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2023 DIGILAW 360 (UTT)

Zeba v. State of Uttarakhand

2023-06-12

SHARAD KUMAR SHARMA

body2023
JUDGMENT : These are four C482 Applications. 2. C482 Application No. 811 of 2020, Zeba Vs. State of Uttarakhand and Another, arises out of a Criminal Case No. 2432 of 2020, State Vs Zeba, whereby the present applicant has been summoned by an order dated 30.07.2020 by the Court of Additional Chief Judicial Magistrate, 1st Dehradun, for being tried for the offences under Section 420, 468, 471 and 506 of IPC. 3. In this C482 Application, a fact which has come on record, is that the parties were already under a civil litigation by way of Suit No. 338 of 2019, Mehraj Vs. Zeba, which has been decided by the Civil Court, on the basis of the compromise whereby the plaintiff Mehraj has undertaken to vacate the premises by 30.05.2023 with a further rider that he would be removing the electric and water connections attached therein. This matter is listed today on the Compounding Application, contending therein that owing to the dispute which has been settled in the suit, the parties to the proceedings do not intend to prosecute each other, any further in relation to the aforesaid offences. 4. In C482 Application 1097 of 2023, Asgar Khan and others Vs. State of Uttarakhnd and Another, the proceedings which has been subjected to challenge are that of the Criminal Case No.3732 of 2018 Mehraj Ali Vs. Zeba whereby the present applicants have been summoned to be tried for the offences under Sections 147, 325, 452, 504 and 506 of IPC, on which the summoning order has been issued on 22.10.2018 by the Court of Additional Chief Judicial Magistrate, 1st, Dehradun. So far as all the offences are concerned, they are compoundable under Section 320 of CrPC, except for the offence under Section 452 of IPC, which is not compoundable under Section 320 of CrPC, but, if theentire set of allegations, which have been levelled in the complaint and the observations which have been made in the summoning orders are taken into consideration and, particularly, in the context of the decree rendered in the Civil Suit, the implications of Section 452 of IPC, has had to be reasonably construed so that an inter se dispute between the parties is laid to rest for all times to come and the judgment of the Civil Court may be permitted to be executed in its letter and spirit. Hence, despite the fact, that the offence under Section 452 of IPC is not compoundable under Section 320 of Cr.PC, this Court, while exercising its inherent powers, is of the view, that looking to the nature of offence pertaining to Section 452 of IPC, is not exactly established beyond probable doubts when the allegations levelled in the complaint are that the present applicants, after forcefully entering into the residence, had assaulted the complainant / respondent with the use of lathi and bricks. But, this C482 Application since too is accompanied with a Compounding Application, which has been duly signed by all the parties including their respective counsels, thus in order to bring peace and harmony, amongst themselves, the C482 Application is required to be considered in the light of the averments of settlement made in paragraph Nos.3 and 4 of the compounding application, which has been filed by the parties along with their respective affidavits. 5. In C482 Application 1099 of 2023, Mehraj Ali and others Vs. State of Uttarakhand and Another, that arises out of the Sessions Trial No. 110 of 2016 State Vs. Mehraj Ali and Another, wherein the present applicants have been summoned by an order dated 02.11.2017 for being tried for the offences under Sections 147, 148, 149, 307, 325,452, 504 and 506 of IPC. In this case, though the fact has come on record that the charge has already been framed on 02.11.2017, but still in order to take a pragmatic view, in order to the settlement of dispute amongst the parties, the concern for this Court would be the allegations, pertaining to the offences under Section 307 of IPC and if that is taken into consideration in the light of the allegations levelled in the FIR, it was observed that as a consequence of the assault made by the applicants, the victim has suffered injuries on head and other parts of the body. 6. According to the Chargesheet, being Chargesheet No. 25 of 2016 dated 28.01.2016, the Investigating Officer, after examining as many as 12 witnesses has observed on the basis of the statements of the witnesses, that the offences under Section 307 and 452 of IPC are made out along with the other offences. 6. According to the Chargesheet, being Chargesheet No. 25 of 2016 dated 28.01.2016, the Investigating Officer, after examining as many as 12 witnesses has observed on the basis of the statements of the witnesses, that the offences under Section 307 and 452 of IPC are made out along with the other offences. But, however, there is no detailed scrutiny which has been made by the Investigating Officer in the Chargesheet with regard to the commission of offences under Sections 452 and 307 of IPC. Rather a very cursory observation has been made by the Investigating Officer based on the supplementary medical report, the factum of which too has not been detailed by the Investigating Officer in the Chargesheet, after appreciating evidence which has thus been submitted, resulting in an institution of the Sessions Trial No. 110 of 2016. 7. In this C482 Application, too, there is a Compounding Application, which has been duly signed by all the parties to the proceedings, including their respective counsels, and the grounds of settlement have been referred to inparagraphs No. 2 and 3 of the Compounding Application, which is duly supported by their respective affidavits. 8. In C482 Application No. 1106 of 2023, Sehtab and others Vs. State of Uttarakhand and Another, the challenge as given is to the proceedings of Sessions Trial No. 109 of 2016, State Vs. Sehtab and another for the offences under Sections 147, 148, 307, 325, 452, 504 & 506 of IPC. In this case too, if the FIR, which was registered, being FIR No. 308 of 2015 dated 21.10.2015 is taken into consideration, almost a similar set of allegations have been levelled as against the present applicants with regard to the assault being made by use of lathi and the injury which is said to have been caused on the head and other parts of the body. 9. It’s not that, the offence under Sections 452 or 307 of IPC, which are not otherwise compoundable under Section 320 of CrPC attains an immunity from its composition because of its non inclusion in the table appended to Section 320 of CrPC. The composition of a non compoundable offence and particularly, in the context of an offence under Section 307 of IPC was an issue which was considered by the Hon’ble Apex Court in quite detail, in the matters of