IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA [CASE NUMBER] . Date of Decision: 19.11.2018 [ENTITY] Petitioner. Versus [ENTITY] & others Respondent. Coram Hon'ble Mr. Justice [ENTITY], Judge. Whether approved for reporting1? Yes. For the petitioner : Mr. [ENTITY], Advocate. For the respondents : Mr. [ENTITY] and Mr. [ENTITY], r Additional Advocate Generals with Mr. [ENTITY], Deputy Advocate General, for the State. Mr. [ENTITY], Advocate, for respondent No.2. [ENTITY], J. (Oral)
By way of instant petition filed under [SECTION] of the [ACT], a prayer has been made on behalf of the petitioner-accused (hereinafter referred to as the accused) for quashing of the FIR No. 52 of 2016, dated 11.4.2016, under [SECTION] of [ACT] ( hereinafter referred to as '[ACT]') registered at Police Station Palampur, District Kangra, H.P., and consequent proceedings pending adjudication before the learned Additional Sessions Judge-III, Kangra at Dharamshala, District Kangra, Himachal Pradesh.
Whether reporters of the Local papers are allowed to see the judgment?
2. Mr. [ENTITY], learned counsel representing the petitioner-accused, while inviting attention of this Court to compromise, .
contended that both the parties have compromised the matter between themselves and they want to live peacefully in future and maintain cordial relation with each other. Mr. [ENTITY], further contended that since parties have arrived into an amicable settlement, without there being any pressure or influence on the complainant, the instant matter may be ordered to be compounded.
3. This Court with a view to ascertain the correctness and genuineness of the submissions having been made by the learned counsel for petitioner-accused as well as compromise placed on record also recorded statement of complainant Smt. [ENTITY], who is present in Court. Complainant [ENTITY] stated on oath that she has settled the matter with the petitioner-accused and now she does not want to pursue her complaint further and she has no objection in case the FIR No.52 of 2016 as well as consequent proceedings pending adjudication before the learned Additional Sessions Judge, Kangra at Dharamshala, District Kangra, H.P. against the petitioner-accused are quashed and set-aside. Her statement is taken on record.
4. I have heard learned counsel for the parties and gone through the record.
5. This Court, after having carefully perused the compromise, which has been duly effected between the parties, sees substantial .
force in the prayer having been made by the learned counsel for the petitioner-accused that offences in the instant case can be ordered to be compounded.
6. Since the application has been filed under [SECTION] [ACT], this Court deems it fit to consider the present application in the light of the judgment passed by Hon'ble Apex Court in [ENTITY] and others versus State of Punjab and another (2014)6 Supreme Court Cases 466, whereby Hon'ble Apex Court has formulated guidelines for accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings. Perusal of judgment referred above clearly depicts that in para 29.1, Hon'ble Apex Court has returned the findings that power conferred under [SECTION] of the Code is to be distinguished from the power which lies in the Court to compound the offences under [SECTION] of the Code. No doubt, under [SECTION] 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 great caution. Para Nos. 29 to 29.7 of the judgment are reproduced as under:-
"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] 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:
29.1Power conferred under [SECTION] of the Code is to be distinguished from the power which lies in the Court to compound the offences under [SECTION] of the Code. No doubt, under [SECTION] 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 under [SECTION] [ACT] 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 [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, 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] [ACT] would fall in the category of heinous and serious offences and therefore is 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] [ACT] 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] [ACT] 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] [ACT]. 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. 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] 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] 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 a conclusion as to whether the offence under [SECTION] [ACT] 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] [ACT] 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".
7. The Hon'ble Apex Court in case [ENTITY] v. State of Punjab and anr. (2012) 10 SCC 303 has held that power of the High .
Court in quashing of the criminal proceedings or FIR or complaint in exercise of its inherent power is distinct and different from the power of a Criminal Court for compounding offences under [SECTION] [ACT].
Even in the judgment passed in [ENTITY]'s case, the Hon'ble Apex Court has held that while exercising inherent power under [SECTION] [ACT] the Court must have due regard to the nature and gravity of the crime and its social impact and it cautioned the Courts not to exercise the power for quashing proceedings in heinous and serious offences of mental depravity, murder, rape, dacoity etc. However subsequently, the Hon'ble Apex Court in [PRECEDENT] through Administrator, UT, Chandigarh and Ors. [PRECEDENT] has also held as under:-
"7. In certain decisions of this Court in view of the settlement arrived at by the parties, this Court quashed the FIRs though some of the offences were non-compoundable. A two Judges' Bench of this court doubted the correctness of those decisions. Learned Judges felt that in those decisions, this court had permitted compounding of non-compoundable offences. The said issue was, therefore, referred to a larger bench.
