INTHEHIGHCOURTOFHIMACHALPRADESH, SHIMLA .
Cr.MMONo.433of2018 DateofDecision:24.10.2018 [ENTITY] Petitioner Versus StateofHimachalPradesh&Other Respondents Coram Hon'bleMr.[ENTITY]Judge.
Whetherapprovedforreporting1?Yes.
Forthepetitioner:Mr.[ENTITY]Advocate.
Fortherespondents: Mr.[ENTITY],Mr.[ENTITY] Mr. [ENTITY], Additional Advocate Generals,fortherespondentState.
Mr. [ENTITY], Advocate, for respondent No.2.
[ENTITY]J.(Oral) Bywayofinstantpetitionfiledunder[SECTION]ofthe CodeofCriminalProcedure,aprayerhasbeenmadeonbehalfof thepetitionerforquashingof[CASE NUMBER],dated13.09.2018, underSections[SECTION],[SECTION],[SECTION]ofIndianPenalCode(forshort 1Whether reporters of the Local papers are allowed to see the judgment?
'[ACT]'), registered at Police Station, Kandaghat, District Solan, H.P.,and consequential proceedings arising out of the aforesaid .
2. Mr. [ENTITY], learned counsel representingthepetitioneraccused,whileinvitingattentionofthis Court to compromise (Annexure P2 ),contended that both the partieshavecompromisedthematterbetweenthemselvesandas such,theywantto livepeacefullyinfutureandmaintaincordial relationwitheachother.Mr.[ENTITY],furthercontendedthatsince parties have arrived into an amicable settlement, without there being any pressure or influence on the complainant, the instant mattermaybeorderedtobecompounded.
3. ThisCourtwithaviewtoascertainthecorrectnessand genuinenessofthesubmissionshavingbeenmadebythelearned counsel for petitioneraccused as well as compromise placed on recordalso recorded statement of complainant Ms. [ENTITY], whoispresentinCourt.ComplainantMs.[ENTITY] oaththatshehassettledthematterwiththepetitioneraccused and she has no objection in case the FIR No.75 of 2018, dated 13.09.2018 under [SECTION], [SECTION], [SECTION] of [ACT] as well as consequent proceedings, if any, arising out of the aforesaid FIR .
against the petitioneraccused are quashed and setaside. Her statementistakenonrecord.
4. Ihaveheardlearnedcounselforthepartiesandgone throughtherecord.
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 petitioneraccused that offences in the instantcasecanbeorderedtobecompounded.
6. Since the petition has been filed under [SECTION] [ACT],thisCourtdeemsitfittoconsiderthepresentpetitionin 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 ApexCourthasformulatedguidelinesforacceptingthesettlement andquashingtheproceedingsorrefusingtoacceptthesettlement withdirectiontocontinuewiththecriminalproceedings.Perusalof judgmentreferredaboveclearlydepictsthatinpara29.1,Hon'ble ApexCourthasreturnedthefindingsthatpowerconferredunder .
[SECTION]oftheCodeistobedistinguishedfromthepowerwhich liesintheCourttocompoundtheoffencesundersection320ofthe Code.Nodoubt,undersection[SECTION]oftheCode,theHighCourthas inherent power to quash the criminal proceedings even in those caseswhicharenotcompoundable,wherethepartieshavesettled the matter between themselves. However,this power is to be as under:
29.Inviewoftheaforesaiddiscussion,wesumup andlaydownthefollowingprinciplesbywhichthe High Court would be guided in giving adequate treatmenttothesettlementbetweenthepartiesand exercisingitspowerunder [SECTION] oftheCode while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:
29.1Powerconferredunder [SECTION] oftheCode istobedistinguishedfromthepowerwhichliesin theCourttocompoundtheoffencesunder [SECTION]oftheCode.Nodoubt,under [SECTION]ofthe Code,theHighCourthasinherentpowertoquash thecriminalproceedingseveninthosecaseswhich 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.Whenthepartieshavereachedthesettlement andonthatbasispetitionforquashingthecriminal proceedingsisfiled,theguidingfactorinsuchcases wouldbetosecure:
(i)endsofjustice,or
(ii)topreventabuseoftheprocessofanyCourt.
While exercising the power under [SECTION] [ACT] the High Court is to form an opinion on eitheroftheaforesaidtwoobjectives.
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,foroffencesallegedtohavebeen committedunderspecialstatutelikethePrevention [ACT] or the offences committed by PublicServantswhileworkinginthatcapacityare not to be quashed merely on the basis of compromisebetweenthevictimandtheoffender.
