Court No. - 44
Case :- APPLICATION U/S 482 No. - 31250 of 2016 Applicant :- Jhinak @ Omprakash And 2 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Bipin Kumar Tripathi Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. B.K. Tripthai, learned counsel for the applicants, the learned A.G.A. for the State and Mr. R.S. Tiwari holding brief of Mr. V.K. Dwivedi, Advocate, learned counsel appearing for opposite party No.2.
This application under Section 482 Cr.P.C. has been filed challenging the proceeding of S.T. No.32/2000 (State Vs. Jhinak and others), under Sections, 323, 308, 325, 504 and 506 I.P.C. P.S. Kotwali, District Maharajganj, pending in Court of the Additional Sesssions Judge, Court No.2, Maharajganj, pursuant to the impugned charge sheet, the cognizance taking order dated 10.07.2000. In view of the settlement so entered into between the parties.
The present application came up for admission on 18.10.2016 and this Court passed the following order:-
"Heard learned counsel for the applicant, Sri V.K. Dwivedi learned counsel for O.P. No.2 and the learned A.G.A.
The instant application under Section 482 Cr.P.C. has been filed seeking quashing of the entire proceedings of S.T. No.32/2000 (State vs. Jhinak and others), arising out of Case Crime No.393/1995, under Sections 323, 308, 325, 504, 506, IPC pending in the court of Addl. Sessions Judge (Court No.2), Maharajganj in view of the recorded compromise between the parties and the law laid down in the case of Narendra Singh and others v. State of Punjab, 2014 (6) SCC 466.
No doubt, the offence punishable under Section 308 IPC is not compoundable, but this Court in exercise of inherent power can always consider the quashing of the proceedings even in respect of offences which are non compoundable, on the basis of a compromise between the parties. It be not lost sight of that an offence under Section 308 IPC is less heinous in contrast to Section 307 IPC, as an offence under Section 307 IPC carries a life sentence, whereas an offence under Section 308 IPC is punishable upto a term which may extend to 7 years only. Thus, there is no reason as to why the observations made by the Apex court in the case of Narendera Singh (supra) made in reference to Section 307 IPC would not hold god for an offence under Section 308 IPC.
In the case of Narendra Singh (supra), guidelines have been laid as to when criminal proceedings including for an offence punishable under Section 307 IPC, can be quashed in proceedings under Section 482 Cr.P.C. on the ground of a compromise between the parties. The guidelines laid in the said judgment are contained in paragraph 29 of the report, which provides as follows:-
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 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 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 pre-dominantly 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/delicate 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 later 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. 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."
As the entire material brought on record is not sufficient for this Court to draw satisfaction whether the instant case is a fit case where the proceeding of the court below should be quashed in the light of the observations made by the apex court, noticed hereinabove, the matter is remanded back to the court of Additional Session Judge, Agra to prepare a report in the light of the observations made by the Apex Court in the case of Narendra Singh (Supra) with regards to:
(a) the nature of the injuries caused on the victim(s);
(b) the nature of the weapon by which such injuries were caused;and
(c) the stage at which the trial is, as also whether the statement of the witnesses have so far been recorded or not.
Such report shall be prepared by the court below within a period of four weeks from the date a certified copy of this order is furnished before the court below. While preparing the report, the court below will also mention whether the alleged compromise has been admitted by the parties including the victim(s) before it or not. In fact, before proceeding to prepare a report to the above effect, the court below will secure the presence of the parties including victim(s) to verify the alleged compromise.
List on 21.11.2016 along with the report of the court below before the appropriate Bench.
Till then, no coercive action shall be taken against the applicants."
Pursuant to the aforesaid order dated 18.10.2016, the matter was referred to the Court below to verify the compromise, if any, entered between the parties.
Consequently, the Additional District and Sessions Judge, Court No.2, Maharajganj has submitted his report dated 21.11.2016 to this Court whereby the compromise so entered between the parties has been duly verified.
Learned counsel for the applicants has invited the attention of the Court to the order dated 23.02.2016 passed by this Court in Criminal Misc. Application No.5509/2016 (Nemichand Vs. State of U.P. and Another) to submit that compromise can be made even in respect of the matters covered under Section 308 I.P.C.
Mr. R.S. Tiwari holding brief of Mr. V.K. Dwivedi, learned counsel appearing for the opoposite party No.2 as well as the learned A.G.A do not dispute that matters covered under Section 308 I.P.C. can also be compromised and the compromise so entered between the parties will not be inderogation of the law as laid down by the Apex Court in respect of the category of cases in which compromise can not be made.
On the aforesaid factual premise, learned counsel for the applicants submits that since the parties to the dispute are related to each other and they have amicably settled their disputes by means of compromise duly verified by the Court below the proceedings of the above mentioned State case may be quashed by this Court in exercise of its jurisdiction under Section 482 Cr.P.C. to do complete justice between the parties.
Mr. R.S. Tiwari, Advocate holding brief of Mr. V.K. Dwivedi, learned counsel appearing for the opposite party No.2 does not dispute the factum of the compromise so entered between the parties and verified by the Court below. He further submits that in view of the compromise so entered between the parties, the opposite party No.2 does not have any surviving cause of action to pursue the State case which has come into existence on the basis of the F.I.R. lodged by him.
This Court is not unmindful of the judgements of the Apex Court in the cases of:
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. Gian Singh Vs. State of Punjab (2012) 10 SCC 303
5. Narindra Singh and others Vs. State of Punjab ( 2014) 6 SCC 466.
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. 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 the aforesaid cases has been explained in detail.
Considering the facts and circumstances of the case, as noted herein above, and also the submissions made by the counsel for the parties, the court is of the considered opinion that no useful purpose shall be served by prolonging the proceedings of the above mentioned complaint case.
Accordingly, the proceedings of S.T. No.32/2000 (State Vs. Jhinak and others), under Sections, 323, 308, 325, 504 and 506 I.P.C. P.S. Kotwali, District Maharajganj, pending in Court of the Additional Sesssions Judge, Court No.2, Maharajganj, are hereby quashed.
The application is, accordingly, allowed. There shall be no order as to costs.
Order Date :- 18.8.2018 cks