The larger Bench in [ENTITY] v. State of Punjab (2012) 10 SCC 303 considered the relevant provisions of the Code and the judgments of this court and concluded as under: (SCC pp. 342-43, para 61)
61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under [SECTION] of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and .
circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like [ACT] or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre- dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from r commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the 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 him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding." (emphasis supplied)
8. In the light of the above observations of this court in [ENTITY], we feel that this is a case where the continuation of criminal proceedings would tantamount to abuse of process of law because the alleged offences are not heinous offences showing extreme depravity nor are they against the society. They are offences of a personal nature and burying them would bring about peace and amity between the two sides. In the circumstances of the case, FIR No. 163 dated 26.10.2006 registered under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] of the [ACT] at Police Station Sector 3, Chandigarh and all consequential proceedings arising there from including the final report presented under [SECTION] of .
the Code and charges framed by the trial Court are hereby quashed."
8. At this stage, Mr. [ENTITY], learned Additional Advocate General, while inviting attention of this Court to para No. 29.6 of the judgment passed by the Hon'ble Apex Court in [ENTITY]'s case, contended that offences under [SECTION] [ACT] would fall in the category of heinous and serious offences and as such, same is required to be treated as crime against the society and not against the individual alone.
9. True, it is that Hon'ble Apex Court in [ENTITY]'s case has held that offences under [SECTION] [ACT] would fall in the category of heinous and serious offences and is to be treated as crime against the society and not against the individual alone, but perusal of the subsequent observations made by the Hon'ble Apex Court in para-29.6 of the judgment, itself suggest that mere mentioning of [SECTION] [ACT] in the FIR or the charge, if any, framed under this provision would not bar the High Court to exercise his power under [SECTION] [ACT] while examining whether incorporation of [SECTION] [ACT] 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] [ACT]. Most importantly, in the aforesaid judgment, as referred above, Hon'ble Apex Court has observed that it would be open to the High Court to .
go by the nature of injuries sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. and in this regard medical report in respect of injuries suffered by the victim can generally be the guiding factor. The Hon'ble Apex Court has further held that 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.
10. At this stage, it would be profitable to take note of the judgment passed by the Hon'ble Apex Court in [ENTITY]'s case supra, wherein it has been held as under:-
"32. We find from the impugned order that the sole reason which weighed with the High Court in refusing to accept the settlement between the parties was the nature of injuries. If we go by that factor alone, normally we would tend to agree with the High Court's approach. However, as pointed out hereinafter, some other attendant and inseparable circumstances also need to be kept in mind which compels us to take a different view.
33. We have gone through the FIR as well which was recorded on the basis of statement of the complainant/victim. It gives an indication that the complainant was attacked allegedly by the accused persons because of some previous dispute between the parties, though nature of dispute, etc. is not stated in detail. However, a very pertinent statement appears on record viz. "respectable persons have been trying for a compromise up till now, which could not be finalized." This becomes an important aspect. It appears that there have been some disputes which led to the aforesaid purported attack by the accused on the complainant. In this context when we find that the elders of the village, including [ENTITY], intervened in the matter and the
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parties have not only buried their hatchet but have decided to live peacefully in future, this becomes an important consideration. The evidence is yet to be led in the Court. It has not even started. In view of compromise between parties, there is a minimal chance of the witnesses coming forward in support of the prosecution .
case. Even though nature of injuries can still be established by producing the doctor as witness who conduced medical examination, it may become difficult to prove as to who caused these injuries. The chances of conviction, therefore, appear to be remote. It would, therefore, be unnecessary to drag these proceedings. We, taking all these factors into consideration cumulatively, are of the opinion that the compromise between the parties be accepted and the criminal proceedings arising out of FIR No.121 dated 14.7.2010 registered with police station Lopoke, District Amritsar Rural be quashed. We order accordingly."
11. Though, perusal of FIR suggests that parties to the lis are husband and wife. It was alleged that husband of the complainant had attacked her by hitting his car with her scooty while she was on her way from Palampur to Kukaina with her sworn brother [ENTITY], but now complainant has resolved to settle the matter amicably for the better future of their children and as such, this becomes an important consideration. The evidence is yet to be led in the Court. In view of the compromise arrived inter se parties, there appears to be a minimal chance of the witnesses coming forward in support of the prosecution case, as such, chances of conviction appears to be remote and bleak.
