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Meghalaya High Court · body

2019 DIGILAW 195 (MEG)

Anil Kumar Khanal v. State of Meghalaya

2019-10-09

AJAY KUMAR MITTAL

body2019
ORDER : Ajay Kumar Mittal, J. 1. This is an application under Section 482 of the Code of Criminal Procedure (Cr.P.C.) for quashing of criminal proceedings in G.R. Case No. 62(S) 2019 in Laitumkhrah P.S. Case No. 62(5) 2019 registered under Sections 498A/324 of the Indian Penal Code (IPC) pending in the Court of Judicial Magistrate First Class at Shillong. 2. Brief facts may be noticed. 3. According to the petitioner on 03.05.2019, the respondent No. 4-complainant lodged an FIR against him before the Officer-in-Charge, Laitumkhrah Police Station based on mistaken notion of fact. Thereafter, a case was registered as Laitumkhrah P.S. Case No. 62(5) 2019 under Sections 498A/324 IPC and the petitioner was arrested. According to the petitioner, the entire episode was the outcome of some differences between him and respondent No. 4 but after the intervention of relatives and friends, the respondent No. 4 out of free will on 16.05.2019 had filed an application for withdrawal of the FIR dated 03.05.2019 which was not accepted by the Officer-in-Charge, Laitumkhrah Police Station stating that the same shall have to be filed before the Court. In the month of May 2019, the petitioner had moved an application under Section 439 Cr.P.C. before the Court of District and Sessions Judge, Shillong for releasing him on bail which was allowed. 4. Petitioner claims that in spite of the fact that the respondent No. 4 had filed a letter for withdrawal of FIR dated 03.05.2019, the Investigating Officer charge-sheeted the case and forwarded to the Court of District and Sessions Judge, Shillong who on receipt of the same endorsed to the Judicial Magistrate First Class for trial which is still pending. Both the parties have now settled all the differences and issues between them and are presently living together, as such, no prejudice would be caused. 5. The matter has been amicably settled between them and also the respondent No. 4/complainant does not want to pursue with the matter any further as such continuance of G.R. Case No. 62 (S) 2019 in Laitumkhrah P.S. Case No. 62(5) 2019 under Sections 498A/324 IPC would not serve any purpose. Hence, the present petition for quashing the FIR under Section 498A/324 IPC dated 03.05.2019 and also G.R. Case No. 62 (S) 2019. 6. Hence, the present petition for quashing the FIR under Section 498A/324 IPC dated 03.05.2019 and also G.R. Case No. 62 (S) 2019. 6. Learned counsel for the parties state that the petitioner and respondent No. 4/complainant have filed their respective affidavits bringing on record the settlement arrived at between them. 7. In the case of Narinder Singh & Ors. v. State of Punjab & Anr., (2014) 6 SCC 466 , the Apex Court therein has laid down broad principles and guidelines for quashing of FIR on the basis of settlement between the parties. It has also laid down that quashment of the proceedings depends on facts and circumstances of each case. 8. The broad principles enumerated in Narinder Singh's case (supra) are as under:- "29. In view of the aforesaid discussion, 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: 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. 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. 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 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. 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. 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/delicate part of the body, nature of weapon 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. 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, timing 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. 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 to 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. 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." 9. In the present case, the respondent No. 4/complainant had lodged an FIR, the contents of which read thus:- "To, The Officer-in-Charge, Laitumkhrah Police Station, Shillong Subject: FIR Respected Sir, I would like to state that I was married to Shri Anil Khanal in the year 2004 since then he started torturing me physically and mentally but I have tolerated him for a long time. But again yesterday 2nd May, 2019 at around 9 pm he chased me and my children, from any place to go, so me and my children stay behind the toilet whole night. Again this morning around 6 am, my husband open the door and while we were trying to enter the house he pulled me and started accusing me that I was with other person and slept with him. I tried to tell him that it was not true but he will not believe. Then when I was about to prepare for breakfast he again pulled me and started shouting. I was with other person, I was trying to calm him down as other people was also present. Later, he took the pipe and started beating me up and while my son was trying to help me my husband beat him also. My husband also gagged me but my son pushed him and helped me. While we were trying to enter the house he hit me with a pipe and while blocking, it hit my hand due to which I sustained injury. Then I asked my neighbour to help but they did not come and help. And later we came to police for help. Therefore kindly look into the matter. Yours faithfully, Sushila Khanal W/o. Anil Khanal Address: Shillong College Compound, Laitumkhrah" 10. The nature of offence in the present case would not be termed to be of the category of heinous