Research › Search › Judgment

Punjab High Court · body

2024 DIGILAW 514 (PNJ)

Rakesh Das v. State of Haryana

2024-02-29

KULDEEP TIWARI

body2024
JUDGMENT : Kuldeep Tiwari, J. The amenability of all these petitions for being decided through a common verdict, stems from them being ingrained with common question(s) of law, besides emanates from identical relief(s) being craved to be reaped therein. 2. To be precise, all these petitions strive for partial quashing of FIRs, on the bedrock of partial compromises. There is no wrangle amongst the contesting litigants herein that, FIRs in all these petitions are yearned to be partially quashed, inasmuch as, not all the accused, as nominated in these FIRs, have been impleaded as petitioners therein, rather only some of the accused/petitioners herein, have entered into compromise with the complainant/private respondents concerned. Therefore, for the sake of brevity, the facts are being extracted from CRM-M-48043-2023, titled as “Rakesh Das V/s State of Haryana and Anr.”. PRAYER CLAUSE (IN CRM-M-48043-2023) 3. The instant petition aims at securing the relief of quashing of FIR No.89 dated 27.02.2015, under Sections 419, 420, 467, 468, 471, 120-B of the IPC, registered at P.S. DLF Phase-II, Gurugram, along with all consequential proceedings emanating therefrom, on the basis of Compromise dated 01.12.2022. 4. It would be apt to record at this juncture that, in the FIR (supra), there are total 07 accused, however, the present petition seeking quashing of FIR (supra) on the basis of compromise (supra), has been filed at the behest of only one of the accused, namely, Rakesh Das, whereas, the remaining accused have not been impleaded as a party either in the compromise (supra), or, in the instant petition. INESSENTIALITY OF FACTS 5. Reiteratedly, since the principal issue before this Court pertains to partial quashing of FIR, on the basis of partial compromise, therefore, it would be irrelevant to augment this reference verdict with facts. SUBMISSIONS OF THE LEARNED SENIOR COUNSEL FOR THE PETITIONER (IN CRM-M-48043-2023) 6. The learned senior counsel for the petitioner has, in his beseeching for grant of the desired relief(s), argued that since the role of the petitioner is segregable from his co-accused, therefore, the present FIR is fit for partial quashing qua the petitioner. SUBMISSIONS OF THE LEARNED SENIOR COUNSEL FOR THE PETITIONER (IN CRM-M-48043-2023) 6. The learned senior counsel for the petitioner has, in his beseeching for grant of the desired relief(s), argued that since the role of the petitioner is segregable from his co-accused, therefore, the present FIR is fit for partial quashing qua the petitioner. He has further argued that, once the complainant/private respondent concerned has entered into a compromise with the petitioner, therefore, there is no occasion for him/her to support the case of prosecution against the petitioner; rather it would be wastage of the precious time of Court to proceed further against the petitioner, as in such circumstances, there would only be a bleak chance of petitioner’s conviction. Consequently, subjecting the petitioner to trial, despite him being absolved by the complainant, would be a sheer abuse of the process of law. 7. Furthermore, the learned senior counsel for the petitioner has, while making heavy dependence upon the judgment rendered by the Hon’ble Supreme Court in case titled as “Gian Singh Vs. State of Punjab and Anr.”, 2012(4) RCR (Criminal) 543, argued that there is nothing recited in the Cr.P.C. which may be deemed to limit or affect the inherent powers of this Court to make such orders, as may be necessary to attain justice and to prevent the abuse of any Court. 8. Concisely, the learned senior counsel for the petitioner has, apart from making reference to the hereinafter captioned judgments, relied mainly upon paragraph No.57 of Gian Singh’s judgment (supra), to argue that since the present case does not fall in any of the exceptional clauses mentioned therein, therefore, the present FIR warrants its being quashed. “I. Jayrajsinh Digvijaysinh Rana v. State of Gujarat and Anr., 2012 (12) SCC 401 II. Ramgopal and Anr. v. State of Madhya Pradesh, 2021(4) RCR (Criminal) 332 III. Anil Kumar v. State of Punjab and Anr., 2023(4) RCR (Criminal 336) IV. Bhoj Raj v. State of Punjab and Anr., CRM-M-24945-2019 V. Vimal Kalra and Ors. v. State of Punjab and Ors., CRM-M20355-2022" CONCURRENT SUBMISSIONS OF ALL THE LEARNED COUNSELS FOR THE PETITIONER(S), LED BY MR. AKSHAY BHAN, SENIOR ADVOCATE FOR THE PETITIONER (in CRM-M-48043- 2023) 9. Anil Kumar v. State of Punjab and Anr., 2023(4) RCR (Criminal 336) IV. Bhoj Raj v. State of Punjab and Anr., CRM-M-24945-2019 V. Vimal Kalra and Ors. v. State of Punjab and Ors., CRM-M20355-2022" CONCURRENT SUBMISSIONS