Narinder Singh and Others Vs. The composition of a non compoundable offence and particularly, in the context of an offence under Section 307 of IPC was an issue which was considered by the Hon’ble Apex Court in quite detail, in the matters of Narinder Singh and Others Vs. State of Punjab and Another, as reported in 2014 (6) SCC 466 , and particularly in the light of the guidelines, which have been framed by the Hon’ble Apex Court in para 29 of the said judgment, which has laid down the circumstances under which the offences under Section 307 of IPC could be compounded. But, the only rider which has been attached to it, is that the Court, while compounding the offence under Section 307 of IPC or for other such non-compoundable offences, will have to ensure the compliance of certain guidelines framed by the Hon’ble Apex Court in Narinder Singh (supra), which will be in the light of the parameters provided and also dealt in para 29 of the said judgment, which was dealt with by this Court in the matters of Pan Singh Rana Vs. State of Uttarakhand and another, as reported in 2018 (2) UD 680 and the relevant parameters have been extracted in para 32, which has been extracted hereunder:- “32. However, the said judgment has created a specific bar that when such an agreement for settling the dispute of a heinous crime is based on the compromise which is being sought to be arrived at, at an appellate stage, when the accused has already been held guilty, no such power of composition of offence at the appellate stage could be made. Hence, while concluding, the Hon’ble Apex Court in the case of Narinder Singh (Supra), in its para 29 has laid down the certain guiding factors to be adhered to for dealing with the composition based on settlement. “29. Hence, while concluding, the Hon’ble Apex Court in the case of Narinder Singh (Supra), in its para 29 has laid down the certain guiding factors to be adhered to for dealing with the composition based on settlement. “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 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. 29.4 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 quashing the 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. 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/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. 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. 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 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 the trial 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. On considering the aforesaid judgment and the ratio as propounded by his Lordships as a matter of fact even the Hon’ble Apex Court has laid down that it would not be safe to hold that there is an absolute bar of compounding the heinous offence, but, only precautions are the guidelines which have been laid down by the Hon’ble Apex Court in para 29 of the Narinder Singh (Supra) case.” 10. Particularly, the guidelines given by the Narinder Singh (supra), have laid down the ratio in its para 29.6, as to under what circumstances the offences under Section 307 of IPC could be compounded and while the other ratios laid down by the judgment in Gian Singh, Dimpy Gujral, it deals with the aspects relating to the other non compoundable offence. 11. Since in the instant case, the offence under Section 307 of IPC, which is a subject matter of C482 Application No. 1099 of 2023 and C482 Application 1106 of 2023, they satisfied the test of its composition provided underpara 29.6 of Narinder Singh (supra) as dealt in para 32 of the judgment of Pan Singh Rana (supra), referred to hereinabove, this Court is of the view, that since now the parties have unanimously settled their dispute based upon the terms of the decree rendered between the parties in Civil Suit No. 338 of 2019, Mehraj Vs. Zeba, where a compromise has already been entered into for settling their dispute, this Court is of the view, that the Court’s effort exercising powers under Section 482 of CrPC, should be to curb a prolonged litigation, particularly, when the issue inter se the parties is in relation to the property, which was the cause of a civil litigation, as well as that of a criminal litigation when it has been brought to an end by a decree rendered by the Court in Suit No. 338 of 2019. 12. In that view of the matter, this Court is of the view, that continuing of the C482 Applications would be nothing, but an act of futility, to force upon the parties to litigate on a criminal side despite the fact, that they have expressed their opinion that they want to litigate the further proceedings for the reason being, that even the Appeal preferred before the High Court as against the judgment of Suit No. 338 of 2019 has been agreed to be dismissed as withdrawn by the parties. 13. Owing to the aforesaid fact, apart from the fact as narrated in the Compounding Applications, these C482 Applications would stand disposed of in terms of the compromise, and further because of the fact, that the parties have settled their dispute in terms of the decree rendered in the aforesaid Civil Suit. 13. Owing to the aforesaid fact, apart from the fact as narrated in the Compounding Applications, these C482 Applications would stand disposed of in terms of the compromise, and further because of the fact, that the parties have settled their dispute in terms of the decree rendered in the aforesaid Civil Suit. Hence, no fruitful purpose would be served to continue with the criminal proceedings when the parties do not intend to further prosecute each other for the offences for which the respective complaint cases and the Sessions Trials are pending consideration before the concerned competent Courts. 14. As a consequence of the above, the Compounding Applications would stand allowed, and as a result, thereto, the proceedings of Criminal Case No. 2432 of 2020, State Vs. Zeba, which is a subject matter of consideration in C482 Application No. 811 of 2020; Criminal Complaint Case No. 3732 of 2018, Mehraj Ali Vs. Zeba and others, which is a subject matter of C482 Application No. 1097 of 2023; Special Sessions Trial No. 110 of 2016, State Vs. Mehraj Ali and Another, as under consideration in C482 Application No. 1099 of 2023 and Sessions Trial No. 109 of 2016, State Vs. Sehtab and Another, as pending consideration in C482 Application No. 1106 of 2023, deserve to be compounded in terms of the Compounding Applications and for the reasons given, hereinabove, particularly in the light of the judgments rendered by the Hon’ble Apex Court. 15. Consequently, all the C482 Applications would stand disposed of in terms of the respective Compounding Applications. The respective criminal proceedings, as detailed above would hereby stand quashed. 16. Let a copy of this judgment be placed in the order sheet of all the connected matters.