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2022 DIGILAW 1175 (GAU)

Puronen S/O Kumsangtoba v. State Of Nagaland

2022-10-25

KAKHETO SEMA

body2022
ORDER : Heard Mr. N. Longkumer, learned counsel for the petitioner, Mr. K. Angami, learned P.P. for the State respondent No.1 and Mr. M. Solo, learned counsel for the respondent No.2. 2. The petitioner has filed the present petition under section 482 Cr.P.C, 1973 to set aside and quash the FIR dated 21/02/2018 which is registered as Changtongya P.S Case No. 005/2018 corresponding to G.R No. 32/2018, the Charge Sheet No. 02/19 dated 06/02/2019 and the criminal proceeding pending in G.R No. 32/2018 before the learned Chief Judicial Magistrate, Mokokchung, Nagaland. 3. The petitioner is the alleged accused person against whom the criminal case has been registered. The respondent No.2 is the complainant and the sister of the victim in the case. 4. The case in brief is that on 21/02/2018, the respondent No.2 filed the FIR to the Officer-in-Charge, Changtongya Police Station stating that at about 9:00 A.M one Mr. Tuten of Merangkong village along with the supporters of Shri. Nuklutoshi, the NPF candidate had adducted her brother Mr. Alemyanger (victim). On receiving the information, the Police registered the Changtongya P.S Case No. 005/2018 under section 363/506/34 IPC. Subsequent to the filing of the FIR, Mr. Alemyanger, the victim was released on the same day with serious bodily injuries. The victim was first treated at Mokokchung but later shifted to Zion Hospital, Dimapur. In the course of the investigation of the case the involvement of the petitioner was revealed by the victim and the petitioner was arrested from Tuensang on 15/03/2018. The petitioner who is serving as the constable in the 3rd NAP Battalion, Nagaland was at the time of the incident attached to Shri. Nuklutoshi, the NPF candidate. The prosecution sanction was accordingly sought for and accorded by the competent authority to prosecute the petitioner in the case. On completion of the investigation, the Police submitted the Charge Sheet dated 06/02/2019 against the accused under section 363/506/325/352 IPC. The case is pending trial before the Court of the learned Chief Judicial Magistrate, Mokokchung. 5. On 30.12.2020, the petitioner and Mr. Alemyanger, the victim under the initiative of the social organisation namely, the Chuchuyimlang Nungshikumnba Aso Kidong of Dimapur and Kohima Units executed the agreement for compromising the misunderstanding between them in the spirit of forgive and forget in honour of the 100 years centenary celebration of Chuchuyimlang Baptist Church. 5. On 30.12.2020, the petitioner and Mr. Alemyanger, the victim under the initiative of the social organisation namely, the Chuchuyimlang Nungshikumnba Aso Kidong of Dimapur and Kohima Units executed the agreement for compromising the misunderstanding between them in the spirit of forgive and forget in honour of the 100 years centenary celebration of Chuchuyimlang Baptist Church. So also the petitioner, the respondent No.2 and the victim also executed the compromise dated 30/12/2020 for withdrawal of the criminal case pending against the petitioner. 6. Subsequent to the signing of the agreement, Mr. Alemyanger (the victim) unfortunately expired in the month of February, 2021. 7. Mr. N. Longkumer, the learned counsel for the petitioner submits that the incident occurred at Chuchuyimlang village during the State Assembly Election, 2018 due to some animosity between the supporters of the opposing political parties and this also resulted in physical assault to the victim. The complaint was thereafter lodged by the respondent No.2, the sister of the victim. However, during the course of the trial, the parties under the initiative of the Chuchuyimlang Nungshikumba Aso Kidong of Dimapur and Kohima Units have amicably settled the matter by executing the agreement and the compromise both dated 30/12/2020. The learned counsel for the petitioner accordingly submits that even if the trial is allowed to proceed against the petitioner the chances of the trial ending in conviction of the petitioner is remote in view of the compromise entered between the parties. The learned counsel accordingly submits that the Hon’ble Court may be gracious to accept the compromise executed between the parties and to quash the criminal proceeding pending against the petitioner. 8. In support of his submission, the learned counsel for the petitioner has relied in the case of Shiji Alias Pappu & Others versus Radhika & Another, reported in (2011) 10 SCC 705 , to substantiate that simply because an offence is not compoundable under section 320 Cr. P.C that by itself is no reason for the High Court not to exercise its power under section 482 Cr. P.C and such power can be exercise where there is no chance of recording a conviction against the accused and the entire exercise of a trial is destined to be an exercise in futility. P.C that by itself is no reason for the High Court not to exercise its power under section 482 Cr. P.C and such power can be exercise where there is no chance of recording a conviction against the accused and the entire exercise of a trial is destined to be an exercise in futility. The learned counsel has also relied in the case of Narinder Singh & Others -versus-State of Punjab & Another, reported in (2014) 6 SCC 466 , to buttress the point that if the settlement between the parties would lead to more good, better relation between the parties and prevent further occurrence of such encounters between the parties the court may accept the settlement of compromise executed between the parties and bring the criminal proceedings to an end. This citation has also been relied upon to submit that as the parties have compromised the misunderstanding between them the chances of convicting the petitioner appears very remote and therefore, the criminal proceedings against the petitioner may be quashed to secure the ends of justice and to prevent the abuse of the process of the Court. 