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2018 DIGILAW 1437 (ALL)

SWAPNIL RAJ GUPTA v. STATE OF U. P.

2018-06-28

DEVENDRA KUMAR UPADHYAYA, IRSHAD ALI

body2018
JUDGMENT Hon’ble Irshad Ali, J.—Heard learned counsel for the petitioner, learned Additional Government Advocate representing the State-respondents and perused the material on record. 2. The present petition has been filed for quashing the impugned First Information Report dated 11.1.2018, lodged at Case Crime No. 031 of 2018, under Sections 346, 323, 308, 392, 506, 427 I.P.C., Police Station Gomti Nagar, District Lucknow. 3. From perusal of the impugned First Information Report it appears that the allegations by the complainant/informant have been levelled which have been arisen out due to dispute in between two friends and ultimately both the parties have entered into compromise. 4. In view of the aforesaid compromise arrived at between the parties, a prayer has been made by learned counsel for the opposite party No. 3 by way of filing an application alongwith a short-counter-affidavit to quash the impugned First Information Report dated 11.1.2018. The victim and offender both are friends and have arrived at settlement by way of compromise, therefore, the FIR lodged against the petitioner is liable to be quashed. 5. Jurisdiction of this Court under Article 226 of the Constitution of India is to be exercised primarily to meet the ends of justice. Hon’ble Supreme Court in the latest judgment rendered in this regard in the case of Parbatbhai Aahir alias Parbatbhai Bhimsinghbhai Karmur and others v. State of Gujarat and another, (2017) 9 SCC 641 , has broadly laid down the following legal propositions in exercise of inherent powers of High Court under Section 482, Cr.P.C. as also in exercise of discretionary jurisdiction vested in it under Article 226 of the Constitution of India. “16. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions : 16.1. 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. 16.2. 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. 16.2. 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. 16.3. 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. 16.4.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. 16.5. 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. 16.6. 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. 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. 16.7. 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. 16.8.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. 16.9. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned. 16.8.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. 16.9. 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 16.10. There is yet an exception to the principle set out in propositions 16.8 and 16.9 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.” The respondent No. 3-complainant-informant has also filed an affidavit stating therein that in view of the aforementioned compromise arrived at between the parties, the complainant does not intend to prosecute the petitioners any further in pursuance of the impugned First Information Report. In the light of the aforesaid developments, it has been prayed by the learned counsel appearing for the petitioners that the impugned First Information Report be quashed, which prayer is not being opposed by the learned counsel representing the respondentNo. 3-complainant-informant. 6. Petitioner-Swapnil Raj Gupta and complainant-respondent No. 3 (Vaibhav Singh) are present before the Court and have categorically stated that in terms of the compromise arrived at between the parties, informant does not want to prosecute the petitioner any further. 7. Hon’ble Supreme Court in the case of B.S. Joshi and others v. State of Haryana and another, (2003) 4 SCC 675 , has held that the High Court in exercise of its inherent powers can quash the criminal proceedings or FIR or complaint and Section 320 of Cr.P.C. is distinct and different from the power given to a criminal Court for compounding the offences. Thus, the Hon’ble Supreme Court has held that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, Section 320 would not be a bar to the exercise of power of quashing. The relevant paragraph 8 of the said judgment is extracted below : “8. It is, thus, clear that Madhu Limaye case (1977) 4 SCC 551 does not lay down any general proposition limiting power of quashing the criminal proceedings or FIR or complaint as vested in Section 482 of the Code or extraordinary power under Article 226 of the Constitution of India. We are, therefore, of the view that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, Section 320 would not be a bar to the exercise of power of quashing. It is, however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power.” The aforesaid judgment was followed in the case of Nikhil Merchant v. C.B.I. and another, (2008) 9 SCC 677 and Manoj Sharma v. State and others, (2008) 16 SCC 1 . However, in Gian Singh v. State of Punjab, (2010) 15 SCC 118 , a two Judge 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. 8. In view of the aforesaid reference, a three Judge Bench of the Supreme Court in the case of Gian Singh v. 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.” 9. The Supreme Court in the case of Narinder Singh and others v. 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.” 10. In view of above, this Court in exercise of powers under Article 226 of the Constitution of India can quash the proceedings of F.I.R. to secure the ends of justice and to prevent abuse of the process of any Court. The object of the criminal prosecution is to punish the guilty for committing the offence, but when the result of the prosecution is almost settled that it would result in acquittal inasmuch as the complainant himself would not support the prosecution case it would not serve the purpose for allowing the prosecution to go on, when it is crystal clear that the continuance of the criminal proceedings would be an exercise in futility and nothing but to waste the time of the Government machinery and operation and prejudice to the parties. Accordingly, we are of the considered opinion that no fruitful purpose would be served by allowing the prosecution, initiated by lodging the impugned First Information Report, to continue, rather it may cause oppression and prejudice also. 11. Accordingly, we are of the considered opinion that no fruitful purpose would be served by allowing the prosecution, initiated by lodging the impugned First Information Report, to continue, rather it may cause oppression and prejudice also. 11. Having considered the categorical statement made by complainant-informant-respondent No. 3-Vaibhav Singh and that in view of the compromise, he does not want to prosecute the petitioner any further, we are of the considered opinion that no useful purpose would be served in continuing the criminal proceedings in pursuance of the impugned First Information Report. Accordingly, we find it appropriate that, in the facts and circumstances of the case, the impugned First Information Report should be quashed as continuance of the proceedings thereof will be an exercise in futility for the reason that there are almost negligible chances of any conviction in view of the stand taken by the respondent No. 3-complainant-informant before us. 12. We, therefore, allow the writ petition and quash the impugned First Information Report dated 11.1.2018, lodged at Case Crime No. 031 of 2018, under Sections 346, 323, 308, 392, 506, 427 of I.P.C., Police Station-Gomti Nagar, District-Lucknow (Annexure-1 to the writ petition). Any further proceedings in pursuance of the impugned First Information Report shall also stand quashed.