Court No. - 83
Case :- APPLICATION U/S 482 No. - 13705 of 2021 Applicant :- Arvind Kushwaha And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Awadhesh Kumar Shukla Counsel for Opposite Party :- G.A
Hon'ble Rajeev Misra,J.
1. Heard Mr. Awadhesh Kumar Shukla, learned counsel for applicants, learned A.G.A. for State and Mr. Ray Sahab Yadav, learned counsel, who has put in appearance on behalf of first informant-opposite party no. 2 by filing his vakalatnama in Court today, which is taken on record.
2. Perused the record.
3. This application under section 482 Cr.PC has been filed challenging Charge Sheet No. 16/2021 dated 19.1.2021 submitted in Case Crime No. 465 of 2020, under Sections 341, 384, 506 I.P.C., Police Station- Kotwali, District- Jhansi, and also Cognizance Taking Order/Summoning Order dated 30.1.2021 passed by Chief Judicial Magistrate, Jhansi in Criminal Case No. 846 of 2021 (State of U.P. vs. Virendra @ Veeru Kushwaha and others) under Sections 341, 384, 506 I.P.C., Police Station- Kotwali, District- Jhansi, arising out of above-mentioned case crime number, as well as entire proceedings of above-mentioned criminal case, now pending in the court of Chief Judicial Magistrate, Jhansi.
4. It transpires from record that an F.I.R. dated 26.9.2020 was lodged by first informant/opposite party-2, Shri Raghvendra Kushwaha, which was registered as Case Crime No. 0465 of 2020, under Sections 341, 384, 506 I.P.C., Police Station- Kotwali, District- Jhansi. In the aforesaid F.I.R., three persons, namely, Virendra @ Veeru Kushwaha, Brajendra Kushwaha and Arvind Kushwaha have been nominated as named accused.
5. In brief as per prosecution story as unfolded in FIR, it is alleged that named accused are muscle men. Their conduct is such which is not congenial to society. Accused persons habitually indulge in anti-social and criminal activities. Accused persons are further alleged to have committed criminality upon first informant in the manner as detailed in FIR.
6. After registration of aforesaid F.I.R., Investigating Officer proceeded with statutory investigation of same in terms of Chapter XII Cr.P.C. On the basis of material collected during course of investigation, Investigation Officer formed an opinion that a charge-sheet should be submitted against named accused. Accordingly, Investigating Officer submitted a charge-sheet dated 04.01.2019, whereby named accused, i.e., applicants herein have been charge-sheeted under Sections 341, 504 and 384 I.P.C.
7. Upon submission of above-noted charge-sheet, coginzance was taken upon same by Chief Metropolitan Magistrate, Kanpur Nagar vide Cognizance Taking Order dated 01.08.2019. Accordingly,Case No.3743 of 2019, (State Vs. Suresh Yadav and others), under Section 384 I.P.C., Police Station- Chakeri, District- Kanpur Nagar came to be registered. Court below vide Summoning Order dated 23.02.2019 summoned the applicants in above-noted case.
8. During pendency of above-mentioned criminal case before court below, parties amicably settled their dispute outside the Court. On the basis of settlement so arrived at between parties a compromise deed dated 28.9.2020 was drawn between the parties outside the Court. Photocopy of compromise deed dated 28.9.2020 is on record as Annexure-4 to the affidavit. On the basis of above-mentioned compromise, applicants who are charge-sheeted accused have now approached this Court by means of present application under section 482 Cr.P.C. seeking quashing of entire proceedings of above-mentioned criminal case.
9. On the aforesaid factual premise, it is urged by Mr. Awdhesh Kumar Shukla, learned counsel for applicants that dispute between parties is a purely private dispute. Once parties have entered into a compromise, no useful purpose shall be served by prolonging proceedings of above mentioned criminal case. Interest of justice shall better be served in case entire proceedings of above mentioned criminal case are quashed by this Court itself in exercise of its jurisdiction under Section 482 Cr. P. C, instead of relegating the parties to Court below.
10. Per contra, learned A.G.A. has opposed this application. Learned A.G.A. contends that applicants have been charge- sheeted under Section 384 I.P.C. An offence under Section 384 I.P.C. is a crime against society. He further contends that offence under Section 384 I.P.C. is a cognizable and non- bailable offence. He has then invited attention of Court to the order dated 9.12.2020 passed by a division Bench of this Court in Criminal Misc. Writ Petition No. 14441 of 2020, Virendra @ Veeru Kushwaha And 2 others vs. State of U.P. and 2 others, which is on record as Annexure-6 to the affidavit. For ready reference, same is reproduced hereinunder :-
"Counter-affidavit filed by Sri Piyush Kumar Shukla, learned counsel for the respondent no.3, is taken on record.
Heard learned counsel for the petitioners; learned A.G.A. for the respondents 1 and 2; and perused the record.
The instant petition seeks quashing of the first information report dated 26.09.2020 registered as Case Crime No. 465 of 2020, under Sections 341, 384, 506 IPC, P.S. Kotwali, District Jhansi.
The contention of the learned counsel for the petitioners is that although the allegations made in the impugned first information report disclose commission of cognizable offence but the parties have since entered into a compromise and therefore the impugned first information report be quashed.
