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2021 DIGILAW 644 (GAU)

Durik Lollen S/o Nyodu Lollen of Bogdo near Doi's Ado v. State Of A. P.

2021-11-01

ROBIN PHUKAN

body2021
JUDGMENT : This application, under section 482 of the Cr.P.C., is jointly preferred by six petitioners, three accused persons and three victims, for quashing and setting aside the Charge-Sheet No. 81/2013, dated 25.01.2013, arising out of the Aalo P.S. Case/FIR No.29/2013, dated 27.02.2013, registered under Sections 458/459/34 of the Indian Penal Code, pending before the court of ld. Sessions Judge, Aalo. 2. The factual background, necessary for proper appreciation of the dispute in hand, is adumbrated hereinbelow:- “On 26.02.2013, one Pebom Gara of Aalo was celebrating his daughter’s birthday in his house. One Tapik Jida attended the said birthday party as guest, on being invited by Pebom Gara. While the party was going on, one Durik Lollen, Kento Bagra, Ashok Das @ Munu and Kenli Ngomdir arrived at the birthday premises as uninvited guest. They were not welcomed by the host and as such, they created nuisance outside the venue. The victim and some other persons opposed their entry, which resulted in confrontation between them and some of them including the accused persons, sustained injuries on their person. On receipt of one FIR, in connection with the incident, from Smti. Yagid Jida, the mother of the victim Tapik Jida, on 27.02.2013, the Officer-in-Charge, Aalo Police Station registered a case, being Aalo P.S. Case No.29/2013, under Sections 458/459/34 of the Indian Penal Code and endorsed the same to Sub-Inspector -T. Tasso to investigate the same. The I.O. then visited the place of occurrence and rough sketch map was drawn and examined witnesses and got the victim examined by the Doctor and also arrested the accused persons and forwarded them to the Court. Then on completion of the investigation, the I.O. laid the Charge-Sheet against the accused persons, namely, Durik Lollen, Kento Bagra, Ashok Das @ Munu and Kenli Ngomdir to stand trial in the Court under Section 458/459/34 of the Indian Penal Code. The accused person entered appearance before the Court of learned Chief Judicial Magistrate, Aalo and being the offences triable exclusively by the Court of Sessions; the learned CJM committed the case to the learned Sessions Court, Aalo and accused Kenli Ngomdir, being a juvenile, forwarded to Juvenile Board. The accused person entered appearance before the Court of learned Chief Judicial Magistrate, Aalo and being the offences triable exclusively by the Court of Sessions; the learned CJM committed the case to the learned Sessions Court, Aalo and accused Kenli Ngomdir, being a juvenile, forwarded to Juvenile Board. Accordingly, the accused persons, namely, Durik Lollen, Kento Bagra, Ashok Das @ Munu entered appearance before the court of learned Sessions Judge, Aalo and the learned Sessions Judge, Aalo then framed Charges under section 458/459/34 IPC against them and on being read and explained over they pleaded to be not guilty to the same. During trial, the learned Sessions Judge, has examined altogether six witnesses out of seven witnesses cited by the I.O. in the Charge Sheet. In the meantime, the accused persons and the victims had amicably settled the matter and executed one Settlement Deed -Annexure-8, and on the basis of the Settlement Deed, both the parties approached this Court for quashing the Charge-Sheet and the FIR and the subsequent proceeding pending before the learned Sessions Judge, Aalo being the offences are not compoundable under section 320 Cr.P.C. 3. Heard Mr. J. Jini, the learned counsel for the petitioner and also heard Ms. T. Jini, the learned Addl. PP for the State of Arunachal Pradesh. 4. Mr. Jini, the learned counsel for the petitioner submits that out of misunderstanding, the case has been filed by the complainant and now they have realised their mistake and settled the dispute amicably and entered into an agreement -Annexure-8, and since the offences are not compoundable under Section 320 of the Cr.P.C., they have approached this Court under Section 482 Cr.P.C. for exercising the inherent jurisdiction of this Court to q1uash the Charge Sheet and subsequent proceeding. Therefore, Mr. J. Jini has contended to allow this petition and to quash the Charge-Sheet No. 81/2013, dated 25.01.2013, arising out of the Aalo P.S. Case/FIR No.29/2013, dated 27.02.2013, registered under Sections 458/459/34 of the Indian Penal Code, pending before the court of ld. Sessions Court, Aalo. 5. On the other hand, Ms. T. Jini, the learned Addl. PP submits that she has objection in allowing the petition. It is also submitted that the offences u/s 458/459 IPC are serious in nature and the punishment prescribed for the same are more than 10 years and life imprisonment, respectively and the offences are also against the society. 