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2018 DIGILAW 429 (UTT)

MAHENDRA SINGH v. STATE OF UTTARAKHAND

2018-08-21

SHARAD KUMAR SHARMA

body2018
JUDGMENT Sharad Sharma, J. (Oral) Before venturing to consider the Compounding Application annexed with this Writ Petition its unavoidable to consider basic facts of the case. The Writ Petition prayer basically was to quash FIR No. 0148/2018 said to have been lodged under Section 420 at Kotwali Jaspur, Tehsil Jaspur, District Udham Singh Nagar, which was lodged by respondent no. 3. The dispute between parties arose from an agreement for sale dated 28.12.2013 executed by the petitioner in favour of respondent no. 3, the complainant of FIR. The allegation was that due to non identifiability of property agreed to be sold and due to wrong description of the boundaries dispute arose relating to lodging of the FIR by respondent no. 3 on 10.06.2018. Later on the parties have entered into compromise which finds place on record i.e. dated 05.06.2018 (Annexure 4 to the Writ Petition). Both the parties who appear in person admit that compromise has been entered to settle the dispute. It is also pleaded that the said compromise was jointly given to the Investigating Officer on 10.06.2018 for submission of final report. 2. This Writ Petition is listed along with Application for Compounding (CLMA No. 127562018) invoking Section 320 of Cr.P.C. The offence, which is alleged to have been committed, is under Section 420 of IPC and an FIR being FIR No. 0148/2018 has been lodged at 10.06.2018 before Kotwali Jaspur, Tehsil Jaspur, District Udham Singh Nagar. The parties have appeared in person before this Court. They have identified by their respective counsels. They submit that they have settled their scores outside the Court an agreement dated 05.06.2018 is on record and there is no dispute as such now subsisting between them as alleged in the FIR surviving against them. Hence, they have jointly prayed for composition of the offence. 3. The Hon'ble Apex Court in the judgment ‘Nikhil Merchant vs. Central Bureau of Investigation and Another' reported in 2008(9) SCC 677 , has held as under: “8. Apart from the said decision, reliance was also placed on another decision of this Court in the case of B.S. Joshi and Ors. Vs. 3. The Hon'ble Apex Court in the judgment ‘Nikhil Merchant vs. Central Bureau of Investigation and Another' reported in 2008(9) SCC 677 , has held as under: “8. Apart from the said decision, reliance was also placed on another decision of this Court in the case of B.S. Joshi and Ors. Vs. State of Haryana & Anr., [ 2003(4) SCC 675 ] wherein while dealing with the proceedings under Sections 498-A and 406 Indian Penal Code involving matrimonial disputes and offences, this Court held that even though the provisions of Section 320 of the Code of Criminal Procedure would not apply to such offences, which are not compoundable it did not limit or affect the powers under Section 482 and the powers conferred on the High Courts and the Supreme Court under Articles 226 and 136 of the Constitution of India. Referring to the decision of this Court in State of Haryana vs Bhajan Lal, [1992 Suppl. (1) SCC 335] this Court observed that the categories indicated in the said case which warranted exercise of power under Section 482 CrPC were only illustrative and not exhaustive. This Court ultimately held that the High Court in exercise of its inherent powers can quash criminal proceedings or a FIR or complaint and Section 320 CrPC does not limit or affect the power of the High Court under Section 482 of the Code. 9. After considering the said decision in the light of the submissions made on behalf of the respective parties, the High Court took the view that in the Duncans Agro case (supra) this Court was considering the situation involving Section 420 IPC which was compoundable under Section 320(2) CrPC, while in the instant case, the charge sheet was also under Sections 467, 468, 471-A IPC along with the provisions of the Prevention of Corruption Act, which were non- compoundable. The High Court, therefore, held that neither of the said two cases would have application to the facts of this case and rejected the appellant's prayer for discharge from the criminal cases. 29. Despite the ingredients and the factual content of an offence of cheating punishable under Section 420 IPC, the same has been made compoundable under Sub-section (2) of Section 320 Cr.P.C. with the leave of the Court. 29. Despite the ingredients and the factual content of an offence of cheating punishable under Section 420 IPC, the same has been made compoundable under Sub-section (2) of Section 320 Cr.P.C. with the leave of the Court. Of course, forgery has not been included as one of the compoundable offences, but it is in such cases that the principle enunciated in B.S. Joshi's case (supra) becomes relevant. 