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2021 DIGILAW 319 (JK)

Savita Bakshi Ghaiand v. State of J&K

2021-07-09

RAJNESH OSWAL

body2021
Order 1. In this petition, initially the petitioner had filed the petition for quashing the order dated 24.11.2018 passed by the learned Chief Judicial Magistrate, Jammu whereby a direction was issued to the Station House Officer, Trikuta Nagar to register F.I.R under relevant sections of RPC against the petitioners in a complaint/application filed by the private respondent No. 3 under section 156 (3) of Cr.P.C.and also for quashing of the said application filed by the respondent No. 3. Later on, the petitioners have also filed another petition for quashing F.I.R No. 12/2019 under section 447, 436, 427 and 34 RPC dated 12.02.2019 registeredby the respondent No. 1pursuant to the order that was impugned in the earlier petition. 2. During the pendency of the present petition, an application bearing CrlM No. 1484/2020 was filed in CRMC No. 79/2019 by the respondent No. 2 and 3 for placing on record the memorandum of settlement dated 30.09.2019 which was allowed by this Court on 23.11.2020. In the said application, it is stated by the respondent Nos. 2 and 3 that during the pendency of the proceedings, the parties have entered into a compromise and the applicants-respondent Nos. 2 and 3 donot want to pursue the criminal proceedings arising out of F.I.R No. 12/2019 dated 12.02.2019 registered at Police Station, Bahu Fort, Jammu. 3. Mr. Vivek Sharma, learned counsel for the petitioners submitted that as the respondent Nos. 2 and 3 have entered into a compromise with the petitioners so the F.I.R is required to be quashed. 4. Mr. Gagan Basotra, learned senior counselrepresenting respondent Nos. 2 and 3 submitted that the parties have entered into a compromise regarding which the respondent Nos. 2 and 3 have already placed on record the memorandum of settlement. 5. Mr. Aseem Sawhney, learned AAG submits that he is not averse to the quashing of the F.I.R in the event the parties have settled the dispute. 6. 2 and 3 submitted that the parties have entered into a compromise regarding which the respondent Nos. 2 and 3 have already placed on record the memorandum of settlement. 5. Mr. Aseem Sawhney, learned AAG submits that he is not averse to the quashing of the F.I.R in the event the parties have settled the dispute. 6. Perusal of the memorandum of settlement reveals that the respondent No. 2 herein,who is putting up at Canada through his attorney holder,has entered into a compromise with petitioner No. 2, who is the husband of petitioner No. 1 and father of petitioner No. 3 and as per the terms of the said settlement, the respondent No. 2 and his wife have agreed to withdraw their civil cases filed by them before the civil courts Jammu and it is also stated that the respondent No. 2 and his wife shall withdraw the criminal complaint filed by them through their attorney holder pursuant to which F.I.R No. 12/2019 dated 12.02.2019 has been registered and regarding which the matter is pending before this Court. In the said application, it is also stated by the respondent Nos. 2 and 3 that they do not want to pursue the present criminal proceedings. 7. Perusal of the F.I.R reveals that predominantlythe dispute between the petitioners and the respondent Nos. 2 and 3 was with regard to the property owned by the petitioner No. 2 that was granted on lease to the firm of the respondent No. 2. The F.I.R has been registered for commission of offences under section 447, 436, 427 and 34 RPC. Offences under Sections 447 and 427 RPC are compoundable whereas offence under section 436 is not compoundable.As the dispute between the contesting parties is predominantly civil in nature and the parties have settled their dispute as such, no fruitful purpose shall be served in case the criminal proceedings arising out of F.I.R are allowed to be continued. Further there is nothing on record to demonstrate that petitioners have past criminal antecedents. 8. In State of M.P. v. Laxmi Narayan, (2019) 5 SCC 688 reported in (2019) 2 SCC (Cri) 706, Apex Court has held: ’14. Further there is nothing on record to demonstrate that petitioners have past criminal antecedents. 8. In State of M.P. v. Laxmi Narayan, (2019) 5 SCC 688 reported in (2019) 2 SCC (Cri) 706, Apex Court has held: ’14. Now so far as the conflict between the decisions of this Court inNarinder Singh [Narinder Singh v. State of Punjab, (2014) 6 SCC 466 : (2014) 3 SCC (Cri) 54] and Shambhu Kewat [State of Rajasthan v. Shambhu Kewat, (2014) 4 SCC 149 : (2014) 4 SCC (Cri) 781] is concerned, in Shambhu Kewat [State of Rajasthan v. Shambhu Kewat, (2014) 4 SCC 149 : (2014) 4 SCC (Cri) 781], this Court has notedthe difference between the power of compounding of offences conferred on a court under Section 320 CrPC and the powers conferred under Section 482 CrPC for quashing of criminal proceedings by the High Court. In the said decision, this Court further observed that in compounding the offences, the power of a criminal court is circumscribed by the provisions contained in Section 320 CrPC and the court is guided solely and squarely thereby, while, on the other hand, the formation of opinion by the High Court for quashing criminal proceedings or criminal complaint under Section 482 CrPC is guided by the material on record as to whether ends of justice would justify such exercise of power, although ultimate consequence may be acquittal or dismissal of indictment. However, in the subsequent decision in Narinder Singh [Narinder Singh v. State of Punjab, (2014) 6 SCC 466 : (2014) 3 SCC (Cri) 54], the very Bench ultimately concluded in para 29 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. 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) toprevent 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. 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 quashingthe 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. 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 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. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter 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 beenfiled. 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. 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 thetrial 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 view of the fact that the parties have amicably settled their dispute, the F.I.R bearing No. 12.2019 registered with Police Station Bahu Fort, Jammu is quashed. 10. Both petitions are disposed of.