5. On the other hand, Ms. T. Jini, the learned Addl. PP submits that she has objection in allowing the petition. It is also submitted that the offences u/s 458/459 IPC are serious in nature and the punishment prescribed for the same are more than 10 years and life imprisonment, respectively and the offences are also against the society. Further, it is submitted that the stage for quashing the proceeding is already over and it is pending in the last stage of trial and therefore, the state has objection in allowing this petition. Ms. Jini, also referred one case law i.e. The State of Madhya Pradesh-vs-Laxmi Narayan: (2019) 5 SCC 688 , to contend that the power under Section 482 Cr.P.C. can be exercised to quash the criminal proceedings for the non-compoundable offences under Section 320 of the Code, and it can be exercised when the disputes are overwhelmingly and predominantly of civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationships or family disputes and when the parties have resolved the entire dispute amongst themselves. Such power cannot be exercised in those prosecutions, which involved 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. Since the offences herein this case are serious in nature and also against the society, the same cannot be quashed. 6. In his reply to the submission of the learned Addl. PP, Mr. J. Jini, the learned counsel for the petitioners submits that in view of the ration laid down by the Hon’ble Supreme Court in the case of the State of Madhya Pradesh-vs.-Laxmi Narayan (Supra), this Court has the jurisdiction to peruse the evidence of the witnesses, who have already been examined by the ld. trial Court and to see whether the ingredients of the offences under which they have been charged with, had been made out or not. It is further submitted that this Court has the power 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., and referring to the evidence so recorded by the learned Court below Mr. Jini submits that the injuries sustained by the victim/petitioners are simple in nature either caused by blunt or sharp object. Jini submits that the injuries sustained by the victim/petitioners are simple in nature either caused by blunt or sharp object. It is further submitted that as the petitioners have already settled the matter amicably and no longer willing to pursue the same, and as no ingredients of the charges are made out from the evidence of the prosecution witnesses, Mr. Jini contended allow this petition. 7. Having heard the submission of arguments of both sides, I have gone through the petition and the documents placed on record and also through the record of ld. Court below carefully. It appears that on the basis of FIR receipt from Smti. Yagid Jida, the mother of the victim Tapik Jida, on 27.02.2013, the Officer-in-Charge, Aalo Police Station registered the case being Aalo P.S. Case No.29/2013, under Sections 458/459/34 IPC, against the accused persons, namely, Durik Lollen, Kento Bagra, Ashok Das @ Munu and Kenli Ngomdir i.e. petitioner No.1, 2 and 3. Being juvenile, accused Kenli Ngomdir’s case has been separated and sent to the Juvenile Justice Board, and therefore, he is not the petitioner before this court. The main allegation against the petitioners No.1, 2 and 3 is that on 26.02.2013, while birth day party of daughter of one Pebom Gara was being celebrated in his house, then they arrived at the birthday premises as uninvited guest and they have created nuisance, then one Tapik Jida, and others opposed their entry, that resulted in confrontation between both the sides and some of the persons, including the accused sustained injury in the same. 8. Further it appears that the investigation culminated in submission of charge sheet against the three petitioners, along with Kenli Ngomdir under section 458/459/34 IPC. Further it appears that the on commitment of the by the ld. Chief Judicial Magistrate the petitioner No.1, 2 and 3 entered appearance before the ld. Sessions Judge, Aalo and the