29.4. On the other, those criminal cases having overwhelminglyandpredominantlycivilcharacter, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed whenthepartieshaveresolvedtheirentiredisputes amongthemselves.
29.5.Whileexercisingitspowers,theHighCourtis to examine as to whether the possibility of convictionisremoteandbleakandcontinuationof criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminalcases.
29.6. Offencesunder [SECTION] [ACT] would fall in the category of heinous and serious offences and thereforeistobegenerallytreatedascrimeagainst the society and not against the individual alone.
However,theHighCourtwouldnotrestitsdecision merely because there is a mention of [SECTION] [ACT]intheFIRorthechargeisframedunderthis provision. It would be open to the High Court to examineastowhetherincorporationof[SECTION] [ACT]isthereforthesakeofitortheprosecutionhas collectedsufficientevidence,whichifproved,would leadtoprovingthechargeunder [SECTION] [ACT].
Forthispurpose,itwouldbeopentotheHighCourt to go by the nature of injury sustained, whether suchinjuryisinflictedonthevital/delegatepartsof the body, nature of weapons used etc. Medical reportinrespectofinjuriessufferedbythevictim cangenerallybetheguidingfactor.Onthebasisof this prima facie analysis, the High Court can examineastowhetherthereisastrongpossibility of conviction or the chances of conviction are remoteandbleak.Intheformercaseitcanrefuseto 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 settlementbetweenthepartiesisgoingtoresultin harmony between them which may improve their futurerelationship.
29.7. While deciding whether toexercise 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 allegedcommissionofoffenceandthematterisstill underinvestigation,theHighCourtmaybeliberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reasonthatatthisstagetheinvestigationisstillon 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 .
benevolenceinexercisingitspowersfavourably,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 exercisingitspowerunder [SECTION] oftheCode, as in such cases the trial court would be in a positiontodecidethecasefinallyonmeritsandto comeaconclusionastowhethertheoffenceunder [SECTION] [ACT] is committed or not.
Similarly, in those cases where the conviction is alreadyrecordedbythetrialcourtandthematteris attheappellatestagebeforetheHighCourt,mere compromise between the parties would not be a groundtoacceptthesameresultinginacquittalof theoffenderwhohasalreadybeenconvictedbythe trialcourt.Herechargeisprovedunder[SECTION] [ACT]andconvictionisalreadyrecordedofaheinous crimeand,therefore,thereisnoquestionofsparing aconvictfoundguiltyofsuchacrime".
7. The Hon'ble Apex Court in case Gian Singh v.
State of Punjab and anr. [PRECEDENT] has held that poweroftheHighCourtinquashingofthecriminalproceedings or FIRor complaintinexercise of itsinherent power isdistinct 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 Courthasheldthatwhileexercisinginherentpowerunder[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,ChandigarhandOrs.(2013(11SCC497 hasalsoheldasunder: "7.IncertaindecisionsofthisCourtinviewofthe settlement arrived at by the parties, this Court quashedtheFIRsthoughsomeoftheoffenceswere noncompoundable. 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,referredtoalargerbench. ThelargerBenchinGianSinghv.StateofPunjab [PRECEDENT] considered the relevant provisions of the Code and the judgments of this court and concluded as under: (SCC pp. 34243, para61)
61.Thepositionthatemergesfromtheabove discussioncanbesummarisedthus:thepower of the High Court in quashing a criminal proceedingorFIRorcomplaintinexerciseof its inherent jurisdiction is distinct and differentfromthepowergiventoacriminal court for compounding the offences under [SECTION] oftheCode.Inherentpowerisof wide plenitude with no statutory limitation butithastobeexercisedinaccordwiththe 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 casespowertoquashthecriminalproceeding orcomplaintorF.I.Rmaybeexercisedwhere the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category canbeprescribed.However,beforeexerciseof such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and se serious impact on society. Similarly, any compromise between the victim and offender in relation to the offencesunderspecialstatuteslikePrevention ofCorruptionActortheoffencescommittedby public servants while working in that capacityetc;cannotprovideforanybasisfor quashingcriminalproceedingsinvolvingsuch offences. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the familydisputes wherethewrong is basically privateorpersonalinnatureandtheparties have resolved their entire dispute. In this category of cases, High Court may quash criminalproceedingsifinitsview,becauseof the compromise between the offender and victim,thepossibilityofconvictionisremote andbleakandcontinuationofcriminalcase would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal casedespitefullandcompletesettlementand compromise with the victim. In other words, the High Court must consider whether it wouldbeunfairorcontrarytotheinterestof .