OF ALL THE LEARNED COUNSELS FOR THE PETITIONER(S), LED BY MR. AKSHAY BHAN, SENIOR ADVOCATE FOR THE PETITIONER (in CRM-M-48043- 2023) 9. It has been conjointly argued that since compromise is always in the interest of the civilized society, as it brings peace and harmony in the society, therefore, whether it is “partial” or “complete” compromise, the Court shall not, in exercise its power envisaged under Section 482 of the Cr.P.C., hesitate to order partial quashing of the FIR. It has further been argued that compromise always prevents further escalation and spread of conflict to the other dimensions of the society. When one expresses his willingness to compromise, he/she in fact has shown his/her willingness to understand the other perspective. 10. To strengthen the above made argument(s), reliance has been made upon case titled as “Mrs. Shakuntala Sawhney V. Mrs. Kaushalya Sawhney”, [ 1980 1 SCC 63 ], wherein, the Hon’ble Supreme Court, speaking through Justice Krishna Iyer, synopsized the essence of compromise in the hereinafter extracted manner:- “..The finest hour of justice arrives propitiously when parties, despite failing apart, bury the hatchet and weave a sense of fellowship of reunion..” 11. Lastly, it has been argued that, a larger Bench of this Court in case titled as “Kulwinder Singh & Ors. V/s. State of Punjab & Anr.”, (2007) SCC OnLine P&H 792, besides considering and reiterating the above principles, observed that “High Court has power under Section 482 of the Cr.P.C. to allow the compounding of non-compoundable offence and to quash the prosecution, where the High Court feels that the same is required to prevent the abuse of the process of any Court, and that, this power is not confined to matrimonial disputes alone..” The relevant portion of this judgment are extracted hereinafter:- “The power to do complete justice is the very essence of every judicial justice dispensation system. It cannot be diluted by distorted perceptions and is not a slave to anything, except to the caution and circumspection, the standards of which the Court sets before it, in exercise of such plenary and unfettered power inherently vested in it while donning the cloak of compassion to achieve the ends of justice. It cannot be diluted by distorted perceptions and is not a slave to anything, except to the caution and circumspection, the standards of which the Court sets before it, in exercise of such plenary and unfettered power inherently vested in it while donning the cloak of compassion to achieve the ends of justice. No embargo, be in the shape of Section 320(9) of the Cr.P.C., or any other such curtailment, can whittle down the power under Section 482 of the Cr.P.C. The compromise, in a modern society, is the sine qua non of harmony and orderly behaviour. It is the soul of justice and if the power under Section 482 of the Cr.P.C. is used to enhance such a compromise which, in turn, enhances the social amity and reduces friction, then it truly is “finest hour of justice”. Disputes which have their genesis in a matrimonial discord, landlord-tenant matters, commercial transactions and other such matters can safely be dealt with by the Court by exercising its powers under Section 482 of the Cr.P.C. in the event of a compromise, but this is not to say that the power is limited to such cases. There can never be any such rigid rule to prescribe the exercise of such power, especially in the absence of any premonitions to forecast and predict eventualities which the cause of justice may throw up during the course of a litigation. The only inevitable conclusion from the above discussion is that there is no statutory bar under the Cr.P.C. which can affect the inherent power of this Court under Section 482. Further, the same cannot be limited to matrimonial cases alone and the Court has the wide power to quash the proceedings even in non-compoundable offences notwithstanding the bar under Section 320 of the Cr.P.C., in order to prevent the abuse of law and to secure the ends of justice. The power under Section 482 of the Cr.P.C. is to be exercised Ex-Debitia Justitia to prevent an abuse of process of Court. There can neither be an exhaustive list nor the defined para-meters to enable a High Court to invoke or exercise its inherent powers. It will always depend upon the facts and circumstances of each case. The power under Section 482 of the Cr.P.C. has no limits. However, the High Court will exercise it sparingly and with utmost care and cau tion. It will always depend upon the facts and circumstances of each case. The power under Section 482 of the Cr.P.C. has no limits. However, the High Court will exercise it sparingly and with utmost care and cau tion. The exercise of power has to be with circumspection and restraint. The Court is a vital and an