ld. Sessions Judge, Aalo has framed charge against them under section 458/459/34 IPC, and they pleaded not guilty to the charges. Further it appears that after framing the charges the ld. Court below has examined almost altogether witnesses, including the Doctor and the Investigating Officer. There remains to examine one witness only. Sessions Judge, Aalo and the ld. Sessions Judge, Aalo has framed charge against them under section 458/459/34 IPC, and they pleaded not guilty to the charges. Further it appears that after framing the charges the ld. Court below has examined almost altogether witnesses, including the Doctor and the Investigating Officer. There remains to examine one witness only. In view of the observation of Hon’ble Supreme Court in the State of Madhya Pradesh-vs.-Laxmi Narayan (Supra), in paragraph No. 29, this court is entitled to peruse the evidence so recorded by the ld. Court below to see as to whether the offences, under which the petitioners No. 1, 2, and 3 have been charged, are made out or not. 9. A cursory perusal of the evidence of the Doctor and the Medical Report of the victims submitted by him, reveals that the injuries suffered by the injured Tapik Jida and others are simple in nature and caused by either sharp or blunt object. The injuries were also not on vital/delicate part of their bodies. Further, it appears that while causing injuries to the victims, after entering in to the house/compound of Pebom Gara, the accused petitioners have never taken any precaution to conceal themselves from some persons who have right to exclude them, while committing the house trespass. Thus, the alleged trespass is an ordinary house trespass as defined in section 442 IPC, instead of lurking house trespass as defined in section 443 IPC. Thus, apparently, the ingredients of the charges under section 458/459 IPC have not been established here in this case. Being so, the embargo, as put in by the Hon’ble Supreme Court in the case of the State of Madhya Pradesh-vs.-Laxmi Narayan (Supra), and as pointed out the ld. Addl. P.P. will not be applicable in this case. Mr. Jini the ld. Counsel for the petitioner has rightly pointed this out at the time of hearing. I find substance in the same. 10. It also appears that while the trial was going on in the court of ld. Sessions Judge, Aalo, the parties have realised their mistake and decided to settle the matter amicably amongst them and entered into a settlement deed -Annexure-8. But, being the offences are non-compoundable under section 320 Cr.P.C. they approached this court for quashing the charge sheet and the proceeding pending before the ld. Sessions Judge, Aalo, the parties have realised their mistake and decided to settle the matter amicably amongst them and entered into a settlement deed -Annexure-8. But, being the offences are non-compoundable under section 320 Cr.P.C. they approached this court for quashing the charge sheet and the proceeding pending before the ld. Sessions Judge, Aalo on the basis of the said settlement deed. The petitioners and the victims are not willing to pursue the matter further in the ld. Court below. They all have signed in the settlement deed and also in the petition. 11. In the case of the State of Madhya Pradesh-vs.-Laxmi Narayan (Supra), Hon’ble Supreme Court has held that:- “29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceeding is filed, the guiding factor in such case would be to secure: (i) end of justice, or (ii) to prevent abuse of the process of the court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.” 12. Here in this case the parties have already resolved the disputes and entered into a settlement deed. And on the basis of the said settlement deed they approached this court for quashing the proceeding. In such a fact situation, and to considered opinion of this court, end of justice would be satisfied if the petition be allowed. Thus, the petitioners have succeeded in establishing a good case to invoke the extra-ordinary jurisdiction of this under section 482 Cr.P.C. 13. In the result I find sufficient merit in this petition and accordingly the same stands allowed. The Charge-Sheet No. 81/2013, dated 25.01.2013, arising out of the Aalo P.S. Case/FIR No.29/2013, dated 27.02.2013, registered under Sections 458/459/34 of the Indian Penal Code, and pending before the ld. Sessions Court, Aalo is accordingly stands quashed and set aside. The parties have to bear their own cost.