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 wrongdoerandwhethertosecuretheendsof justice,itisappropriatethatcriminalcaseis puttoanendandiftheanswertotheabove question(s) is in affirmative, the High Court shallbewellwithinitsjurisdictiontoquash r thecriminalproceeding."(emphasissupplied)
8.Inthelightoftheaboveobservationsofthiscourt inGianSingh,wefeelthatthisisacasewherethe continuation of criminal proceedings would tantamounttoabuseofprocessoflawbecausethe alleged offences are not heinous offences showing extremedepravitynoraretheyagainstthesociety. Theyareoffencesofapersonalnatureandburying them would bring about peace and amity between thetwosides.Inthecircumstancesofthecase,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 includingthefinalreportpresentedunderSection 173 of the Code and charges framed by the trial Courtareherebyquashed."
8. Recently Hon'ble Apex Court in its latest judgment dated 4th October, 2017, titled as [PRECEDENT], passed in [CASE NUMBER] arising out of [CASE NUMBER], reiterated the principles/ parameters laid .
downinNarinderSingh'scasesupraforacceptingthe settlement and quashing the proceedings. It would be profitable to reproduce para No. 13 to 15 of the judgment herein:
"13.Thesameprinciplewasfollowedin [PRECEDENT] by a benchoftwolearnedJudgesofthisCourt.Inthatcase,the HighCourthad,intheexerciseofitsinherentpowerunder [SECTION]quashedproceedingsunderSections420,467,468 and 471 readwith [SECTION] ofthePenal Code. While allowing the appeal filed by the Central Bureau of Investigation Mr Justice [ENTITY] (as the learned Chief Justicethenwas)observedthatthecaseinvolvedallegations offorgeryofdocumentstoembezzlethefundsofthebank.In such a situation, the fact that the dispute had been settled withthebankwouldnotjustifyarecoursetothepowerunder [SECTION]:
" In economic offences Court must not only keep in viewthatmoneyhasbeenpaidtothebankwhichhas beendefraudedbutalsothesocietyatlarge.Itisnota caseofsimpleassaultoratheftofatrivialamount;but theoffencewithwhichweareconcernediswellplanned andwascommittedwithadeliberatedesign with an eye of personal profit regardless ofconsequenceto thesocietyatlarge.Toquashtheproceedingmerelyon the ground that the accused has settled the amount withthebankwouldbeamisplacedsympathy.Ifthe prosecution against the economic offenders are not allowedtocontinue,theentirecommunityisaggrieved."
14.InasubsequentdecisioninStateofTamilNaduv R VasanthiStanley (2016)1SCC376, thecourtrejected thesubmissionthatthefirstrespondentwasawoman"who wasfollowingthecommandofherhusband"andhadsigned certaindocumentswithoutbeingawareofthenatureofthe fraudwhichwasbeingperpetratedonthebank.Rejectingthe .
submission,thisCourtheldthat:
" Lackofawareness,knowledgeorintentisneitherto be considered nor accepted in economic offences. The submissionassiduouslypresentedongenderleavesus unimpressed.Anoffenceunderthecriminallawisan offenceanditdoesnotdependuponthegenderofan accused.Trueitis,therearecertainprovisionsinCode ofCriminalProcedurerelatingtoexerciseofjurisdiction Under [SECTION], etc. therein but that altogether pertains toa different sphere. A person committing a murder or getting involved in a financial scam or forgery of documents, cannot claim discharge or r acquittalonthegroundofhergenderasthatisneither constitutionally nor statutorily a valid argument. The offenceisgenderneutralinthiscase.Wesaynomore onthisscore "
" Agravecriminaloffenceorseriouseconomicoffence orforthatmattertheoffencethathasthepotentiality 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 matterhasbeensettleditshouldbequashedtoavoid theloadonthesystem "
15.The broad principles which emerge from the precedents on the subject may be summarized in the following propositions:
(i) [SECTION]preservestheinherentpowersoftheHigh Courttopreventanabuseoftheprocessofanycourtor to secure the ends of justice. The provision does not confer new powers. It only recognizes and preserves powerswhichinhereintheHighCourt;
(ii) TheinvocationofthejurisdictionoftheHighCourt to quash a FirstInformation Report or a criminal proceedingonthegroundthatasettlementhasbeen arrivedatbetweentheoffenderandthevictimisnotthe sameastheinvocationofjurisdictionforthepurposeof compoundinganoffence.Whilecompoundinganoffence, thepowerofthecourtisgovernedbytheprovisionsof .
[SECTION]oftheCodeofCriminalProcedure,1973.
Thepowertoquashunder[SECTION]isattractedeven iftheoffenceisnoncompoundable.
