct and different from the power of a Criminal Court for compounding offences under Section 320 Cr.P.C. Even in the judgment passed in Narinder Singh's case, the Hon'ble Apex Court has held that while exercising inherent power of quashment under Section 482 Cr.P.C. the Court must have due regard to the nature and gravity of the crime and its social impact and it cautioned the Courts not to exercise the power for quashing proceedings in heinous and serious offences of mental depravity, murder, rape, dacoity etc. However subsequently, the Hon'ble Apex Court in Dimpey Gujral and Others vs. Union Territory through Administrator, UT, Chandigarh and Others, (2013) 11 SCC 497 has also held as under:- "7. In certain decisions of this Court in view of the settlement arrived at by the parties, this Court quashed the FIRs though some of the offences were non-compoundable. A two Judges' Bench of this court doubted the correctness of those decisions. Learned Judges felt that in those decisions, this court had permitted compounding of non-compoundable offences. The said issue was, therefore, referred to a larger bench. The larger Bench in Gian Singh vs. State of Punjab, (2012) 10 SCC 303 considered the relevant provisions of the Code and the judgments of this court and concluded as under: (SCC pp. 342-43, para 61) 61. The said issue was, therefore, referred to a larger bench. The larger Bench in Gian Singh vs. State of Punjab, (2012) 10 SCC 303 considered the relevant provisions of the Code and the judgments of this court and concluded as under: (SCC pp. 342-43, para 61) 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 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. 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. 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." (Emphasis supplied) 8. In the light of the above observations of this court in Gian Singh, we feel that this is a case where the continuation of criminal proceedings would tantamount to abuse of process of law because the alleged offences are not heinous offences showing extreme depravity nor are they against the society. They are offences of a personal nature and burying them would bring about peace and amity between the two sides. In the circumstances of the case, FIR No. 163 dated 26.10.2006 registered under Section 147, 148, 149, 323, 307, 452 and 506 of the IPC at Police Station Sector 3, Chandigarh and all consequential proceedings arising there from including the final report presented under Section 173 of the Code and charges framed by the trial Court are hereby quashed. 9. In the aforesaid case, Hon'ble Apex Court specifically observed that this is a case where the continuation of criminal proceedings would tantamount to abuse of process of law because the alleged offences are not heinous offences showing extreme depravity nor are they against the society. They are offences of a personal nature and burying them would bring about peace and amity between the two sides. They are offences of a personal nature and burying them would bring about peace and amity between the two sides. In the instant case also, the complainants were aggrieved on account of injuries suffered by them due to accident allegedly caused by the rash and negligent driving of the petitioner-accused and offences are of purely personal nature and in no manner, they are against society. Hence, this Court after having carefully perused the contents of the application filed under Section 482 Cr.P.C. as well as compromise arrived inter se the parties, sees no impediment in accepting the joint prayer having been made by the complainants as well as petitioner by way of aforesaid miscellaneous application. 10. Consequently, in view of the peculiar facts and circumstances of the case, wherein parties have compromised the matter at hand, the FIR No. 112 of 2007, dated 2.4.2007, under Sections 279, 337 and 338 of IPC, registered at Police station Paonta Sahib, is quashed and set-aside. Since FIR has been quashed, the judgments passed by learned courts below are also quashed and set-aside. The petitioner accused is acquitted of the charges having been framed against him. His bail bonds are ordered to be discharged. 11. The petition stands allowed in the aforesaid terms. Pending application, if any also stands disposed of.