9. Mr. K. Angami, learned P.P submits that the offences under which the petitioner has been charge sheeted are serious in nature and therefore, the ends of justice will be met only if the petitioner is allowed to stand trial and prove his innocence. The learned P.P. further submits that the offence charge against the petitioner/accused under section 363/325/352 are heinous crime affecting the society at large and therefore, the power under section 482 Cr. P.C to quash the criminal case against the petitioner/accused may not be resorted to by the Court although the parties might have settled the dispute by executing the compromise agreement. 10. In support of his submission, the learned P.P. has relied in the case of the State of Madhya Pradesh -versus-Laxmi Narayan & Others, reported in (2019) 5 SCC 688 , to substantiate that the power conferred under section 482 of the Code to quash the criminal proceeding for non compoundable offence under section 320 of the Code is not to be exercised in those cases which involved heinous and serious offences of mental depravity like murder, rape, dacoity etc. as such offences are not private in nature and have a serious impact on the society. 11. Mr. as such offences are not private in nature and have a serious impact on the society. 11. Mr. M. Solo, the learned counsel for the respondent No.2 submits that as the dispute between the parties have been amicably resolved by executing the deed of compromise, the criminal proceeding which is pending against the petitioner in the court of the learned Chief Judicial Magistrate, Mokokchung may be quashed to subserve the ends of justice. 12. Heard the learned counsel for the parties. This Court has perused the petition and the relevant annexure enclosed thereto. The case record called for from the learned trial court has also been perused. From the records it is ascertained that on 21/02/2018 during the State Assembly Election 2018, Mr. Alemyanger (the victim) was abducted by the petitioner and his friends on some election issues and grievously assaulted and for which the victim was treated at Mokokchung as well as in Zion Hospital Dimapur. The respondent No.2, who is the sister of the victim accordingly lodged the complaint dated 21/02/2018 to the Officer-in-Charge, Changtongya Police Station under Mokokchung district, Nagaland and consequent to which the Police registered Changtongya P.S Case No. 005/18 under section 363/506/34 IPC. In the course of the investigation of the case the identity of the petitioner was revealed by the victim. The Police therefore, on completion of the investigation charge sheeted the case against the petitioner under section 363/506/325/352 IPC. During the pendency of the case before the learned CJM, Mokokchung, Nagaland, the parties to the dispute namely the petitioner, the victim and the respondent No. 2 has on 30/12/2020 executed the agreement amicably settling the matter between them. 13. The petitioner is charged for the offence under section 363/506/325/352 IPC. The offence against which the petitioner is charged are serious in nature. Section 363 IPC provides for punishment for kidnapping and is a non compoundable offence. The offence of kidnapping is not only heinous but is also a crime against the society. The law is settled that the power conferred under section 482 Cr. P.C is not to be exercised for compounding heinous and serious offences having a serious impact on the society merely because a compromise has been executed between the parties. The offence of kidnapping is not only heinous but is also a crime against the society. The law is settled that the power conferred under section 482 Cr. P.C is not to be exercised for compounding heinous and serious offences having a serious impact on the society merely because a compromise has been executed between the parties. Moreover, a perusal of the trial court record shows that the charges against the petitioner has been framed on 04/03/2020 and out of the 9(nine) prosecution witnesses, 7(seven) of them have been examined by the trial court on 04/03/2020, 12/03/2020, 19/03/2020 & 02/07/2020. Both the complainant and the victim has also been examined by the learned trial court on 19/03/2020. From the records, it is seen that there are only 2(two) prosecution witnesses namely, Inspector Sietuo Angami (PW-2) and Dinesh Gupta, IPS (PW-9) who are yet to be examined by the court. It is therefore, observed that the learned trial court has almost completed the examination of all the prosecution witnesses. Moreover, from the records it is also seen that the evidence of the 2(two) remaining prosecution witnesses could not be expedited due to the pandemic and in view of the order dated 31/03/2022 passed by this Court suspending the proceeding of the present case pending before the learned CJM, Mokokchung. It is also important to note that the amicable settlement between the parties was executed only on 30/12/2020 whereas the incident occurred way back on 21/12/2018 and the evidence of both the complainant and the victim was recorded by the learned trial court on 09/03/2020. Therefore, the submission made by the learned counsel for the petitioner that as the parties have compromised the case on 30/12/2020, the chances of convicting the petitioner appears remote does not carry any conviction as there are evidence on record for enabling the trial court to evaluate the same and to come to a proper conclusion as to whether the evidence on record warrants the conviction of the petitioner or not. Moreover, the present petition was filed by the petitioner belatedly only on 30/03/2022 after the evidence of the prosecution witnesses were almost completed. This Court is therefore of the view that the intent and object of executing the settlement was only with a view to scuttle the legitimate trial of the case and absolve the petitioner from the criminal liability without a proper trial. This Court is therefore of the view