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2022 DIGILAW 301 (MEG)

Christopher Swer v. State of Meghalaya

2022-11-15

W.DIENGDOH

body2022
JUDGMENT 1. This is an application under Section 482 Cr.P.C filed by the petitioners herein with a prayer to quash the First Information Report (FIR) No. 105 (11) of 2014 dated 8.11.2014 and the proceedings related thereto pending before the Court of the learned Chief Judicial Magistrate (CJM), Shillong in GR Case No. 68(S) of 2015 under Section 365/379/34 IPC. 2. Heard Mr. H. R. Nath, learned counsel for the petitioners who has submitted that the facts of the case between the petitioners has its genesis to the FIR dated 8.11.2014 lodged by the petitioner No. 1 herein before the Officer- In-Charge, Laban Police Station wherein he has narrated an incident which occurred on 8.11.2014 at about 9:30 pm. While he was on his way to his resident at Laban before reaching his house, four boys attacked him and punched him and also forcefully entered his car and drove towards Nongthymmai. When they stopped at Jingkieng Nongthymmai, two of them got off the car allowing the informant to escape where he ran to his friend's house and eventually they dropped him home. Hence the FIR. It is also mentioned therein that the assailants has taken his bag containing his laptop, his mobile phone and important official documents. The case was registered as Laban P.S. Case No. 105(11) 2014 under Section 365/379/34 IPC and investigation was launched. In course of investigation, the I/O has arrested (i) Shri. Andrian Sohtun, (ii) Shri. Bryan Sohtun, (iii) Shri. Pharstar Ryntathiang, (iv) Shri. Bob Marbaniang and (v) Smti. Angela Dafiny Sohtun. 3. The Investigating Officer (I/O) after completion of the investigation has filed the charge sheet under Section 173 Cr.P.C implicating the abovementioned person who were arrested in the case. 4. The learned CJM then framed charges against the accused/petitioner No. 2, 3 and 4 as well as against Shri Pharstar Ryntathiang. From the records it is shown that another accused person, Bob Marbaniang is since deceased. Thereafter, the matter was fixed for evidence and the evidence of PW-1 who is the petitioner No. 1 herein as complainant was recorded on 7.9.2022. 5. From the records it is shown that another accused person, Bob Marbaniang is since deceased. Thereafter, the matter was fixed for evidence and the evidence of PW-1 who is the petitioner No. 1 herein as complainant was recorded on 7.9.2022. 5. The learned counsel for the petitioners has submitted that the whole episode was a case of misunderstanding between the parties since, two of the apprehended persons are the sons of the complainant's friend and on intervention of the relatives, the petitioner No. 1 has amicably settled the matter between him and the petitioner No. 2, 3 and 4 respectively. The police was approached for withdrawal of the FIR but since the same was registered under non-compoundable sections of the Indian Penal Code, the compromise between the parties could not be affected. 6. It is also the submission of the learned counsel that the petitioner No. 1 had genuinely accepted the apology tendered by the petitioners No. 2, 3 and 4 herein and in his evidence before the Court as PW-1 has clearly deposed that the incident never happened. 7. In this regard, the learned counsel for the petitioner has submitted that an affidavit bringing on record the Deed of Compromise executed between the Petitioner No. 1/complainant and petitioners No. 2, 3 and 4 as well as the accused Shri. Pharstar Ryntathiang has been filed before this Court wherein it is clearly stated that on intervention of the elders and well-wishers of the parties, the matter has been peacefully and amicably settled between the parties, without any influence, coercion or consideration of any kind from any side. 8. In support of his case the learned counsel for the petitioner has referred the case of 'Dapyooki Dkhar & Anr. v. State of Meghalaya & Anr. in Crl. Petn. No. 34 of 2021' wherein vide order dated 1.10.2021 this Court in a dispute between the parties involving non-cognizable and non-compoundable offences on a compromise between the parties has allowed the same and has quashed the proceedings of the criminal case thereof. Another case cited by the learned counsel for the petitioners is the case of 'Ramgopal & Anr. v. State of Madhya Pradesh: 2021 SCC Online SC 834'. 9. Per contra, Mr. S. Sengupta, leaned Addl. Another case cited by the learned counsel for the petitioners is the case of 'Ramgopal & Anr. v. State of Madhya Pradesh: 2021 SCC Online SC 834'. 9. Per contra, Mr. S. Sengupta, leaned Addl. PP appearing for the State respondent has submitted that the conduct of the petitioner No. 1/complainant as could be seen from the record is not trustworthy as he has contradicted himself, firstly by filing the FIR detailing the incident of assault and kidnapped as well as robbery against him but in his evidence as PW-1 he has stated that no such incident occurred and it was only a case of collision of two vehicles that is, his vehicle and the vehicle of the petitioners No. 2, 3 and 4, for which they had proceeded towards Nongthymmai to repair the damaged caused. This had not only prejudiced the prosecution's case but would also cast a doubt in the mind of the court which can be cleared only after the complete evidence is recorded. 