In view of aforesaid development, it would be unnecessary to drag proceedings and it is in the interest of both the parties, if compromise placed on record is accepted. Otherwise also, record reveals that matrimonial disputes are pending in various courts inter-se parties, which are also being settled as has been stated by the complainant [ENTITY].
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12. Recently Hon'ble Apex Court in its latest judgment dated 4th October, 2017, titled as Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai .
Karmur and others versus State of Gujarat and Another, passed in [CASE NUMBER] arising out of [CASE NUMBER], reiterated the principles/ parameters laid down in [ENTITY]'s case supra for accepting the settlement and quashing the proceedings. It would be profitable to reproduce para No. 13 to 15 of the judgment herein:
r to "13. The same principle was followed in [PRECEDENT] by a bench of two learned Judges of this Court. In that case, the High Court had, in the exercise of its inherent power under [SECTION] quashed proceedings under [SECTION], [SECTION], [SECTION] and [SECTION] of the [ACT]. While allowing the appeal filed by the Central Bureau of Investigation Mr Justice [ENTITY] (as the learned Chief Justice then was) observed that the case involved allegations of forgery of documents to embezzle the funds of the bank. In such a situation, the fact that the dispute had been settled with the bank would not justify a recourse to thepower under [SECTION]:
" In economic offences Court must not only keep in view that money has been paid to the bank which has been defrauded but also the society at large. It is not a case of simple assault or a theft of a trivial amount; but the offence with which we are concerned is well planned and was committed with a deliberate design with an eye of personal profit regardless of consequence to the society at large. To quash the proceeding merely on the ground that the accused has settled the amount with the bank would be a misplaced sympathy. If the prosecution against the economic offenders are not allowed to continue, the entire community is aggrieved."
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14. In a subsequent decision in [PRECEDENT], the court rejected the submission that the first respondent was a woman "who was following the command of her husband" and had signed certain documents without being aware of the nature of the .
fraud which was being perpetrated on the bank. Rejecting the submission, this Court held that:
" Lack of awareness, knowledge or intent is neither to be considered nor accepted in economic offences. The submission assiduously presented on gender leaves us unimpressed. An offence under the criminal law is an offence and it does not depend upon the gender of an accused. True it is, there are certain provisions in [ACT] relating to exercise of jurisdiction Under [SECTION], etc. therein but that altogether pertains to a different sphere. A person committing a murder or getting involved in a financial scam or forgery of documents, cannot claim discharge or acquittal on the ground of r her gender as that is neither constitutionally nor statutorily a valid argument. The offence is gender neutral in this case. We say no more on this score "
" A grave criminal offence or serious economic offence or for that matter the offence that has the potentiality to create a dent in the financial health of the institutions, is not to be quashed on the ground that there is delay in trial or the principle that when the matter has been settled it should be quashed to avoid the load on the system "
15.The broad principles which emerge from the precedents on the subject may be summarized in the following propositions:
(i) [SECTION] 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;
(ii) 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
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governed by the provisions of [SECTION] of the [ACT]. The power to quash under [SECTION] is attracted even if the offence is non-compoundable.
(iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under [SECTION], the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;
(iv) 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;
(v) 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 r each case and no exhaustive elaboration of principles can be formulated;
(vi) In the exercise of the power under [SECTION] 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;
(vii) 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;
(viii) 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;
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(ix) 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
(x) There is yet an exception to the principle set out in propositions (viii) and (ix) 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.
13. Accordingly, in view of the averments contained in the application as well as the submission having been made by the learned counsel for the petitioner that the matter has been compromised, and keeping in mind the well settled proposition of law as well as the compromise being genuine, this Court has no inhibition in accepting the compromise and quashing the FIR as well as proceedings pending in the trial Court.
14. Consequently, in view of the peculiar facts and circumstances of the case, wherein parties have compromised the matter at hand, this Court while exercising power vested in it under [SECTION] [ACT], deems it fit to accept the prayer having been made by the learned counsel representing the petitioners.
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15. Accordingly, in view of the discussion made hereinabove, FIR No. 52 of 2016, dated 11.4.2016, under [SECTION] .
of [ACT], registered at Police Station Palampur, District Kangra, H.P., and consequent proceedings pending adjudication before the learned Additional Sessions Judge-III, Kangra at Dharamshala, District Kangra, Himachal Pradesh., are ordered to be quashed and set-aside.
The present petition is allowed in the aforesaid terms.
Pending application(s), if any, also stands disposed of.
Copy dasti.
19th November, 2018 ([ENTITY]), ([ENTITY]) Judge.