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2018 DIGILAW 1359 (ALL)

SHIV BABU v. STATE OF U. P.

2018-05-28

DEVENDRA KUMAR UPADHYAYA, RAJNISH KUMAR

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JUDGMENT : Devendra Kumar Upadhyaya, J. Pursuant to order dated 22.05.2018, petitioner no.1-Shiv Babu and petitioner no.4-Ram Narayan respectively and respondent no.4-Pappu Modanwal are present in Court. 2. For getting the dispute settled between the parties, the Court had passed the following order:- "Sri Ashok Kumar Srivastava, Advocate has put in appearance on behalf of respondent no.4. Pursuant to the order dated 15.05.2018, the petitioner no.1-Shiv Babu and respondent no.4-Pappu Modanwal are present. It has been stated by learned counsel appearing for the petitioners that earlier, before the learned court below a compromise was arrived at, however, the same could not materialize. Respondent no.4 has stated that in case the petitioner undertakes to bear the expenses incurred by him for treatment of her daughter, he will not prosecute the petitioners' in relation to the impugned F.I.R. any further. Before the learned Magistrate, it was agreed between the parties that the petitioners shall pay a sum of Rs.3,20,000/- to the respondent in August 2017. Accordingly, it has been stated by the learned counsel for the respondent no.4 that if sum of Rs. 3,35,000/- is given to him towards the expenditure incurred by him for the treatment of her daughter, he shall not prosecute the petitioners any further and that will be full and final settlement of the issues between the parties. The proposal so made by the respondent no. 4 is acceptable to the petitioner no.1-Shiv Babu and petitioner no.4-Ram Narayan who are also present. Shiv Babu, petitioner no.1 has stated that the said proposal is acceptable to all the petitioners who are closely related family members. Accordingly, we direct the petitioners to transfer the aforesaid amount of Rs. 3,35,000/- in the bank account of respondent no.4 by the next date of listing. For the said purpose, learned counsel appearing for the respondent no.4 shall provide account details of the Bank account of respondent no.4 to the learned counsel appearing for the petitioners at the earliest. List this case on 28.05.2018, on which date the petitioner no.1 and the respondent no.4 shall again be present before the Court. When the case is next listed, the name of Sri Ashok Kumar Srivastava, Advocate shall also be shown as counsel for the respondent in the cause list". 3. List this case on 28.05.2018, on which date the petitioner no.1 and the respondent no.4 shall again be present before the Court. When the case is next listed, the name of Sri Ashok Kumar Srivastava, Advocate shall also be shown as counsel for the respondent in the cause list". 3. In deference to the order dated 22.05.2018, a bank draft favouring Pappu Modanwal, son of Moti Lal has been presented amounting to Rs.3,35,000/- drawn on Baroda, Uttar Pradesh, Gramin Bank dated 24.05.2018. The said bank draft has been handed over to respondent no.4-Pappu Modanwal in the Court itself and a photocopy thereof has been taken on record. 4. In view of the aforesaid, it has been stated by learned counsel for parties that no issue remains to be resolved between the parties and this may be full and final settlement of this issue between them. 5. They further prayed that in view of the aforesaid settlement arrived at between the parties, the impugned First Information Report lodged at Case Crime No.288 of 2016, under Sections 498-A, 323, 506 IPC and Section 3/4 of Dowry Prohibition Act, Police Station Jethwara, District Pratapgarh may be quashed. 6. Pappu Modanwal, who is informant of impugned First Information Report and the respondent no.4 in the present petition, is present in Court and has stated categorically that since parties have settled their dispute and he has received a bank draft as disclosed above, he does not want to pursue the proceedings of aforesaid First Information Report any further, therefore the aforesaid FIR may be quashed. 7. The Supreme court in the case of B.S. Joshi and others versus State of Haryana and another : (2003) 4 SCC 675 has held that in matrimonial matters it becomes duty of the Court to encourage genuine settlement of matrimonial disputes and considering the special feature of a case where the chances of an ultimate conviction are bleak and no useful purpose would be served by allowing a criminal prosecution to continue in the court and while taking into consideration the special facts should quash the proceedings. In para 14 of the said judgment the Supreme Court has opined as under:- "14. There is no doubt that the object of introducing Chapter XX-A containing Section 498-A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. In para 14 of the said judgment the Supreme Court has opined as under:- "14. There is no doubt that the object of introducing Chapter XX-A containing Section 498-A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498-A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper-technical view would be counter productive and would act against interests of women and against the object for which this provision was added. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XX-A of Indian Penal Code". 8. The aforesaid judgment was followed in the case of Nikhil Merchant versus C.B.I. and another : (2008) 9 SCC 677 and Manoj Sharma versus State and others : (2008) 16 SCC 1 . However, in Gian Singh versus Station of Punjab: (2010) 15 SCC 118 , a two Judges Bench of the Supreme Court doubted the correctness of these decisions including one in B.S. Joshi's case (supra) and matter was referred to a three Judges Bench. 9. In view of the aforesaid reference, a three Judges Bench of the Supreme Court in the case of Gian Singh versus State of Punjab and another (2012) 10 SCC 303 considered the questions referred to it and reiterated the ratio of the judgment in B.S. Joshi's case (supra). The Supreme Court in the aforesaid judgment has held that the cases predominantly with civil flavour particularly offences arising out of commercial, financial, mercantile, civil, partnership or other like transactions or the offences arising out of matrimony particularly relating to dowry etc., or the family disputes, where the wrong is basically private or personal in nature and the parties have settled their dispute outside the Court, in these category of cases, the High Court should quash the criminal proceedings, if High Court is of the opinion that as a result of compromise between the parties, possibility of conviction is remote or bleak. In para 61 of the aforesaid judgment the Supreme Court has held as under:- "61. In para 61 of the aforesaid judgment the Supreme Court has held as under:- "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 FIR may be exercised where the offender and the 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 a serious impact on society. Similarly, any compromise between the victim and the 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, the 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 the 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 the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding." 10. The Supreme Court in the case of Narinder Singh and others versus State of Punjab and another: (2014) 6 SCC 466 while relying on the earlier judgment in Gian Singh's case (supra) has held that the High Court in exercise of its inherent power may quash the criminal proceedings even in those cases which are non compoundable but the parties have settled their disputes between themselves. The relevant para i.e. 29.1 to 29.7 of the aforesaid judgment is extracted hereinbelow:- "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, or (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, 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 to 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 the 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 predominantly 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. 