10. On consideration of the submission made, facts as noted above are no longer required to be reiterated. The observation is such that there is no denying the fact that the complainant could not have made up a story of him being waylaid and assaulted and also abducted by his own vehicle by the accused/petitioners No. 2, 3 and 4 and another. Records would also show that his stolen property, e.g., laptop and others was duly recovered by the police and returned to him. 11. The only issue is that in his deposition as PW-1 he has changed the story completely and apart from the fact that he has stated that the parties have arrived at a compromise, his statement that no accident has occurred and that the accused/petitioners No. 2, 3 and 4 have not assaulted him would only put the trial court in a quandary. At that point of time, it would have been the duty of the prosecution to declare him a hostile witness which was not done so. The inevitable is obvious, that is, the element of the benefit of doubt may go to the accused persons. It is also noticed that the offences involved are not so heinous or serious like murder, rape or dacoity, but one which does not carry the punishment of life imprisonment or the death sentence. 12. The inevitable is obvious, that is, the element of the benefit of doubt may go to the accused persons. It is also noticed that the offences involved are not so heinous or serious like murder, rape or dacoity, but one which does not carry the punishment of life imprisonment or the death sentence. 12. This court is also persuaded to believe that the authority cited in the case of Ramgopal (supra) is relevant to the issue in hand. 13. It would be self-explanatory if relevant paragraphs of the above cited judgments is extracted herein being para 9, 10, 11, 12 and 19, '9. Before scrutinizing the facts of these cases and rephrasing the scope of powers exercisable by a High Court under Section 482 Cr.P.C., it would be apropos to illuminate the following principles laid down by a 3-Judge Bench of this Court in Gian Singh (Supra) case: '61. the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz. : (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc.; cannot provide for any basis for quashing criminal proceedings involving such offences. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc.; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.' 10. The compendium of these broad fundamentals structured in more than one judicial precedent, has been recapitulated by another 3-Judge Bench of this Court in State of Madhya Pradesh v. Laxmi Narayan & Ors. The compendium of these broad fundamentals structured in more than one judicial precedent, has been recapitulated by another 3-Judge Bench of this Court in State of Madhya Pradesh v. Laxmi Narayan & Ors. elaborating: '(1) That the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves; (2) Such power is not to 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; (3) Similarly, such power is not to be exercised for the offences under the special statutes 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; (4) xxx xxx xxx (5) While exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offences, which are private in nature and do not have a serious impact on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise, etc.' 11. True it is that offences which are 'non-compoundable' cannot be compounded by a criminal court in purported exercise of its powers under Section 320 Cr.P.C. Any such attempt by the court would amount to alteration, addition and modification of Section 320 Cr.P.C, which is the exclusive domain of Legislature. There is no patent or latent ambiguity in the language of Section 320 Cr.P.C., which may justify its wider interpretation and include such offences in the docket of 'compoundable' offences which have been consciously kept out as non-compoundable. There is no patent or latent ambiguity in the language of Section 320 Cr.P.C., which may justify its wider interpretation and include such offences in the docket of 'compoundable' offences which have been consciously kept out as non-compoundable. Nevertheless, the limited jurisdiction to compound an offence within the framework of Section 320 Cr.P.C. is not an embargo against invoking inherent powers by the High Court vested in it under Section 482 Cr.P.C. The High Court, keeping in view the peculiar facts and circumstances of a case and for justifiable reasons can press Section 482 Cr.P.C. in aid to prevent abuse of the process of any Court and/or to secure the ends of justice. 12. The High Court, therefore, having regard to the nature of the offence and the fact that parties have amicably settled their dispute and the victim has willingly consented to the nullification of criminal proceedings, can quash such proceedings in exercise of its inherent powers under Section 482 Cr.P.C., even if the offences are non-compoundable. The High Court can indubitably evaluate the consequential effects of the offence beyond the body of an individual and thereafter adopt a pragmatic approach, to ensure that the felony, even if goes unpunished, does not tinker with or paralyze the very object of the administration of criminal justice system. 19. We thus sumup and hold that as opposed to Section 320 Cr.P.C. where the Court is squarely guided by the compromise between the parties in respect of offences 'compoundable' within the statutory framework, the extraordinary power enjoined upon a High Court under Section 482 Cr.P.C. or vested in this Court under Article 142 of the Constitution, can be invoked beyond the metes and bounds of Section 320 Cr.P.C. Nonetheless, we reiterate that such powers of wide amplitude ought to be exercised carefully in the context of quashing criminal proceedings, bearing in mind: (i) Nature and effect of the offence on the conscious of the society; (ii) Seriousness of the injury, if any; (iii) Voluntary nature of compromise between the accused and the victim; & (iv) Conduct of the accused persons, prior to and after the occurrence of the purported offence and/or other relevant considerations.' 14. In view of the above, this Court is therefore inclined to allow the compromise arrived at between the parties and by virtue of the exercise of power under Section 482 Cr.P.C which can be invoked beyond the metes and bounds of Section 320 Cr.P.C, this petition can be allowed. 15. This petition is accordingly allowed, the proceedings against the accused/petitioners in GR Case No. 68(S) of 2015 is hereby quashed.