Himachal Pradesh High Court

Bimla Devi And Others vs State Of Himachal Pradesh And Another on 1 August, 2017

Author:
Tarlok Singh Chauhan

Bench:
Tarlok Singh Chauhan

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

.

Cr.MMO No. 73 of 2017.

Date of decision: 01.08.2017.

Bimla Devi and others .....Petitioners.

Versus

State of Himachal Pradesh and another ..... Respondents.

Coram

The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.

Whether approved for reporting?1No
For the Petitioners : Mr. Ashok Kumar Verma, Advocate.

For the Respondents : Ms. Meenakshi Sharma, Addl. A.G.
with Mr. Ramesh Thakur, Dy. A.G., for
respondent No.1.

Mr. Devinder K. Sharma, Advocate,
for respondent No.2.

Tarlok Singh Chauhan, Judge (Oral).

When the matter came up on 11.7.2017, this Court passed the

following order:

"Looking to the nature of controversy, I feel it is a fit case
where parties can jointly sit down and settle the dispute.
Accordingly, Shri S.C. Sharma, Advocate, is appointed as
Mediator. Let, parties to appear before the learned Mediator
during the course of the day."

2. It is heartening to note that the parties have amicably settled

the dispute and have executed a compromise deed in the following terms:

"Compromise deed"

This deed of compromise is executed between Smt.
Bimla Devi, wife of Sh. Khayali Ram, Smt. Sunita Devi, wife of
Sh. Ramesh Chand, Ramesh Chand son of Sh. Khayali Ram,
Whether the reporters of the local papers may be allowed to see the Judgment?Yes

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residents of Village Manyoh,P.O. Tihra, Tehsil Sarkaghat,
District Mandi, H.P. (hereinafter referred to as first party) and

.

Sh. Parhalad Chand, son of Sh. Shankar Dass, R/o Village

Manyoh, P.O. Tihra, Tehsil Sarkaghat, District Mandi, H.P.
(hereinafter referred to as second party), on this 25th day of

July, 2017 on the following terms:

1. That both the parties have settled their disputes amicably
without any undue influence, coercion and fraud for the

reasons that they are neighbourer to each other.

2. That Smt. Bimla Devi, wife of late Sh. Khayali Ram has
lodged an FIR No. 199/2015, dated 10.8.2015, registered

at Police Station, Sarkaghat, District Mandi under
Sections
,
,
,
IPC and challan has been put in the
Court of Ld. Additional Chief Judicial Magistrate,
Sarkaghat, District Mandi, under
Sections 341
,
and
IPC against Sh. Parhalad Chand (second party) and is
fixed for hearing on 16.9.2017.

3. That the second party has also filed a private complaint No.
19 of 2015 titled as Parhalad Chand vs. Bimla Devi and

others, in the Court of Ld. Additional Chief Judicial
Magistrate, Sarkaghat, District Mandi, under
Sections 323
,
,
,
read with
Section 34
of IPC against the first
party. The first party has approached this Hon'ble High
Court for quashing the summons issued in the aforesaid
complaint.

4. That both the parties have agreed in principle to
compromise all the disputes between themselves amicably
and agreed not to pursue FIR and consequent proceedings
thereto and complaint filed against each other. Both the
parties are having no objection in case the FIR No.
199/2015, dated 10.8.2015 and subsequent proceedings
titled as State of H.P. vs. Parhalad Chand pending in the
Court of Additional Chief Judicial Magistrate, Sarkaghat,
and Criminal Complaint No. 19/2015 titled as Parhalad
Chand vs. Bimla Devi and Ors. are quashed in order to
keep peace, harmony and tranquility between the parties.

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5. That the first party have agreed to regulate the flow of
water of their house through a pipe which will be laid down

.

beneath the projection (Chajja) of the house of first party

and this underground pipe shall be laid down upto common
path existing upon the spot and it shall be further extended

upto road. Both the parties will make a request to
concerned Gram Panchayat to extend the flow of water
through pipe/drain from common path to main road. It is

pertinent to mention here that all the expenses shall be
beared upon by the first party for the construction of
aforesaid work and other party shall cooperate.

6. That the second party shall lay down a pipe from his house

to common chamber in order to channelize the water of his
house and shall bear the expenses for this work.