In matters where a compromise has taken place during the course of investigation, the investigating officer can record the statement of the persons concerned including the victim. In case no evidence is forthcoming for prosecuting the accused, the Investigating Officer may submit a closure report as per law. But, whether a compromise has taken place or not and whether the parties are willing to lead evidence or not is to be determined after ascertaining whether such compromise has indeed taken place or not and whether it is with free consent of the parties.
As these are questions of fact, we deem it appropriate to dispose off this petition by observing that the Investigating Officer of the case shall examine the aforesaid aspects, after recording the statements, and submit police report as per law.
If, thereafter, the petitioners have any grievance, they would be at liberty to take recourse to appropriate remedy in appropriate jurisdiction. "
11. On the aforesaid premise, it is urged by learned A.G.A. that a Division Bench of this Court refused to quash the FIR on the basis of compromise.
12. It is then contended that charge-sheet has been submitted against applicants on the basis of material collected by Investigating Officer during course of investigation. First informant/opposite party-2, Shri Babu Jay Prakash and 5 others have been nominated as prosecution witnesses in the charge- sheet. He therefore, contends that compromise entered between the parties outside the Court during the course of investigation was not recognized by division Bench of this Court. No compromise application has been jointly filed by applicants and opposite party-2 before Court below. As such, alleged compromise entered into by the parties cannot be relied upon. On the aforesaid premise, it is urged by learned A.G.A. that present criminal misc. application under Section 482 Cr.P.C. is liable to be dismissed.
13. This Court is not unmindful of the following judgements of Apex Court:
1. B.S. Joshi and others Vs. State of Haryana and another (2003) 4 SCC 675
2. Nikhil Merchant Vs. Central Bureau of Investigation[2008)9 SCC 677]
3. Manoj Sharma Vs. State and others ( 2008) 16 SCC 1
4. Shiji @ Pappu and Others VS. Radhika and Another, (2011) 10 SCC 705
5. Gian Singh Vs. State of Punjab (2012) 10 SCC 303
6. K. Srinivas Rao Vs. D.A Deepa, (2013) 5 SCC 226
7. Dimpey Gujral and others Vs. Union Territory through Administrator, U.T. Chandigarh and others, (2013) 11 SCC 497
8. Narindra Singh and others Vs. State of Punjab ( 2014) 6 SCC 466
9. Yogendra Yadav and Ors. Vs. State of Jharkhand and another (2014) 9 SCC 653
10. C.B.I. Vs. Maninder Singh (2016) 1 SCC 389
11. C.B.I. Vs. Sadhu Ram Singla and Others, (2017) 5 SCC 350
12. Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Others Vs. State of Gujarat and another, (2017) 9 SCC 641
13. Anita Maria Dias and Ors. Vs. State of Maharashtra and Others, (2018) 3 SCC 290
14. State of M.P. VS. Dhruv Gurjar and Another, (2019) 5 SCC 570
15. State of M.P. V/s Laxmi Narayan & Ors., (2019) 5 SCC 688
16. Rampal Vs. State of Haryana, AIR online 2019 SC 1716
17. Arun Singh and Others VS. State of U.P. and Another (2020) 3 SCC 736 wherein the Apex Court has categorically held that compromise can be made between the parties even in respect of certain cognizable and non compoundable offences. In Dimpey Gujral (supra), it was held that heinous and serious offences of mental depravity, or offences like murder, rape, dacoity etc. cannot be quashed on the basis of compromise as same fall in the category of crime against society. It was however observed that court should bear in mind that if because of compromise between the parties, possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to accused by not quashing the criminal proceedings, then in that eventuality High Court should quash the proceedings on the ground of compromise. However, Apex Court in State of M.P. Vs. Laxmi Narayan (supra) has observed that no compromise can be made in respect of offences against society as they are not private in nature. Similarly in Ram Pal Vs. State of Haryana (supra) it has been held that no compromise can be made in cases relating to rape and sexual assault. Reference may also be made to the decision given by this Court in Shaifullah and others Vs. State of U.P. And another [2013 (83) ACC 278] in which the law expounded by the Apex court in some of the aforesaid cases has been explained in detail.
14. Recently Apex court in Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur (supra) has laid down the following guidelines with regard to quashing of criminal proceedings as well compromise in criminal proceedings in paragraphs 16 to 16.10 of the judgement, which read as under:
"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 recognizes 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. 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. 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."
15. Considering the facts and circumstances of case, submissions made by counsel for parties, it cannot be said that dispute between parties is a purely private dispute. Criminality alleged to have been committed by applicants is a crime against society. Moreover, compromise entered into by the parties is outside the Court. As such, alleged compromise cannot be relied upon. A division Bench of this Court has already refused to quash the FIR on the basis of compromise as evident from order dated 9.12.2020. Subsequent to order dated 9.12.2020, First informant/opposite party-2 has supported the prosecution story as unfolded in FIR in his statement under Section 161 Cr.P.C. recorded by Investigating Officer during course of investigation. Alleged compromise dated 28.9.2020 is prior to order dated 9.12.2020 passed by this Court.
16. In view of above, present application fails and is liable to be dismissed.
17. It is accordingly dismissed.
Order Date :- 12.8.2021 Shalini