High Court can quash the criminal proceedings if it is known that because of the compromise arrived at between the parties, there is remote possibility of securing conviction of the accused: High Court of J&K and Ladakh

IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR Reserved on: 27.09.2021 Pronounced on:29.09.2021 CRMC No.269 2017 CRMC No.292 2017 Farooq Ahmad Khanday & Ors. Gowhar Ahmad Shah & Ors. ... Petitioner(s) Through: Mr. M. Ashraf Wani AdvocateThrough: Mr. Mir Suhail AAG. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR JUDGE In CRMC No.269 2017 petitioners have challenged FIR No.187 2017 for offences under Section 147 354 436 A RPC registered with Police Station Pampore. The impugned FIR has been lodged against the petitioners by Haseena Akhter who happens to be the wife of petitioner No.4 in CRMC No.292 2017. In CRMC No.292 2017 petitioners have challenged FIR No.42 2017 for offences under Section 447 452 379 and 427 RPC registered with Police Station Pampore which has been lodged at the instance of Farooq 2 CRMC No.262 2017 CRMC No.292 2017 Ahmad Khanday who happens to be the petitioner No.1 in CRMC Briefly stated the allegations in FIR No.187 2017 against the accused are that on 26.03.2017 while the complainant was collecting branches of apple trees in her orchard the accused persons washed their vehicles in the premises of the petrol pump near the orchard of the complainant whereafter they drained out the polluted waste water towards the orchard of the petitioner resulting in damage to the orchard. Aggrieved by this the complainant protested but she was assaulted by the accused and her clothes were torn out with the intention to outrage her modesty. The allegations levelled by the complainant in FIR No.42 2017 against the accused are that on 26.03.2017 when the complainant was present in his petrol pump the accused persons trespassed into his petrol pump gave a beating to him and damaged the glass panes and counter of the petrol pump. During the pendency of these two petitions the parties have entered into a compromise and have placed on record original compromise deed. As per this compromise deed which has been executed on 30th day of October 2018 the parties have settled their disputes amicably as they want to live peacefully without involving themselves in further litigation. It is further stated in the compromise deed that the executants do not want to pursue the impugned FIRs. The 3 CRMC No.262 2017 CRMC No.292 2017 compromise deed has been executed by Farooq Ahmad Khanday the complainant in FIR No.42 2017 and Haseena Akhter the complainant in FIR No.187 2017. They have also made statements before the Registrar Judicial on 24th March 2021 wherein they have admitted the contents of the deed of compromise as well as its execution. I have heard learned counsel for the parties and perused the record of the case. So far as the facts alleged in both the petitions particularly those pertaining to the compromise arrived at between the parties in terms of compromise deed dated 30.10.2018 are concerned the same are not disputed. However according to the petitioners some of the offences are non compoundable. In the backdrop of this position the question arises as to whether this Court has power to quash the proceedings particularly when some of the offences alleged to have been committed by the petitioners of both the petitions are non compoundable in nature. The Supreme Court in the case of Gian Singh. v. State of Punjab & another reported in10 SCC 303 while considering this aspect has observed as under: “57. 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 320 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 orto prevent abuse 4 CRMC No.262 2017 CRMC No.292 2017 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 Prevention of Corruption 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 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 5 CRMC No.262 2017 CRMC No.292 2017 Similarly the Supreme Court in the case titled Narinder Singh & Ors. Vs. State of Punjab & anr reported in6 SCC 466 has laid down guidelines for quashing of criminal proceedings. The guidelines are reproduced as under: “31. 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: I) 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. II) 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. III) 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. IV) 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 6 CRMC No.262 2017 CRMC No.292 2017 quashed when the parties have resolved their entire disputes among themselves. V) 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. VI) Offences under Section 307 IPC 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 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 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. VII) 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 the criminal to quash 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 7 CRMC No.262 2017 CRMC No.292 2017 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 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. From a perusal of the aforesaid observations of the Supreme Court it is clear that the offences arising out of matrimony relating to dowry or disputes which have predominantly civil flavour where the