Court No. - 52
Case :- APPLICATION U/S 482 No. - 4471 of 2018 Applicant :- Mahesh And 3 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Pankaj Kumar Sharma Counsel for Opposite Party :- G.A.,Ajay Kumar Pathak
Hon'ble Rajul Bhargava,J.
Sri Ajay Kumar Pathak, has filed vakalatnama alongwith short counter affidavit on behalf of the opposite party no. 2 which is taken on record.
Heard Sri Pankaj Kumar Sharma, learned counsel for the applicant, Sri Ajay Kumar Pathak, learned counsel for the opposite party no.2 and the learned A.G.A. for the State and perused the record.
The instant application has been filed seeking quashing of the proceeding of Sessions Trial No. 169 of 2003 (State Vs. Mahesh and others), arising out of Case Crime No. 952 of 2002, under Sections 307, 326, 308 and 324 IPC, Police Station Sikandra Rao, District Hathras (Mahamaya Nagar), on the ground that parties have entered into a compromise.
Learned counsel for the applicants states that the parties have entered into a compromise and proceedings in the case have been directed to be placed before the court concerned in Criminal Misc. Application No.2008 of 2018 by order dated 1.2.2018.
In the case of Narindra Singh and others Vs. State of Punjab (2014) 6 SCC 466 guidelines have been laid as to when criminal proceeding 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 judgement 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 herein above, and further it is not clear from the record whether any such compromise has been filed before the court below or not, therefore, the matter needs to be examined by the court below. It is thus provided that if any such compromise is produced by the applicants before the court concerned, within 15 days from today, the court concerned will prepare a report in the light of the observations made by the Apex Court in the case of Narindra Singh and others (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. After obtaining the aforesaid report the applicants would be free to approach this Court, again, with a prayer to quash the proceeding.
With the aforesaid observations/directions, the application stands disposed of.
Order Date :- 30.3.2018 MN/-