(iii) Informinganopinionwhetheracriminalproceedingor complaint should be quashed in exercise of its jurisdiction under [SECTION], the High Court must evaluate whether the ends of justice would justify the exerciseoftheinherentpower;
(iv) WhiletheinherentpoweroftheHighCourthasa wide ambit andplenitudeithastobeexercised;(i)to securetheendsofjusticeor(ii)topreventanabuseof theprocessofanycourt;
(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 eachcaseandnoexhaustiveelaborationofprinciplescan beformulated;
(vi) Intheexerciseofthepowerunder[SECTION]andwhile dealingwithapleathatthedisputehasbee inherent n settled, the High Court must have due regard to the natureandgravityoftheoffence. Heinousandserious offencesinvolvingmentaldepravityoroffencessuchas 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,notprivateinnaturebuthaveaserious impact upon society. Thedecision to continue with thetrialinsuchcasesisfoundedontheoverriding element of public interest in punishing persons for seriousoffences;
(vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominantelementofacivildispute.Theystandona distinctfootinginsofarastheexerciseoftheinherent powertoquashisconcerned;
(viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or .
similar transac mental tions with an essentially civil flavour may in appropriate situations fall for quashingwherepartieshavesettledthedispute;
(ix) Insuchacase,theHighCourtmayquashthecriminal proceedingifinviewofthecompromisebetweenthe disputants, the possibility of aconvictionisremote and the continuation of a criminal proceeding would causeoppressionandprejudice;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 wellbeing of the statehaveimplicationswhichliebeyondthedomainofa meredisputebetween private disputants. The High Courtwouldbejustifiedindecliningtoquashwherethe offenderisinvolvedinanactivityakintoafinancialor economicfraudormisdemeanour. Theconsequences oftheactcomplainedofuponthefinancialoreconomic systemwillweighinthebalance.
9. It is quite apparent from the aforesaid exposition of law that High Court has inherent power to quash criminal proceedings even in those cases which are not compoundable, but such power is to be exercised sparingly and with great caution. In the judgments, referred hereinabove, Hon'ble Apex Court has categorically held that Court while exercising inherent power under [SECTION] [ACT] must have due regard to the nature and gravity of offence sought to be compounded. Hon'ble Apex Court has though held that heinous and serious offences of mental depravity, murder, .
rape, dacoity etc. cannot appropriately be quashed though the victimorthefamilyofthevictimhavesettledthedispute,butit hasalsoobservedthatwhileexercisingitspowers,HighCourtis toexamineastowhetherthepossibilityofconvictionisremote and bleak and continuation of criminal cases would put the accusedtogreatoppressionandprejudiceandextremeinjustice would be caused to him by not quashing the criminal cases.
Hon'bleApexCourthasfurtherheldthatCourtwhileexercising powerunder[SECTION][ACT]canalsobeswayedbythefact thatsettlementbetweenthepartiesisgoingtoresultinharmony between them which may improve their future relationship.
Hon'bleApexCourtinitsjudgmentrenderedinStateofTamil Nadu supra, has reiterated that [SECTION] preserves the inherentpowersoftheHighCourttopreventanabuseofthe processofanycourtortosecuretheendsofjusticeandhasheld thatthepowertoquashunder[SECTION]isattractedevenif the offence is noncompoundable. In the aforesaid judgment Hon'ble Apex Court has held that while forming an opinion whetheracriminalproceedingsorcomplaintshouldbequashed .
inexerciseofitsjurisdictionunder[SECTION],theHighCourt must evaluate whether the ends of justice would justify the exerciseoftheinherentpower.
10. Consequently,inviewoftheavermentscontainedin thepetitionaswellasthesubmissionshavingbeenmadebythe learned counsel for the parties that the matter has been compromised,andkeepinginmindthewellsettledpropositionof lawaswellasthecompromisebeinggenuine,thisCourthasno inhibitioninacceptingthecompromiseandquashingtheFIRas wellasconsequentproceedingsarisingoutoftheaforesaidFIR.
11. Accordingly, in view of the detailed discussion made hereinaboveaswellaslawlaiddownbytheHon'bleApexCourt, [CASE NUMBER] dated13.09.2018,underSections[SECTION],[SECTION], [SECTION] [ACT], registered at Police Station, Kandaghat,District Solan H.P.,andconsequentproceedingsarisingoutoftheaforesaidFIR, arequashedandsetaside.
Thepresentpetitionisallowedintheaforesaidterms.
Pendingapplication(s),ifany,alsostandsdisposedof.
Copydasti.
October, 24, 2018 ([ENTITY]), (shankar) Judge. r to