extra-ordinary effective instrument to maintain and control social order. The Courts play role of paramount importance in achieving peace, harmony and ever-lasting congeniality in society. Resolution of a dispute by way of a compromise between two warring groups, therefore, should attract the immediate and prompt attention of a Court which should endeavour to give full effect to the same unless such compromise is abhorrent to lawful composition of the society or would promote savagery.” APPOINTMENT OF AMICUS CURIAE IN THIS MATTER 12. This Court had, on 17.11.2023, while dealing with the issue of “partial quashing of FIR” based upon “partial compromise” (in CRM-M48043-2023), posed a specific query to the learned senior counsel appearing for the petitioner therein that “how in the absence of any of the judgments cited by him laying down any ratio about the effect of partial compromise upon the pendency of trial relating to other co-accused, the said petition would be maintainable, and that, this issue requires consideration”. 13. Thereafter, on the subsequent date of hearing therein, Mr. P.S. Ahluwalia, Advocate, was appointed as amicus curiae to assist this Court on the relevant subject. SUBMISSIONS OF THE LEARNED AMICUS CURIAE 14. The arguments made hereinabove by the learned counsel(s) for the petitioner(s) have been vociferously opposed by the learned amicus curiae in the hereinafter extracted manner. 15. Although the learned amicus curiae has admitted in principle the ratio of law, as laid down by the Hon’ble Supreme Court in Shakuntala Sawhney’s case (supra), and, by a Larger Bench of this Court in Kulwinder Singh’s case (supra), that “there is no fetter upon the inherent powers of High Court to quash non-compoundable offences, even other than matrimonial disputes, to secure justice and to prevent abuse of any Court”, however, he has argued that, in neither of these judgments, the repercussions of partial compromise upon the trial of other co-accused have been dealt with. 16. 16. In his conflicting the arguments of the learned counsel(s) for the petitioner(s), the learned amicus curiae has argued that the reliance, as made by petitioner(s) upon Jayrajsinh Digvijaysinh Rana’s case (supra) and upon Lovely Salhotra’s case (supra), is a totally misplaced reliance, inasmuch as, though FIRs have been quashed therein on the basis of partial compromises, however, in neither of these judgments, the moot question of law, i.e. “what would be the repercussions of partial compromise upon the trial of other co-accused” was framed or adjudicated. Therefore, by no stretch of imagination can these judgments be adverted to as the “binding precedent”. 17. Continuing his arguments, the learned amicus curiae has argued that, in none of the judgments (supra), as cited by the learned counsel(s) for the petitioner(s), any “ratio decidendi” can be culled out to answer the query (supra) of this Court. 18. The learned amicus curiae has proposed the hereinafter extracted issues for consideration and adjudication:- “(i) Whether, bearing in mind the repercussions attached to partial quashing of FIR, on the trial of other co-accused, can a partial compromise yet ably constitute the ground for quashing of FIR, only qua some of the accused ? (ii) Would partial quashing of criminal proceedings, on the strength of partial compromise, elevate the status of victim from that of a stakeholder to that of a driver of the criminal justice system?” 19. In his addressing arguments upon the dire need for adjudication of issue No. (i), the learned amicus curiae has submitted that, in the entire framework of the Code of Criminal Procedure, i.e. right from the stage of taking cognizance of offence under Section 190, upto the stage of compounding of offence under Section 320, the entire emphasis has been supplied on the “offence” and not the “offender”. He has further submitted that since the Indian Penal Code envisages myriad offences and their punishments, therefore, quashing of criminal proceedings only qua some of the accused, on the strength of partial compromise, shall have multiple ramifications on the remaining accused. To buttress this submission and to demonstrate the severe impact of partial quashing upon the trial of remaining accused, he has cited some of the examples, which are extracted hereinafter:- “a. The quashing of proceedings on the strength of a partial compromise may render the trial to suffer. To buttress this submission and to demonstrate the severe impact of partial quashing upon the trial of remaining accused, he has cited some of the examples, which are extracted hereinafter:- “a. The quashing of proceedings on the strength of a partial compromise may render the trial to suffer. To explain the same by way of an illustration: In a situation where a