that the intent and object of executing the settlement was only with a view to scuttle the legitimate trial of the case and absolve the petitioner from the criminal liability without a proper trial. This Court is therefore of the view that mere settlement between the parties cannot be a ground to quash the criminal proceeding before the trial court inasmuch as the settlement of such heinous crime cannot have the imprimatur of this Court. The Hon’ble Supreme Court in a catena of decisions has categorically held that in heinous and serious offences involving mental depravity or offences such as murder, rape, dacoity etc. such offences cannot appropriately be quashed though the victim or the family of the victim have settled the dispute with the accused as such offences are not private in nature but have serious impact on the society. In the present case, the offences charged against the petitioner being serious in nature, this Court is not inclined to accept the settlement executed between the parties and to quash the criminal proceeding pending before the trial court. 14. Another factor for which this Court refuses to quash the trial of the case at this stage is because of the fact that the evidence before the trial court has almost completed. This Court is therefore of the considered view that it may not be proper at this stage to stifle a legitimate trial and occasion a miscarriage of justice but allow the trial to reach its logical conclusion in the best interest of both the prosecution as well as the accused/petitioner. Quashing of the criminal trial pending before the court in the facts and circumstances of the case at this juncture will amount to an abuse of the process of the court. 15. On consideration of the entire facts and circumstances of the case, this Court is of the considered opinion that the present case is not a fit case where this court should exercise the inherent power under section 482 Cr .P.C to set aside and quash the criminal trial pending against the petitioner before the learned court below. 16. In the case of State of Rajasthan -versus-Shambhu Kewat & Another, reported in (2014) 4 SCC 149 , the Hon’ble Supreme Court has held that; “15. 16. In the case of State of Rajasthan -versus-Shambhu Kewat & Another, reported in (2014) 4 SCC 149 , the Hon’ble Supreme Court has held that; “15. We are not prepared to say that the crime alleged to have been committed by the accused persons was a crime against an individual, on the other hand it was a crime against the society at large. Criminal law is designed as a mechanism for achieving social control and its purpose is the regulation of conduct and activities within the society. Why Section 307 IPC is held to be non-compoundable, is because the Code has identified which conduct should be brought within the ambit of non-compoundable offences. Such provisions are not meant just to protect the individual but the society as a whole. The High Court was not right in thinking that it was only an injury to the person and since the accused persons (sic victims) had received the monetary compensation and settled the matter, the crime as against them was wiped off. Criminal justice system has a larger objective to achieve, that is safety and protection of the people at large and it would be a lesson not only to the offender, but to the individuals at large so that such crimes would not be committed by any one and money would not be a substitute for the crime committed against the society. Taking a lenient view on a serious offence like the present, will leave a wrong impression about the criminal justice system and will encourage further criminal acts, which will endanger the peaceful co-existence and welfare of the society at large.” 17. In the case of Varala Bharath Kumar & Another -versus-State of Telangana & Another, reported in (2017) 9 SCC 413 , the Hon’ble Supreme Court has held that; “7. While exercising power under Section 482 or under Article 226 in such matters, the court does not function as a court of appeal or revision. Inherent jurisdiction under Section 482 of the Code though wide has to be exercised sparingly, carefully or with caution and only when such exercise is justified by the tests specifically laid down under Section 482 itself. It is to be exercised ex debito justitiae to do real and substantial justice, for the administration of which alone courts exist. Inherent jurisdiction under Section 482 of the Code though wide has to be exercised sparingly, carefully or with caution and only when such exercise is justified by the tests specifically laid down under Section 482 itself. It is to be exercised ex debito justitiae to do real and substantial justice, for the administration of which alone courts exist. The court must be careful and see that its decision in exercise of its power is based on sound principles. The inherent powers should not be exercised to stifle a legitimate prosecution. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extra ordinary jurisdiction of quashing the proceedings at any stage.” 18. So also in the case of Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur & Others -versus-State of Gujarat & Another, reported in (2017) 9 SCC 641 , the Hon’ble Supreme Court has held that; “12. In Narinder Singh, Dr Justice A.K. Sikri, speaking for a bench of two learned Judges of this Court observed that in respect of offences against society, it is the duty of the state to punish the offender. In consequence, deterrence provides a rationale for punishing the offender. Hence, even when there is a settlement, the view of the offender and victim will not prevail since it is in the interest of society that the offender should be punished to deter others from committing a similar crime. On the other hand, there may be offences falling in the category where the correctional objective of criminal law would have to be given more weightage than the theory of deterrence. In such a case, the court may be of the opinion that a settlement between the parties would lead to better relations between them and would resolve a festering private dispute. The court observed that the timing of a settlement is of significance in determining whether the jurisdiction under Section 482 should be exercised: (SCC p.484, para 29.7) "29.7...