crime. And later we came to police for help. Therefore kindly look into the matter. Yours faithfully, Sushila Khanal W/o. Anil Khanal Address: Shillong College Compound, Laitumkhrah" 10. The nature of offence in the present case would not be termed to be of the category of heinous crime. Moreover, as recorded in the affidavit of the parties, the respondent No. 4/complainant does not want to pursue with the case any further. For ready reference, the affidavit of the parties read thus:- "Affidavit of the petitioner I, Shri Anil Kumar Khanal, son of late Balaram Khanal, aged about 45 years, resident of Shillong College Compound, Laitumkhrah, Shillong, East Khasi Hills District, Meghalaya, do hereby solemnly affirm and declare on oath as follows:- 1. That I am the citizen of India and a resident of Shillong College Compound, Laitumkhrah, Shillong, East Khasi Hills District, Meghalaya. 2. That I am the petitioner in the instant case and as such I am aware of the facts and circumstances of the instant case. 3. That owing to a minor issue and differences between me and the respondent No. 4 who is my wife, an FIR was lodged on 03.05.2019 before the Laitumkhrah Police Station, Shillong and a Police Case was registered as Laitumkhrah Police Station Case No. 62(5) 2019 which subsequently was charge-sheeted and registered as G.R. Case No. 62(S) 2019 and the same is pending before the Court of Smti. B. Kharbithei, Judicial Magistrate First Class, Shillong. 4. That the entire issue involved in the instant case is out of matrimonial differences and is of personal nature, which by interference of the family elders have been resolved amicably. The petitioner and the complainant/respondent No. 4 are living together as husband and wife happily. As such the instant criminal petition is being filed for quashing of the criminal proceedings registered as G.R. Case No. 62(S) 2019, pending before the Court of Smti. B. Kharbithei, Judicial Magistrate First Class, Shillong. 5. That the statements made in paras 1 are true to the best of my knowledge, belief and information and those made in paras 2, 3 being matters of record which I believe to be true and the rest are my humble submission before this Hon'ble Court. And I sign this Affidavit here at Shillong, on the 3rd day of September, 2019. Affidavit of the respondent No. 4/complainant I, Smti. And I sign this Affidavit here at Shillong, on the 3rd day of September, 2019. Affidavit of the respondent No. 4/complainant I, Smti. Sushila Khanal, wife of Shri Anil Kumar Khanal, aged about 36 years, resident of Shillong College Compound, Laitumkhrah, Shillong, East Khasi Hills District, Meghalaya do hereby solemnly affirm and declare on oath as follows:- 1. That I am the citizen of India and a resident of Shillong College Compound, Laitumkhrah, Shillong, East Khasi Hills District, Meghalaya. 2. That I am the complainant and have been arrayed as respondent No. 4 in the instant case and as such I am aware of the facts and circumstances of the instant case. 3. That owing to a minor issue and differences between me and the petitioner who is my husband, on 03.05.2019 I had lodged an FIR before the Laitumkhrah Police Station, Shillong and a Police Case was registered as Laitumkhrah Police Station Case No. 62 (5) 2019 which subsequently was charge-sheeted and registered as G.R. Case No. 62 (S) 2019 and pending before the Court of Smti. B Kharbithei, Judicial Magistrate First Class, Shillong. 4. That thereafter having realized that the entire episode was outbreak of the heat of the moment, on a minor family issue which can be resolved within the family, I out of my free will had filed an application for withdrawal of the FIR dated 03.05.2019, which on being refused to accept by the officer-in-charge Laitumkhrah Police Station Shillong, enclosing the same I moved a bail application before the Court of the Hon'ble District and Session Judge, Shillong, which was allowed. 5. That the entire issue involved in the instant case is out of matrimonial differences and is of personal nature, which by interference of the family elders have been resolved amicably and as on date I am staying with the petitioner happily without any issue. As such for the best interest of the family instant Criminal Petition for quashing of the criminal proceedings i.e. G.R. Case No. 62(S) 2019, pending before the Court of Smti. B. Kharbithei, Judicial Magistrate First Class Shillong, may kindly be allowed. 6. That the statements made in paras 1, 2 are true to the best of my knowledge, belief and information and those made in paras 3, 4 being matters of record which I believe to be true and the rest are my humble submission before this Hon'ble Court. B. Kharbithei, Judicial Magistrate First Class Shillong, may kindly be allowed. 6. That the statements made in paras 1, 2 are true to the best of my knowledge, belief and information and those made in paras 3, 4 being matters of record which I believe to be true and the rest are my humble submission before this Hon'ble Court. And I sign this Affidavit here at Shillong, on this the 3rd day of September, 2019." 11. In the analysis and keeping in view of the guidelines as laid down by the Apex Court in Narinder Singh's case (supra) and examining the facts of the present case, I am of the opinion that it is fit case for quashing the FIR. Accordingly, G.R. Case 62 (S) 2019 in Laitumkhrah P.S. Case 62(5) 2019 under Sections 498A/324 IPC registered on 03.05.2019 by Laitumkhrah Police Station, Shillong and all consequential proceedings are hereby quashed. 12. Criminal petition stands disposed of as above.