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2018 DIGILAW 431 (UTT)

MOHAMMAD ARIF KHAN v. STATE OF UTTARAKHAND

2018-08-28

SHARAD KUMAR SHARMA

body2018
JUDGMENT Hon'ble Sharad Kumar Sharma, J. This is a writ petition, whereby, the petitioner has prayed for quashing and compounding of Case Crime No. 41 of 2018 registered as FIR No. 222 of 2018, under Sections 452, 504, 506 of IPC, R.O.P. Basforan P.S. Kashipur, (Now at Kelakhera), District Udham Singh Nagar (Annexure 3 to the writ petition). The present petition is filed by the petitioner for following reliefs:- “I. Issue a writ, order or direction in the nature certiorari quashing and compound the Case Crime No. 41/18, FIR No. 222 of 2018, under Sections 452, 504, 506 of IPC, R.O.P. Basforan, P.S. Kashipur (now at Kelakhera), District Udham Singh Nagar (Annexure No. 3 to the writ petition), on the basis of the compromise dated 07.08.2018 made between the parties (Annexure No.4 to the writ petition). II. Issue a suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case. III. Award the cost of the petition." 2. The composition of the offence has been sought on the basis of Compounding Application No. 13123 of 2018, jointly filed by both the parties, under their signature and signature of their counsel, which is based on the ground of settlement entered into between the parties on 07.08.2018, which is on record (Annexure 4 to the writ petition). The offence as levelled against the petitioner is under Sections 452, 504 and 506 of IPC registered as Case Crime No. 41 of 2018, FIR No. 222 of 2018 at Basforan, P.S. Kashipur (now at Kelakhera), District Udham Singh Nagar. 3. There is an objection raised by the Government Advocate on the ground that the said offences are not compoundable within the purview of Section 320 of Criminal Procedure Code, but looking to the settlement arrived at between the parties on 07.08.2018, and taking into consideration the ratio as laid down by 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. 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. 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. 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. Learned counsel for the parties drew the attention of this Court towards the ruling of Gian Singh Vs. State of Punjab and another reported in (2013) 1 SCC (Cri) 160, in which Hon'ble Supreme Court observed as below : “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. 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. In this category of cases, High Court may quash criminal proceedings 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 question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding." 5. 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. 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. 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. 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 observed 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. 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'. 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." 6. In view of the fact that the parties have settled their disputes on 07.08.2018, it would be a futile exercise to lead parties to undergo the trial, as such, the offence as narrated in the FIR deserves to be compounded. 7. Accordingly, the compounding application filed with the writ petition is hereby allowed. The prayer as sought for in the writ petition for quashing the Case Crime No. 41 of 2018 arising out of Case Crime No. 41 of 2018 registered as FIR No. 222 of 2018, under Sections 452, 504, 506 of IPC, R.O.P. Basforan P.S. Kashipur (Now at Kelakhera), District Udham Singh Nagar, would stand quashed and the criminal writ petition would stand allowed. 8. Accordingly, Compounding Application too would stand allowed. 9. All pending applications stand disposed of.