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. 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..." 16. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions: 16.1. 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 recognises and preserves powers which inhere in the High Court; 16.2. 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. 16.3. 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. 16.4. 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; 16.5. 16.4. 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; 16.5. 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. 16.6. 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. 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. 16.7. 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. 16.8. Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute. 16.9. 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; and 16.10. …………” 19. Further, in the case of State of Madhya Pradesh -versus-Laxmi Narayan & Others, reported in (2019) 5 SCC 688 , the Hon’ble Supreme Court has held that; “11. At the outset, it is required to be noted that in the present appeals, the High Court in exercise of its powers under Section 482 of the Cr. P.C. has quashed the FIR for the offences under Sections 307 and 34 of the IPC solely on the basis of a compromise between the complainant and the accused. At the outset, it is required to be noted that in the present appeals, the High Court in exercise of its powers under Section 482 of the Cr. P.C. has quashed the FIR for the offences under Sections 307 and 34 of the IPC solely on the basis of a compromise between the complainant and the accused. That in view of the compromise and the stand taken by the complainant, considering the decision of this Court in Shiji, the High Court has observed that there is no chance of recording conviction against the accused persons and the entire exercise of a trial would be exercise in futility, the High Court has quashed the FIR. 11.1. However, the High Court has not at all considered the fact that the offences alleged were non-compoundable offences as per Section 320 of the Cr.P.C. From the impugned judgment and order, it appears that the High Court has not at all considered the relevant facts and circumstances of the case, more particularly the seriousness of the offences and its social impact. From the impugned judgment and order passed by the High Court, it appears that the High Court has mechanically quashed the FIR, in exercise of its powers under Section 482 Cr. P.C. The High Court has not at all considered the distinction between a personal or private wrong and a social wrong and the social impact. As observed by this Court in the State of Maharashtra v Vikram Anantrai Doshi, the Court’s principal duty, while exercising the powers under Section 482 Cr. P.C to quash the criminal proceedings, should be to scan the entire facts to find out the thrust of the allegations and the crux of the settlement. As observed, it is the experience of the Judge that comes to his aid and the said experience should be used with care, caution, circumspection and courageous prudence. In the case at hand, the High Court has not at all taken pains to scrutinise the entire conspectus of facts in proper perspective and has quashed the criminal proceedings mechanically. Even, the quashing of the FIR by the High Court in the present case for the offences under Sections 307 and 34 of the IPC, and that too in exercise of powers under Section 482 of the Cr. P.C is just contrary to the law laid down by this Court in a catena of decisions. Even, the quashing of the FIR by the High Court in the present case for the offences under Sections 307 and 34 of the IPC, and that too in exercise of powers under Section 482 of the Cr. P.C is just contrary to the law laid down by this Court in a catena of decisions. 11.2 ……………………………… 11.3………………………… 11.4.…………………………. 11.5. In Manish, this Court has specifically observed and held that, when it comes to the question of compounding an offence under Sections 307, 294 and 34 IPC, by no stretch of imagination, can it be held to be an offence as between the private parties simpliciter. It is observed that such offences will have a serious impact on the society at large. It is further observed that where the accused are facing trial under Sections 307 read with Section 34 IPC, as the offences are definitely against the society, the accused will have to necessarily face trial and come out unscathed by demonstrating their innocence. 11.6. In Deepak, this Court has specifically observed that as the offence under Section 307 IPC is non-compoundable and as the offence under Section 307 is not a private dispute between the parties inter se, but is a crime against the society, quashing of the proceedings on the basis of a compromise is not permissible. Similar is the view taken by this Court in a recent decision of this Court in the case of Kalyan Singh and Dhruv Gurjar.” 20. In the light of the discussions made above and the law laid down by the Hon’ble Supreme of India, this Court is not inclined to accept the settlement executed between the rival parties to set aside and quash the criminal proceeding/trial which is pending against the petitioner in the court of the learned Chief Judicial Magistrate, Mokokchung, Nagaland in Changtongya P.S Case No. 005/2018 corresponding to G.R No. 32/2018 in exercise of the inherent power under section 482 Cr. P.C. 21. The criminal petition is accordingly dismissed. No cost. 22. The learned Chief Judicial Magistrate, Mokokchung shall hear and dispose the case pending before it in accordance with law. 23. Send back the LCR forthwith.