7. That both the parties have agreed not to interfere in the

possession of each other land and shall not cause any kind
of damage or loss in the land as well as house of each

other.

8. That the first party shall complete the aforesaid

construction of underground pipe by 31st December, 2017
at his own expenses whereas second party will duly

cooperate with the first party during construction work of
underground pipe.

9. That Sh. Ramesh Chand, son of late Sh. Khayali Ram, is
duly authorized by the representatives namely Smt. Bimla
Devi and Smt. Sunita Devi by way of Special Power of
Attorney dated 21.7.2017 to compromise all kind of
disputes on their behalf and the same is annexed herewith
alongwith this compromise deed.

Their joint statements will also become a part and
parcel of this compromise."

3. It would be noticed that as per the compromise deed, the

matter with regard to criminal cases as mentioned in paras 2 and 3 (supra)

are also required to be compromised. However, the moot question is

whether this is permissible in law.

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4. This question is no longer res integra in view of the judgment

laid down by the Hon'ble Supreme Court in Narinder Singh & Ors. V.

.

State of Punjab & Anr. JT 2014 (4) SC 573, wherein it was held as under:

"(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 t 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 of 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 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

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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 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 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."

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5. It would be seen that prior to Narinder Singh's case (supra),

.

a three Hon'ble Judges Bench had considered the relevant scope of

Section 482
and
Cr.P.C. in
Gian Singh versus State of Punjab and

another
(2012) 10 SCC 303 wherein it was 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 320
Cr.P.C. While

exercising inherent power of quashment under
Section 482
Cr.P.C., the

Court must have due regard to the nature and gravity of the crime and its

social impact. It warned the Courts, the High Court for quashing

proceedings in heinous and serious offences of mental depravity, murder,

rape, dacoity etc.

which principles have been reported and reaffirmed in

Narinder Singh
's case (supra).

6. Now the further question remains whether this Court can

quash the FIR where the petitioners have been charged under Sections

341, 323, 504, 506, 452 read with
Section 34
IPC. This question need not

detained this Court no longer in view of the judgment of the Hon'ble

Supreme Court in Dimpey Gujral, W/o
Vivek Gujral and others versus

Union Territory
through Administrator, UT, Chandigarh and others

(2013) 11 SCC 497 wherein the Hon'ble Supreme Court seized of a case

seeking quashment of FIR and its consequential proceedings wherein the

accused had been charged under
Sections 147
,
,
,
,
,
and
IPC and the Hon'ble Supreme Court after relying upon the

judgment of
Gian Singh
's case (supra) held as follows:-

"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'

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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
Gian Singh 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)

r to
"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 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 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
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

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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, the 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 Gian
Singh, 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 147
,
,
,
,
,
and
of the IPC at Police Station Sector 3,Chandigarh and all
consequential proceedings arising there from including the final
report presented under Section 173 of the Code and charges
framed by the trial court are hereby quashed."

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7. On the basis of the aforesaid exposition of law, this Court is of

the opinion that this is a case where the continuation of the 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 personal nature and

quashing FIR and proceedings would bring out peace between two sides.

8. In these circumstances, FIR No. 199/2015, dated 10.8.2015,

registered at Police Station, Sarkaghat, District Mandi under
Sections 341
,
,
,
IPC by Smt. Bimla Devi( petitioner herein) against the

respondent No.2 (herein) and criminal case pending in the Court of Ld.

Additional Chief Judicial Magistrate, Sarkaghat, District Mandi, under

Sections 341
,
and
IPC and private complaint No. 19 of 2015 titled

as Parhalad Chand vs. Bimla Devi and others, pending in the Court of Ld.

Additional Chief Judicial Magistrate, Sarkaghat, District Mandi, under

Sections 323, 452, 504, 506 read with
Section 34
of IPC against Smt.

Bimla Devi and others, are quashed. Resultantly, all the consequential

proceedings emanating from the aforesaid FIR and private complaint are

also quashed.

9. The petition is disposed of in the aforesaid terms, so also

the pending application(s) if any. The parties are left to bear their own

costs.

10. However, before parting, the Court places on record its

gratitude for the valuable assistance rendered by learned Mediator Shri

S.C. Sharma, Advocate in bringing the aforesaid compromise between

the parties.

August 1, 2017. (Tarlok Singh Chauhan),
(GR) Judge.

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