compromise takes place between a main accused who has been accused of committing an offence under S.326, IPC and the victim. The co-accused in this illustration has been made an accused persons on the strength of S.34, IPC - and the role ascribed to this accused is that of raising a “lalkara”. If in this case of this illustration, if the principal accused is exonerated on the strength of the partial compromise only qua him, it shall render it impossible for the trial to be conducted against the remaining accused person, who has been ascribed the role of raising a “lalkara”. It shall also not be possible for the Court to frame charges against the remaining accused person. A similar illustration albeit in a different context came to be considered by the Hon’ble Supreme Court in the case titled “Ranjit Singh v. State of Punjab” 1998 7 SCC 149 ; which is as follows: “21. But then one more question may survive. In a situation where the Sessions Judge notices from the materials produced but before any evidence is taken, that any other person should also have necessarily been made an accused (without which the framing of the charge would be defective or that it might lead to a miscarriage of justice), is the Sessions Court completely powerless to deal with such a contingency? One such situation is cited by the learned Judges through an illustration narrated in Kishun Singh case (1993) 2 SCC 16 : 1993 SCC (Cri) 470] as follows: (SCC pp. 29-30, para 15) “[W]here two persons A and B attack and kill X and it is found from the material placed before the Judge that the fatal blow was given by A whereas the blow inflicted by B had fallen on a non-vital part of the body of X. If A is not challaned by the police, the Judge may find it difficult to charge B for the murder of X with the aid of Section 34 IPC. If he cannot summon A, how does he frume the charge against B?” 22. Another instance can be this. All the materials produced by the investigating agency would clearly show the positive involvement of a person who was not shown in the array of the accused due to some inadvertence or omission. Should the court wait until evidence is collected to get that person arraigned in the case?” b. The quashing of the case only against the accused with whom the victim has entered into a compromise - shall also negatively impact the veracity of the truthfulness of the case. The quashing of a criminal case against the main accused in case of a partial compromise shall be a valid consideration for the Trial Court to not proceed against the other accused persons. It is submitted that in the given case, would it not be a travesty of justice if the person accused of minor offences shall continue to face the rigmarole of a criminal trial. In such circumstances, the Trial Court may also be faced with a situation where it shall be reluctant to convict the ancillary accused, when the principle accused person has been exonerated. c. Quashing criminal proceedings against the accused persons who have entered into a partial compromise - may also result in a situation where the accused entering into the compromise may tender an apology to the victim. This apology can also be construed to be the confession of guilt on account of the accused entering the compromise - especially when the confession of the co-accused becomes admissible in accordance with S.30 of the Indian Evidence Act - in cases pertaining to non-compoundable offences.” 20. This apology can also be construed to be the confession of guilt on account of the accused entering the compromise - especially when the confession of the co-accused becomes admissible in accordance with S.30 of the Indian Evidence Act - in cases pertaining to non-compoundable offences.” 20. Another relevant and significant example can be: “Supposedly, under the aid of Section 149 of the IPC, a number of accused persons are subjected to face trial for them being part of an unlawful assembly, however, during the course of trial, the main accused amongst them, to whom the fatal/main injury is attributed, enters into compromise with the victim/ complainant and seeks quashing of criminal proceedings qua him, then such partial compromise would have serious repercussions upon the remaining accused persons, who are facing trial primarily on account of the overt act committed by the main accused.” The list of such examples goes on and on and there are no hard and fast rules/guidelines governing the partial quashing of criminal proceedings. 21. Proceeding towards issue No.(ii), the learned amicus curiae has submitted that, by virtue of the Amendment Act No.05 of 2009, a victim becomes a stakeholder in the process of a criminal trial. In the entire framework of the Code of Criminal Procedure, various rights have been conferred on the victim, with the right of being represented by a counsel under Section 24(8) of the Cr.P.C., to the right of being compensated under Section 357 of the Cr.P.C. Moreover, Section 372 of the Cr.P.C. bestows a right upon victim to appeal against the order of acquittal of accused. 