Court No. - 83
Case :- APPLICATION U/S 482 No. - 7728 of 2021 Applicant :- Babbu And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Brijesh Kumar Pandey Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. B.K. Pandey, learned counsel for applicants, learned A.G.A. for State and Mr. Sunil Kumar Mishra, Advocate holding brief of Mr. U.C. Tiwari, learned counsel representing opposite party-2, who has put in appearance by filing his power 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.96 of 2011 dated 15.08.2011 submitted in Case Crime No.718 of 2011, under Sections- 323, 504 I.P.C., Police Station- Azim Nagar, District- Rampur, as well as entire proceedings of Sessions Trial No.295 of 2012, (State Vs. Babbu and others), under Sections- 308, 323, 504 I.P.C., Police Station- Azim Nagar, District- Rampur, arising out of above-mentioned case crime number, now pending in the court of Fast Track Court II, Rampur.
4. It transpires from record that an N.C.R. No.110 of 2011 dated 11.07.2011 was registered under Sections- 323, 504 I.P.C., Police Station- Azim Nagar, District- Rampur. Thereafter, on account of medical report of injured- Sher Ali, section 308 I.P.C. was added. Subsequently, an F.I.R. dated 15.08.2011 was lodged by first informant/opposite party-2, which was registered as Case Crime No.718 of 2011, under Sections- 308, 323, 504 I.P.C., Police Station- Azim Nagar, District- Rampur. In the aforesaid F.I.R., three persons, namely, Babbu, Nanhe and Rihasat have been nominated as named accused
5. After registration of aforesaid F.I.R., Investigating Officer proceeded with statutory investigation of Case Crime No.718 of 2011 in terms of Chapter XII Cr.P.C. On the basis of material collected during course of investigation, Investigating Officer formed an opinion that a charge-sheet should be submitted against named accused. Accordingly, Investigating Officer submitted a charge-sheet dated 15.08.2011, whereby named accused, i.e., applicants herein have been charge-sheeted under Sections- 308, 323, 504 I.P.C.
6. Upon submission of aforesaid charge-sheet, cognizance was taken upon same by court concerned vide Cognizance Taking Order dated 21.02.2012. Accordingly, Sessions Trial No.295 of 2012, (State Vs. Babbu and others), under Sections- 308, 323, 504 I.P.C., Police Station- Azim Nagar, District- Rampur came to be registered. Applicants are alleged to have been summoned by court below in above-mentioned sessions trial.
7. During pendency of above-mentioned sessions trial before court below, parties amicably settled their dispute outside the Court. On the basis of settlement so arrived at between parties an application 17.02.2021 was filed before court below along with an affidavit of first informant/opposite party-2, Mukhtar. Certified copy of application dated 17.02.2021 as well as affidavit filed in support thereof are on record as Annexure-6 to the affidavit. By means of aforesaid application, it was prayed that since compromise has been entered into between parties, case be terminated on the basis of compromise. As no orders have been passed by Court below on the basis of above- mentioned applicants, 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 proceedings of above mentioned criminal case in view of compromise so entered between parties.
8. On the aforesaid factual premise, it is urged by Mr. B.K. Pandey, 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 sessions trial. Interest of justice shall better be served in case, entire proceedings of above mentioned sessions trial 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.
9. Mr. Sunil Kumar Mishra, Advocate holding brief of Mr. U.C. Tiwari, learned counsel representing opposite party-2 does not oppose present application. He contends that once first informant/opposite party-2 has himself compromised with accused-applicants as is evidence from the application dated 17.02.2021, he cannot have any grievance in case entire proceedings of above-mentioned sessions trial are quashed by this Court. Upon instructions received from first informant/opposite party-2, he has further admitted the factum of compromise.
10. Per contra, learned A.G.A. has opposed this application.
Learned A.G.A. has invited attention of Court to the injury report of injured- Sher Ali, copy of which is on record as Annexure-3 to the affidavit. The doctor who has examined injured- Sher Ali has opined vide medical report dated 11.07.2011 that injured has sustained following injuries:-
(1) L/W 6x0.3 cm over RT side of head 5.5 cm above right eyebrow K/U/O Advice X-ray skull Ap fresh bleeding their.
(2) Abrasion 3x0.2 cm on right shoulder Top fresh bleeding.
(3) C/O Pain in shoulder joint Injury no.1 was K/U/O advise X-Ray.
11. Subsequently, supplementary medical report in respect of injured- Sher Ali was prepared, wherein doctor has opined that injury no.1 sustained by injured is grievous as X-ray of skull shows fracture of right parital and right temperal bones. 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.
12. 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.
13. 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."
14. Considering the facts and circumstances of case, submissions made by counsel for parties and material on record, the Court finds that injury no.1 sustained by injured- Sher Ali is grievous. As such, it cannot be said that dispute between parties is a purely private dispute and not a crime against society. At this stage, it would be relevant to reproduce paragraph-15.4 of the judgment in State of M.P. Vs. Laxmi Narayan and Others (supra), which reads as under:-
"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 crime 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. 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 framing 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. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge sheet is filed/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 paragraphs 29.6 and 29.7 of the decision of this Court in the case of Narinder Singh (supra) should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove;"
15. In view of above, proceedings of above-mentioned complaint case cannot be quashed, inasmuch as, injury no.1 sustained by injured- Sher Ali is grievous in nature and upon delicate part of body.
16. Consequently, present application fails and is liable to be dismissed
17. It is accordingly dismissed.
Order Date :- 30.7.2021 Saif