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2023 DIGILAW 618 (HP)

Ganesh Kumar v. State of Himachal Pradesh

2023-12-29

RAKESH KAINTHLA

body2023
JUDGMENT : Rakesh Kainthla, J. The petitioners have filed the present petition for quashing of FIR No. 144/2021 dated 09.09.2021 registered at Police Station Indora, for the commission of offences punishable under Section 304 read with Section 34 of IPC and consequent proceedings arising therefrom. 2. As per the FIR, the informant, his friends Happy Singh, Sushil Kumar and Arjun Singh were travelling on the tractor. Happy Singh got down from the tractor and went to answer the call of nature. The informant and other persons waited for him on the tractor. They heard the cries of Happy Singh. They went to the spot and saw Happy Singh lying on his stomach. When the informant and Sushil Kumar tried to pick up Happy Singh, they suffered an electric shock. They checked the surroundings with the mobile and found that electric wires were installed. These wires were installed by Ganesh Kumar and Tilak Raj to save their crop from the wild animals. The act of the accused could have led to the death of any person and this act led to the death of Happy Singh. The police conducted the investigation and prepared a challan against the accused for the commission of offences punishable under Section 304 read with Section 34 of IPC. 3. The parties have settled the matter. Statements of Uday Singh, Prem Singh and Asha Devi were recorded. Uday Singh, Prem Singh father of Happy Singh and Asha Devi mother of Happy Singh stated that they had entered into a compromise voluntarily with the accused without any influence, hence, the FIR be quashed. 4. I have heard Mr. Vijender Katoch, learned counsel for the petitioners and Ms. Avni Kochhar, learned Deputy Advocate General, for respondent No.1/State. 5. Mr Vijender Katoch, learned counsel for the petitioners, submitted that the matter has been compromised between the parties, therefore, the FIR be quashed. He has relied upon the judgments passed by this Court in Ramlingam Sambanth & ors. versus State of H.P and ors, 2023:HHC:5908, Sanjeev Kumar @ Sanju versus State of H.P and Ors., 2022: HHC: 8166, by Punjab and Haryana High Court in Sikander Yadav & Anr. versus State of Haryana & Ors, 2023:PHHC:034896, by Hon’ble Supreme Court in Rajan versus Joseph & ors in Criminal Appeal No. 582 of 2015 and Delhi High Court in Rohit Kumar Gupta and anr. versus State of Haryana & Ors, 2023:PHHC:034896, by Hon’ble Supreme Court in Rajan versus Joseph & ors in Criminal Appeal No. 582 of 2015 and Delhi High Court in Rohit Kumar Gupta and anr. versus State NCT of Delhi & Anr in Crl. MC. No.1867 of 2022 in support of his submission. 6. Ms. Avni Kochhar, learned Deputy Advocate General, for respondent no.1/State submitted that the learned counsel for the petitioners has relied upon the judgments under Section 304A of IPC, whereas, the accused has been charged with the commission of an offence punishable under Section 304 of IPC, hence, these judgments do not apply to the present case. The act of the accused was inherently dangerous. They had put the lives of the public in danger. Therefore, she prayed that the present petition be dismissed. 7. I have given considerable thought to the submissions at the bar and have gone through the record carefully. 8. The Hon’ble Supreme Court examined the power of the Court to quash the FIR based on the compromise in Narender Singh versus State of Punjab, 2014 (6) SCC 466 and laid down the following principles:- 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. 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, the offences alleged to have been committed under 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. 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 relationships 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 crimes 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 whether incorporation of Section 307 IPC is there for the sake of it or if 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 the injury sustained, whether such injury is inflicted on the vital/delicate parts of the body, the nature of weapons used, etc. Medical reports 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 whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. Medical reports 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 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 a 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, the 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 this reason that at this stage the investigation is still on and even the charge sheet has not been filed. Likewise, in those cases where the charge is framed but the evidence is yet to start or the evidence is still at the infancy stage, the High Court can show benevolence in exercising its powers favourably, but after a 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 the acquittal of the offender who has already been convicted by the trial court. 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 the 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, therefore, there is no question of sparing a convict found guilty of such a crime. 9. This question was again considered in Parbatbhai Aahir v. State of Gujarat, (2017) 9 SCC 641 : (2018) 1 SCC (Cri) 1: 2017 SCC OnLine SC 1189 and the following principles were summarized: 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 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 the 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 insofar 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. There is yet an exception to the principle set out in propositions 16.8. and 16.9. above. Economic offences involving the financial and economic well-being of the State have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.” 10. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.” 10. Similar principles were laid down in State of M.P. v. Laxmi Narayan, (2019) 5 SCC 688 : (2019) 2 SCC (Cri) 706: 2019 SCC OnLine SC 320: “15. Considering the law on the point and the other decisions of this Court on the point, referred to hereinabove, it is observed and held as under: 15.1. 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; 15.2. 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; 15.3. Similarly, such power is not to be exercised for the offences under 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; 15.4. Offences under Section 307 IPC and the Arms Act, etc. would fall in the category of heinous and serious offences and therefore are to be treated as crimes against the society and not against the individual alone, and therefore, the criminal proceedings for the offence under Section 307 IPC and/or the Arms Act, etc. which have a serious impact on the society cannot be quashed in exercise of powers under Section 482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves. 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 whether incorporation of Section 307 IPC is there for the sake of it or if the prosecution has collected sufficient evidence, which if proved, would lead to framing the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of the injury sustained, whether such injury is inflicted on the vital/delicate parts of the body, the nature of weapons used, etc. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation the charge sheet is filed/the charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paras 29.6 and 29.7 of the decision of this Court in Narinder Singh [Narinder Singh v. State of Punjab, (2014) 6 SCC 466 : (2014) 3 SCC (Cri) 54] should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove; 15.5. While exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offences, which are private 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. It is apparent from these principles that the High Court can quash the FIR in the exercise of the power conferred under Section 482 of Cr.P.C. on the ground of the settlement having due regard to the nature and gravity of the offence. Heinous offences, which are not private but have a serious impact upon society cannot be compromised whereas, the offences, which affect the private parties and not the public at large can be compromised. 12. In the present case, the accused had put a live electric wire around their field. Heinous offences, which are not private but have a serious impact upon society cannot be compromised whereas, the offences, which affect the private parties and not the public at large can be compromised. 12. In the present case, the accused had put a live electric wire around their field. This act was inherently dangerous and would put any person coming in contact with the electric wire in danger. Their act had already taken precious life of Happy Singh. The act of putting the electricity wires was not directed towards one individual but society at large. It is not a dispute between the family members of Happy Singh and the accused but involves society as well because if the people are permitted to put the live electric wire capable of taking the lives of others, society would be alarmed and there would be no safety to the lives of the citizens. Every person would be encouraged to take steps to protect his/her property by using dangerous means and that would be the end of the rule of the law. A person cannot protect his/her property from others by putting their lives at stake. Permitting the parties to compromise in this case will encourage the people to take the law into their own hands which is simply not permissible. 13. Keeping in view the gravity of the offence and its impact on society, the FIR cannot be quashed based on the settlement between the parties. 14. The reliance upon the judgments by the learned counsel for the petitioners is misplaced because as was rightly pointed out by Ms Avni Kochhar, learned Deputy Advocate General that none of these judgments deal with Section 304 of IPC and all of them deal with Section 304A of IPC, where the act of the accused was negligent. In the present case, there was no negligence but it was an act of deliberate setting up the live electric wire capable of taking the lives of the people after being fully aware that such a danger exists. 15. Consequently, the present petition fails and the same is dismissed. 16. The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, with the merits of the case.