wrong is basically private or personal in nature and the parties have resolved their entire dispute the High Court will be within its jurisdiction to quash the criminal proceedings if it is known that because of the compromise arrived at between the parties there is remote possibility of securing conviction of the accused. In fact in such cases the Supreme Court has clearly observed that it would amount to extreme injustice if despite settlement having been arrived at by the parties the criminal proceedings are allowed to continue. Adverting to the facts of the instant case it is clear that the parties to the dispute i.e. complainants of both the impugned FIRs have entered into a compromise whereby they have decided not to pursue the 8 CRMC No.262 2017 CRMC No.292 2017 prosecution against accused in the FIRs. As is clear from the allegations made in the two FIRs it appears that the properties belonging to two rival groups are situated adjacent to each other. The prosecution launched by the parties against each other appears to have emanated from the disputes which are essentially civil in nature. Therefore once the rival groups have arrived at a settlement as regards the basis of the dispute allowing the prosecutions to continue merely because some of the offences alleged against the accused are non compoundable in nature would amount to great injustice to both the parties and in fact it will amount to frittering away the fruits of compromise that has been arrived at between the parties. The continuance of criminal proceedings against the petitioners of the two petitions in these circumstances will be nothing but an abuse of process of law. 10) Taking conspectus of the aforesaid discussion the petitions are allowed. Accordingly FIR No.187 2017 for offences under Section 147 354 436 A RPC and FIR No.42 2017 for offences under Section 447 452 379 and 427 RPC both registered with Police Station Pampore as also the proceedings emanating therefrom are quashed. Judge “Bhat Altaf PS” Whether the order is speaking: Yes No Whether the order is reportable: Yes No 

Summary: Offenses arising out of matrimony relating to dowry or disputes which have predominantly civil flavor where the wrong is basically private or personal in nature and the parties have resolved their entire dispute, the High Court will be within its jurisdiction to quash the criminal proceedings if it is known that because of the compromise arrived at between the parties, there is the remote possibility of securing the conviction of the accused as held by the High Court of J&amp;K and Ladakh in the case of Farooq Ahmad Khanday &amp; Ors Vs State of J&amp;K and anr [CRMC No.262/2017] and Gowhar Ahmad Shah &amp; Ors Vs State of J&amp;K and anr [CRMC No.292/2017] In CRMC No.269/2017, petitioners have challenged FIR No.187/2017 for offenses under Section 147, 354, 436-A RPC registered with Police Station, Pampore. In CRMC No.292/2017, petitioners have challenged FIR No.42/2017 for offenses under Section 447, 452, 379, and 427 RPC registered with Police Station, Pampore, which has been lodged at the instance of Farooq Ahmad Khanday, who happens to be the petitioner No.1 in CRMC No.269/2017. Briefly stated, the allegations in FIR No.187/2017 against the accused are that while the complainant was collecting branches of apple trees in her orchard, the accused persons washed their vehicles in the premises of the petrol pump near the orchard of the complainant where after they drained out the polluted wastewater towards the orchard of the petitioner resulting in damage to the orchard. Aggrieved by this, the complainant protested but she was assaulted by the accused and her clothes were torn out with the intention to outrage her modesty. The allegations leveled by the complainant in FIR No.42/2017 against the accused are that when the complainant was present in his petrol pump, the accused persons trespassed into his petrol pump gave a beating to him, and damaged the glass panes and counter of the petrol pump. During the pendency of these two petitions, the parties have entered into a compromise and have placed on record the original compromise deed. As per this compromise deed, the parties have settled their disputes amicably as they want to live peacefully without involving themselves in further litigation. It is further stated in the compromise deed that the executants do not want to pursue the impugned FIRs. The Hon’ble High Court after hearing both the parties and relying on the principles laid down in the case of Gian Singh. v. State of Punjab &amp; another and Narinder Singh &amp; Ors. Vs. State of Punjab &amp; Anr concluded that “It is clear that the offenses arising out of matrimony relating to dowry or disputes which have predominantly civil flavor where the wrong is basically private or personal in nature and the parties have resolved their entire dispute, the High Court will be within its jurisdiction to quash the criminal proceedings if it is known that because of the compromise arrived at between the parties, there is the remote possibility of securing the conviction of the accused. In fact, in such cases, the Supreme Court has clearly observed that it would amount to extreme injustice if despite settlement having been arrived at by the parties, the criminal proceedings are allowed to continue.”