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. 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 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." 11. In view of above, we are of the considered opinion that no fruitful purpose would be served by allowing the prosecution, lodged by the impugned First Information Report, to continue, rather it may cause oppression and prejudice. Our this view is also fortified by paragraph 15(ix) of a recent judgment of Hon'ble Supreme Court reported in AIR 2017 SC 4843 : Parbhatbhai Aahir Vs. State of Gujarat and Others in which Hon'ble Supreme Court has laid down the broad principles in respect of quashing of the First Information Report. The paragraph 15 of the said judgment, on reproduction, reads as under:- "15. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions: (i) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions: (i) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court; (ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash Under Section 482 is attracted even if the offence is non-compoundable. (iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction Under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power; (iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court; (v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated; (vi) In the exercise of the power Under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences; (vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned; (viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute; (ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and (x) There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance." 12. This Court also in its judgment in Writ Petition No.22241 (M/B) of 2017: Vivek Vanswar and others versus State of U.P. and others after considering the judgments of B.S. Joshi (supra), Gian Singh (supra) and Narinder Singh (supra) in respect of quashing of the criminal proceedings initiated under Section 498-A I.P.C. and related provisions and where there is a compromise or the parties have settled their dispute outside the court, has opined that these proceedings should be quashed once the parties have settled there dispute outside the Court. Para 5 of the Vivek Vanswar's case (surpa) reads as under:- "5. The object of the criminal prosecution is to punish guilty for committing the offence. Para 5 of the Vivek Vanswar's case (surpa) reads as under:- "5. The object of the criminal prosecution is to punish guilty for committing the offence. When the result of the prosecution is well known that it would result in acquittal inasmuch as the complainant herself would not support the prosecution case, it would not serve any purpose for allowing the prosecution to go on. When it is absolutely crystal clear that the continuance of the criminal proceedings would be an exercise in futility, the High Court should not hesitate to quash such proceedings if the complainant herself comes before the Court and says that the criminal proceedings initiated by her be quashed against the accused. It is also well known fact that there has been a phenomenal surge in cases under Section 498A I.P.C. but there have been only a very few convictions. This fact itself shows that prosecution under Section 498A I.P.C. is quite often used as a potent weapon to settle score or for oblique purposes. Keeping in view the aforesaid facts, the High Court should quash the criminal proceedings arising out of the matrimonial discord particularly when complainant herself comes before a court for quashing of the criminal proceedings initiated by her on the ground that the parties have settled their disputes outside the Court." 13. Considering the settlement arrived at between the parties and the action taken in pursuance thereof and the categorical stand of the respondent no.4 before this Court that he does not want to prosecute and pursue the FIR any further, we are of the considered opinion that no useful purpose would be served in continuation of criminal proceedings in pursuance of the impugned First Information Report lodged by respondent no.4. Accordingly, it would be appropriate, in the facts and circumstances of the case, to quash the impugned First Information Report as continuation of the proceedings of the First Information Report would be a futile exercise. 14. We, therefore, allow the writ petition and quash the proceedings of the First Information Report lodged at Case Crime No.288 of 2016, under Sections 498-A, 323, 506 IPC and Section 3/4 of Dowry Prohibition Act, Police Station Jethwara, District Pratapgarh. 15. At this juncture, learned counsel for the petitioners has stated that in respect of bouncing of earlier cheque, a notice under Section 138 of Negotiable Instrument Act has been issued upon them. 15. At this juncture, learned counsel for the petitioners has stated that in respect of bouncing of earlier cheque, a notice under Section 138 of Negotiable Instrument Act has been issued upon them. Respondent no.4, who himself is present has stated that in view of the developments which have taken place during the proceedings of this petition, he will not press the said notice any further and the same be deemed to have been withdrawn by him. The earlier cheque which is said to have been bounced has been returned by the respondent no.4 to the petitioner no.1. 16. The said statement is thus, made part of this order. 17. Learned counsel for the petitioners has also stated that a motorcycle belonging to petitioner no.1-Shiv Babu was forcibly taken by respondent no.4 and he may be required to hand over the said motorcycle to the petitioner no.1. Respondent no.1, however, has stated that the said motorcycle is lying in Police Station Jethwara, District Pratapgarh. 18. Accordingly, we provide that for release of motorcycle the petitioner no.1 shall move appropriate application before the appropriate authority/court concerned and on ascertaining the credentials of the petitioner no.1 and if law so warrants, motorcycle shall be released in his favour by the authority/court concerned.