22. The learned amicus curiae has, by citing to the rights (supra) of victim, submitted that the law recognizes the participation of victim only as a stakeholder, however, permitting partial quashing of criminal proceedings, at the whims of victim/complainant, would elevate his/her status to that of a driver of the criminal justice system, which in fact cannot be construed to be the underlying object of the Code of Criminal Procedure. A NALYSIS/ REASONS FOR REFERRAL 23. This Court has heard the arguments made by the learned counsels appearing for the parties. A NALYSIS/ REASONS FOR REFERRAL 23. This Court has heard the arguments made by the learned counsels appearing for the parties. Insofar as Jayrajsinh Digvijaysinh Rana’s case (supra) is concerned, which is relied upon by the petitioner(s), it is apparent that the Hon’ble Supreme Court had, after taking into account the facts of that case, proceeded to quash the FIR therein, only on the basis of partial compromise alone, however, neither of the moot issues, as raised hereinabove were either framed or adjudicated therein. Therefore, this Court is in agreement with the submissions made by the learned amicus curiae that neither any “ratio decidendi” can be culled out from Jayrajsinh Digvijaysinh Rana’s case (supra), nor it can be adverted to as a “binding precedent”. 24. This Court has also examined the other judgments, as cited by the petitioner(s), wherein, the Hon’ble Supreme Court and the Co-ordinate Bench(es) of this Court have proceeded to quash FIRs on the basis of partial compromises, however, the same are also drawn in a similar fashion as Jayrajsinh Digvijaysinh Rana’s case (supra), inasmuch as, there is absolute dearth of any “ratio decidendi” becoming laid therein, which may meet the query of this Court. Consequently, none of the judgments cited by the petitioner(s) could be taken to be the “binding legal precedent” on the subject at hand. 25. Moreover, this Court has also examined the judgments cited by the learned amicus curiae, details whereof are tabularized hereinafter. In some of these judgments, the Co-ordinate Benches of this Court have al lowed partial quashing of FIR, on the basis of partial compromise, whereas, in some of these judgments, the said relief has been declined. “Judgments wherein partial quashing has been allowed. S.No. Case Title Citation Date 1. Harvinder Singh and Ors. V. State of Haryana and Anr. 2022 SCC OnLine P&H 3114 03.11.2022 2. Sarabjeet Singh V. State of Punjab 2007 (3) RCR (Criminal) 479 01.05.2007 3. Gurtej Singh V. State of Haryana 2010 (3) RCR (Criminal) 660 26.03.2010 4. Joginder Singh and Anr. V. State of Punjab and Anr. CRM-M-23739- 2010 27.04.2011 5. Baldev Singh and Anr. V. State of Punjab and Anr. CRM-M-46037- 2021 04.04.2022 6. Malak Singh V. State of Punjab CRM-M-8999- 2020 09.02.2023 7. Harsimran Singh V. State of Punjab CRM-M-14035- 2022, CRM-M-6962- 2020 24.04.2022 8. Joginder Singh and Anr. V. State of Punjab and Anr. CRM-M-23739- 2010 27.04.2011 5. Baldev Singh and Anr. V. State of Punjab and Anr. CRM-M-46037- 2021 04.04.2022 6. Malak Singh V. State of Punjab CRM-M-8999- 2020 09.02.2023 7. Harsimran Singh V. State of Punjab CRM-M-14035- 2022, CRM-M-6962- 2020 24.04.2022 8. Parambir Singh Gill V. Malkiat Kaur (2010) 1 RCR (Criminal) 256 12.05.2009 Judgments wherein partial quashing has been declined. S.No. Case Title Citation Date 1. Manohar Singh Manohari V. State of Punjab CRM-M-36765- 2011 27.11.2012 2. Manjinder Kaur V. State of Punjab CRM-M-32486- 2015 25.07.2017 3. Navdeep Kumar and Anr. V. State of Haryana and Anr. CRM-M-42254- 2013 12.11.2014 26. In summa, when there are no explicit guidelines/”ratio decidendi”/”legal precedent” governing the issue of partial quashing of criminal proceedings, on the basis of partial compromise, coupled with the fact that conflicting views are adopted by Co-ordinate Benches of this Court, in the hereinabove cited judgments, this Court deems it fit and appropriate to refer the following issues for adjudication to a Larger Bench of this Court:- “(i) Whether, bearing in mind the repercussions attached to partial quashing of FIR, on the trial of other co-accused, can a partial compromise yet ably constitute the ground for quashing of FIR, only qua some of the accused ? (ii) Would partial quashing of criminal proceedings, on the strength of partial compromise, elevate the status of victim from that of a stakeholder to that of a driver of the criminal justice system?” 27. A photocopy of this order be placed on file of each connected case.