Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 747 (HP)

Akhil Bhardwaj v. State of HP

2017-06-30

SANDEEP SHARMA

body2017
JUDGMENT : Sandeep Sharma, J. By way of instant petition filed under Section 482 of the Code of Criminal Procedure, a prayer has been made for quashing of the FIR No. 177 of 2012, dated 27.7.2012, under Sections 498-A, 406, 506, 534 and 345 of IPC, registered at Police Station Sadar, District Una, H.P., and consequent proceedings in Criminal Case No.56-II/5/51-1/2013, pending adjudication before the learned Judicial Magistrate 1st Class, Court No.2, Una, District Una, H.P. 2. Necessary facts, as emerge from the record are that on the basis of complaint having been filed by respondent No.3, namely Anikta, FIR No.177 of 2012, dated 27.7.2012 came to be registered in police Station, Sadar, District Una, H.P., under Sections 498-A, 406, 506, 534 and 345 of IPC against the petitioners. Police after completion of the investigation presented the challan in the competent court of law and the proceedings arising out of the aforesaid FIR are still pending before the learned Judicial Magistrate 1st Class Court No.2, Una in Criminal case No. 56-II/5/51- 1/2013. 3. Mr. Ajay Sharma, learned counsel representing the petitioners, while inviting attention of this Court to the copy of joint application (Annexure P-1), having been filed by the parties under Order 23 Rule 3 CPC placing therewith compromise arrived at inter se the parties, stated that both the parties have entered into compromise. Perusal of aforesaid application suggests that same was jointly filed by the petitioner as well as respondent No.3, namely Ankita Bhardwaj by way of CMP No.1855 of 2017 in FAO(HMA) No.418 of 2016, praying therein that decree of divorce by mutual consent be passed in terms of the conditions contained in the compromise. Taking note of aforesaid application, this Court vide judgment dated 25.3.2017 disposed of the FAO(HMA) No.418 of 2016 as well as Criminal Revision No.96 of 2015, as having been compromised. 4. Mr. Ajay Sharma, learned counsel, while referring to aforesaid judgment dated 25.3.2017, passed by this Court in FAO (HMA) No.418 of 2016 as well as Criminal Revision No.96 of 2015, strenuously argued that since parties have settled the matter amicably, the instant FIR registered at the behest of respondent No.3, Ankita Bhardwaj may be quashed and setaside. 4. Mr. Ajay Sharma, learned counsel, while referring to aforesaid judgment dated 25.3.2017, passed by this Court in FAO (HMA) No.418 of 2016 as well as Criminal Revision No.96 of 2015, strenuously argued that since parties have settled the matter amicably, the instant FIR registered at the behest of respondent No.3, Ankita Bhardwaj may be quashed and setaside. He further stated that since parties have dissolved their marriage in terms of the conditions contained in the compromise placed on record of FAO(HMA) No.418 of 2016, no fruitful purpose would be served in case proceedings initiated against the petitioner on the basis of FIR, as referred above, are allowed to continue. Apart from above, Mr. Sharma, also invited the attention of this Court to the terms and conditions of the compromise, wherein respondent No.3, Ankita Bhardwaj has undertaken to withdraw all the proceedings initiated by her against the petitioners. 5. At this stage, Mr. Sanjeev Kuthiala, learned counsel representing respondents No.2 and 3, stated that they have no objection in case the FIR No.177 of 2012, dated 27.7.2012 as well as consequent proceedings, as mentioned in the instant case are ordered to be quashed and set-aside. He also placed on record ‘No objection Certificate’ given by respondent No.3. 6. I have heard learned counsel for the parties and have gone through the record. 7. This Court, after having carefully perused the compromise, which has been duly effected between the parties, sees substantial force in the prayer having been made by the learned counsel for the petitioners that the FIR as well as consequent proceedings pending before the learned Judicial Magistrate 1st Class Court No.2, Una, can be ordered to be quashed and setaside. At this stage, this Court deems it fit to notice that pursuant to aforesaid compromise arrived inter-se the parties, this Court disposed of FAO (HMA) No.418 of 2016 as well as Criminal Revision No.96 of 2015 having been filed by the respective parties, as having been compromised. It may be further taken note that pursuant to agreement arrived inter-se the parties, an amount of Rs. 24 lacs stands paid to respondent No.3, Ankita Bhardwaj in the instant case by the petitioners. It may be further taken note that pursuant to agreement arrived inter-se the parties, an amount of Rs. 24 lacs stands paid to respondent No.3, Ankita Bhardwaj in the instant case by the petitioners. Since, the parties have mutually agreed to dissolve their marriage and to withdraw all cases filed against each other, this Court is persuaded to consider the prayer for quashment of FIR as well as consequent proceedings, as referred above. 8. Since the application has been filed under Section 482 Cr.P.C, this Court deems it fit to consider the present application in the light of the judgment passed by Hon’ble Apex Court in Narinder Singh and others versus State of Punjab and another (2014) 6 SCC 466 , whereby 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. Perusal of judgment referred above clearly depicts that in para 29.1, Hon’ble Apex Court has returned the findings that 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 great caution. Para Nos. 29 to 29.7 of the judgment are reproduced 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. 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 under Section 482 Cr.P.C 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. 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. 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 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. The Hon’ble Apex Court in case Gian Singh v. State of Punjab and anr. (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.PC. Even in the judgment passed in Narinder Singh’s case, the Hon’ble Apex Court has held that while exercising inherent power under Section 482 Cr.PC 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 Ors. vs. Union Territory through Administrator, UT, Chandigarh and Ors. 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. However subsequently, the Hon’ble Apex Court in Dimpey Gujral and Ors. vs. Union Territory through Administrator, UT, Chandigarh and Ors. 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 v. 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. 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.” (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. 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.” 10. Accordingly, in view of the averments contained in the application as well as the submission having been made by the learned counsel for the petitioners that the matter has been compromised, and keeping in mind the well settled proposition of law as well as the compromise being genuine, this Court has no inhibition in accepting the compromise and quashing the FIR as well as proceedings pending in the trial Court. 11. Consequently, in view of the peculiar facts and circumstances of the case, wherein parties have compromised the matter at hand, this Court while exercising power vested in it under Section 482 Cr.P.C., deems it fit to accept the prayer having been made by the learned counsel representing the petitioners. 12. Accordingly, in view of the discussion made hereinabove, the FIR No.177 of 2012, dated 27.7.2012, registered at Police Station Sadar, District Una H.P., under Sections 498-A, 406, 506, 534 and 345 of IPC as well as the consequent proceedings in Criminal Case No.56-II/5/51-1/2013 pending adjudication before the learned Judicial Magistrate 1st Class, Court No.2, Una, District Una, H.P. are ordered to be quashed and set-aside. The present petition is allowed in the aforesaid terms. Pending applications, if any, also stands disposed of.