31. On an overall view of the facts as indicated hereinabove and keeping in mind the decision of this Court in B.S. Joshi's case (supra) and the compromise arrived at between the Company and the Bank as also clause 11 of the consent terms filed in the suit filed by the Bank, we are satisfied that this is a fit case where technicality should not be allowed to stand in the way in the quashing of the criminal proceedings, since, in our view, the continuance of the same after the compromise arrived at between the parties would be a futile exercise." 4. The judgment of Nikhil Merchant (supra) strongly relies upon the judgment ‘B.S. Joshi & Others vs. State of Haryana & Another' reported in (2003) 4 Supreme Court Cases 675. Same issue was raised before the Hon'ble Apex Court and the Hon'ble Apex Court in paragraph nos. 6, 8, 10, 11 & 15 held as under: “6. In Pepsi Food Ltd. & Anr. v. Special Judicial Magistrate & Ors. [ (1998) 5 SCC 749 ], this Court with reference to Bhajan Lal's case observed that the guidelines laid therein as to where the court will exercise jurisdiction under Section 482 of the Code could not be inflexible or laying rigid formulae to be followed by the courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. It is well settled that these powers have no limits. Of course, where there is more power, it becomes necessary to exercise utmost care and caution while invoking such powers. 8. It is, thus, clear that Madhu Limaye's case 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 extra ordinary power under Article 226 of the Constitution of India. 8. It is, thus, clear that Madhu Limaye's case 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 extra ordinary 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. 10. In State of Karnataka v. L. Muniswamy & Ors. [ (1977) 2 SCC 699 ], considering the scope of inherent power of quashing under Section 482, this Court held that in the exercise of this wholesome power, the High Court is entitled to quash proceedings if it comes to the conclusion that ends of justice so require. It was ob served that in a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice and that the ends of justice are higher than the ends of mere law though justice had got to be administered according to laws made by the legislature. This Court said that the compelling necessity for making these observations is that without a proper realization of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction. On facts, it was also noticed that there was no reasonable likelihood of the accused being convicted of the offence. What would happen to the trial of the case where the wife does not support the imputations made in the FIR of the type in question. As earlier noticed, now she has filed an affidavit that the FIR was registered at her instance due to temperamental differences and implied imputations. There may be many reasons for not supporting the imputations. What would happen to the trial of the case where the wife does not support the imputations made in the FIR of the type in question. As earlier noticed, now she has filed an affidavit that the FIR was registered at her instance due to temperamental differences and implied imputations. There may be many reasons for not supporting the imputations. It may be either for the reason that she has resolved disputes with her husband and his other family members and as a result thereof she has again started living with her husband with whom she earlier had differences or she has willingly parted company and is living happily on her own or has married someone else on earlier marriage having been dissolved by divorce on consent of parties or fails to support the prosecution on some other similar grounds. In such eventuality, there would almost be no chance of conviction. Would it then be proper to decline to exercise power of quashing on the ground that it would be permitting the parties to compound non-compoundable offences. Answer clearly has to be in ‘negative'. It would, however, be a different matter if the High Court on facts declines the prayer for quashing for any valid reasons including lack of bona fides. 11. In Madhavrao Jiwajirao Scindia & Ors. v. Sambhajirao Chandrojirao Angre & Ors. [ (1988) 1 SCC 692 ], it was held that while exercising inherent power of quashing under Section 482, it is for the High Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. Where, in the opinion of the Court, chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may, while taking into consideration the special facts of a case, also quash the proceedings. 15. In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code." 5. 15. In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code." 5. The composition application would stand allowed and, as a result thereto the FIR No. 0148/2018 under Section 420 of IPC dated 10.06.2018 lodged at Kotwali Jaspur, Tehsil Jaspur, District Udham Singh Nagar would also stand quashed. 6. Accordingly, Compounding Application stands allowed. Prayer as made therein is granted.