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2020 DIGILAW 30 (HP)

Harish Kumar v. State of Himachal Pradesh

2020-01-02

SANDEEP SHARMA

body2020
JUDGMENT : Sandeep Sharma, J. 1. By way of instant petition filed under Section 482 Cr.P.C., prayer has been made to quash and set aside FIR No. 214, dated 18.9.2019 under Section 448 I.P.C. registered against the petitioner at Police Station, Shimla West, Shimla, Himachal Pradesh. 2. On 18.9.2019, respondent No. 4 lodged a complaint with the Police Station, West, Shimla, alleging therein that the petitioner, who is allegedly her tenant had misbehaved with her and had thrown out the cartons and grocery stuff from the store. It is alleged that respondent No. 4 had given said accommodation to the petitioner on goodwill but now he was claiming ownership and has put his lock on the room. On the basis of aforesaid complaint, FIR detailed herein above, came to be lodged against the petitioner for the commission of offence under Section 448 I.P.C. 3. At this stage, Section 448 I.P.C. may be reproduced herein below: "Whoever commits house-trespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both." 4. Now adverting to the petition, it may be noted that the petitioner has sought quashing of aforesaid FIR on the ground that the dispute is purely civil in nature, since petitioner being a tenant in the premises, cannot be said to be a trespasser. It is further stated in the petition that the FIR in question has been lodged just to pressurize the petitioner to vacate the premises. 5. Respondent No. 4, who is present in the court, has stated that there is a civil dispute going on inter se parties but that is not qua the premises in which petitioner has allegedly committed trespass, rather same is with regard to some flat and as such, by no stretch of imagination, it can be said that civil dispute is being turned into criminal one, as is alleged by the petitioner. She reiterated the contents of FIR in the court also. She reiterated the contents of FIR in the court also. Thus, from the conjoint reading of the contents of FIR, statement of respondent No. 4 and provisions of Section 448 I.P.C., at this stage, it cannot be said that no prima facie case is made out against the petitioner and thus, the same does not call for an interference at the hands of this Court, while exercising power under Section 482 Cr.P.C. 6. Hon'ble Apex Court in Narinder Singh and others v. State of Punjab and another (2014) 6 SCC 466 has specifically held that power under Section 482 Cr.P.C. is to be exercised sparingly and with great caution. Para Nos. 29 to 29.7 of the judgment are reproduced 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 under Section 482 Cr.P.C. the High Court is to form an opinion on either of the aforesaid two objectives. 29.3. Such a power is not 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 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 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 pre-dominantly 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 I.P.C. would fall in the category of heinous and serious offences and therefore is 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 I.P.C. 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 I.P.C. 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 I.P.C. 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/delegate 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. 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. 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 I.P.C. 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 I.P.C. 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". 7. In the case at hand, learned counsel for the petitioner was unable to prove that no prima facie case is made out against his client for the commission of offence punishable under Section 448 I.P.C. Respondent No. 4 is owner of the premises. She has stated in the complaint that the petitioner has trespassed into her property. As such, it would be in the interest of justice if the issue, whether there is criminal trespass committed by petitioner or not, left for the trial Court to decide, on the basis of evidence, to be adduced by the investigating agency. Otherwise also, till such investigation is going on, quashing of FIR in law is impermissible since, after investigation only, the petitioner can urge the point that prima facie no case is made out against him. 8. Consequently, in view of above, present petition is dismissed being devoid of any merit. All pending applications, if any, also stand disposed of.