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2018 DIGILAW 796 (ORI)

Amarendra Bihari v. State of Orissa

2018-11-12

S.K.SAHOO

body2018
JUDGMENT S.K. SAHOO, J. - In view of the cessation of the Court work of the High Court Bar Association, neither the learned counsel for the petitioners nor the learned counsels for the opp. Parties are present in Court. In this application under Section 482 of Cr.P.C., the petitioners Amarendra Bihari and Kanhu Charan Mohapatra knocked at the doors of this Court challenging the order dated 09.01.2014 of the learned S.D.J.M., Kendrapara passed in G.R. Case No.1035 of 2013 in taking cognizance of offences punishable under Sections 420, 467, 468, 471, 294, 506 read with Section 120-B of the Indian Penal Code. The said case arises out of Kendrapara P.S.Case No.98 of 2013. Perused the F.I.R. dated 16.08.2013 lodged by the opposite party No.2 Smt. Menaka Sahoo. As per the F.I.R., the accused persons alleged to have sold some of the land in which the father of the informant had share during his life time without the knowledge of the informant by creating forged documents. It is averred in the CRLMC petition that the petitioners and the opposite party No.2 Smt. Menaka Sahoo belong to one family and residing under the same roof and they have amicably settled the dispute among them with the intervention of their relatives and well-wishers and that the disputed land in question has already been transferred in the name of opposite party No.2 and she is not interested to proceed with the case as the petitioner no.1 is the nephew of opposite party no.2. The opposite party no.2 has entered appearance in this case through her counsel and filed a supporting affidavit indicating, inter alia, that due to intervention of the family members, relatives and well-wishers, the matter has been amicably settled between the parties and she is not interested to proceed against the petitioners. To ascertain the truthfulness of the averments taken in the affidavit, Xerox copy of the CRLMC petition along with copy of the affidavit filed by opposite party No.2 were sent to the Chairman, District Legal Services Authority, Kendrapara as per the order dated 01.10.2018 who on enquiry has submitted the report dated 03.11.2018 wherein it is indicated that he examined the opposite party no.2 and her husband and came to know that the matter has been settled between the parties and it was further ascertained from the opposite party no.2. along with her husband that they do not want to proceed further with the case. The report further indicates that the averments made in the affidavit of opposite party no.2 are true. The statements of the opposite party No.2 and her husband recorded in separate sheets by the Chairman, District Legal Services Authority, Kendrapara have also been forwarded to this Court along with the report. The seminal issues that emanate for consideration in this application is whether in view of the compromise between the parties, the impugned order of taking cognizance and the entire criminal proceeding which consists of non-compoundable offences can be quashed in exercise of inherent power of this Court under Section 482 of Cr.P.C. inspite of the provision under Section 329 (9) of Cr.P.C. In case of Gian Singh Vrs. State of Punjab and Another reported in (2012) 53 Orissa Criminal Reports (SC) 891, the Hon’ble Supreme Court held as follows : “57. The position that emerges from the above discussion can be summarized thus : the power of the High Court in quashing a criminal proceeding or F.I.R. 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. Xx xx xx xx But the criminal cases having overwhelmingly and pre-dominatingly civil flavor 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, 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 the 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 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.” In case of Gold Quest International Private Limited Vrs. State of Tamil Nadu reported in (2014) 59 Orissa Criminal Reports (SC) 593, the Hon’ble Supreme Court held as follows : “8. In view of the principle laid down by this Court in the aforesaid cases, we are of the view in the disputes which are substantially matrimonial to nature, of the civil property disputes with criminal facets, if the parties have entered into settlement, and it has become clear that there are no chances of conviction, there is no illegality in quashing the proceedings under Section 482 Cr.P.C. read with Article 226 of the Constitution.” In case of Narinder Singh and Ors. v. State of Punjab reported in (2014) 58 Orissa Criminal Cases (SC) 202, the Hon’ble Supreme Court held as follows : “31. v. State of Punjab reported in (2014) 58 Orissa Criminal Cases (SC) 202, the Hon’ble Supreme Court held as follows : “31. In view of the aforesaid discussions, 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: (i) 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. (ii) 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 of High Court is to form an opinion on either of the aforesaid two objective. Xx xx xx xx (iv) On the other hand, 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. (v) 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.” In case of Parbatbhai Aahir Vrs. State of Gujarat reported in (2017) 68 Orissa Criminal Reports (SC) 982, the Hon’ble Supreme Court held as follows : “15. The broad principles which emerge from the precedents on the subject, may be summarized 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 broad principles which emerge from the precedents on the subject, may be summarized 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 recognizes 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 be 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.” In view of the ratio laid down by the Hon’ble Supreme Court in the aforesaid decisions and since the parties are related to each other and case arises out of civil dispute between the parties which has already been settled amicably and the opposite party no.2 is no more interested to pursue the case, in my humble view no fruitful purpose would be served in allowing the proceeding to continue and it would be a sheer wastage of valuable time of the Court. I am further of the view that possibility of conviction is remote and bleak and continuation of criminal case would tantamount to abuse of process of law. Therefore, in the facts and circumstances of the case, invoking my inherent powers under Section 482 of Cr.P.C. and to prevent the abuse of process and in the interest of justice, I am inclined to accept the prayer made by the petitioners in this application and direct that the impugned order dated 09.01.2014 passed by the learned S.D.J.M., Kendrapara in G.R. Case No.1035 of 2013 and the entire criminal proceeding of the said case stands quashed. Accordingly, the CRLMC application is allowed. CRLMC allowed.