Allahabad High Court

Km. Madhu Bala Mishra And 3 Others vs State Of U.P. And Another on 21 September, 2023

Author:
Dinesh Pathak

Bench:
Dinesh Pathak

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Neutral Citation No. - 2023:AHC:184481

Court No. - 90

Case :- APPLICATION U/S 482 No. - 3174 of 2023

Applicant :- Km. Madhu Bala Mishra And 3 Others

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- J.B. Singh,Ajit Kumar Srivastava

Counsel for Opposite Party :- G.A.,Awadhesh Kumar Mishra,Vijay Kumar

Hon'ble Dinesh Pathak,J.

1. Supplementary affidavit filed on behalf of applicants, which is taken on record.

2. Heard learned counsel for the applicants, learned AGA for the State as well as learned counsel for the opposite party no.2 and perused the record.

3. The present applicants have invoked the inherent power of this Court under
Section 482
Cr.P.C. beseeching the quashing of impugned charge sheet No.18 of 2005 dated 05.11.2005 as well as entire proceeding of Case No.1159 of 2005 (
State Vs. Madhu Bala and others
), arising out of Case Crime No.248-C of 2005, under
Sections 420
,
,
,
,
,
I.P.C., Police Station Nagina, District Bijnor, pending in the court of Additional Chief Judicial Magistrate, Nagina (Bijnor) on the basis of compromise.

4. Opposite party no. 2 has lodged an F.I.R. being Case Crime No.248-C of 2005 levelling allegation of cheating and forgery against the applicants. During pendency of the case, both the parties have amicably settled their dispute. On the request made on behalf of learned counsel for the parties, this Court has considered the amicable settlement and passed the order dated 15.02.2023 for verification of compromise which is quoted hereinbelow:-

"List revised.

Heard Sri J.B. Singh, learned counsel for the applicants, Sri Awadhesh Kumar Mishra, learned counsel for the opposite party no. 2, Ms. Arti Agarwal, learned counsel for the State and perused the record.

The present application under
Section 482
Cr.P.C. has been filed by the applicants Km. Madhu Bala Mishra, Ravindra Kumar Bishnoi alias Radhey Bishnoi, Gopal Singh and Smt. Kusum Devi with the following prayers :-

"It is therefore most respectfully prayed that this Hon'ble Court may graciously be pleased to allow this application and quash the impugned charge sheet no. 18 of 2005 dated 05.11.2005 as well as entire proceeding of Case No. 1159 of 2005(
State vs. Madhu Bala & others
) arising out of Case Crime No. 248-C of 2005, under
Section 420
/
/
/
/
/
I.P.C., Police Station Nagina, District Bijnore, against the applicants.

It is further prayed that this Hon'ble Court may kindly be pleased to stay the further proceeding of Case No. 1159 of 2005, (
State vs. Madhu Bala & others
) arising out of Case Crime No. 248-C of 2005, under
Section 420
/
/
/
/
/
I.P.C., Police Station Nagina, District Bijnore, against the applicants pending before Additional Chief Judicial Magistrate Nagina (Bijnore) during pendency of present application. And or may pass such other and further order/orders which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case. Otherwise applicants shall suffer irreparable loss and injury."

Learned counsel for the applicants argued that it is common ground between the parties that the parties have entered into compromise which has been field as annexure no. 8 to the affidavit which is dated 16.11.2022. It is argued that since the parties have entered into compromise the proceedings pending before the trial court be quashed.

Learned counsel for the opposite party no. 2 while placing paragraph nos. 3, 4, 5 and 6 of his short counter affidavit dated 27.1.2023, has argued that the parties have entered into compromise and they have settled their disputes.

The allegations in the F.I.R. would go to show that the dispute is with regards to money in a society. The applicants had earlier approached this Court against the bailable warrants issued against them through Application U/S 482 No. 35922 of 2022 (
Km. Madhu Bala Mishra and 3 others vs. State of U.P. and another
), in which this Court on 06.1.2023 had passed the following orders:-

"Sri Rajendra Kumar Singh, learned counsel for the applicants and Sri S.B. Maurya, learned counsel for the State are present.

The present application under
Section 482
Cr.P.C. has been filed by the applicant- Km. Madhu Bala Mishra, Ravindra Kumar Vishnoi @ Radhe Vishnoi, Gopal Singh and Smt. Kusum Devi with the prayer to allow this application and quash the bailable warrant against the applicants from 06.06.2022 to till date passed by Court of Additional Chief Judicial Magistrate, Nagina (Bijnor) in Case No. 1159 of 2005 (
State Vs. Madhu Bala Mishra and others
) arising out of Case Crime No. 248-C/2005, under
Section 420
,
,
,
,
,
I.P.C., registered at Police Station Nagina, District Bijnor, pending in the Court of Additional Chief Judicial Magistrate, Nagina (Bijnor).

Learned counsel for the applicants states that earlier the applicants had filed an Application U/S 482
Cr.P.C
. No. 24252 of 2007 in which there was an interim order but subsequently the same was dismissed as infructuous as well as for want of prosecution as no one could appear to press the same vide order dated 30.11.2021, the copy of the order has been annexed as Annexure-10 to the affidavit. It is argued that in the meantime, bailable warrants have been issued against the applicants on 06.06.2022 which are continuing till date and a statement at bar has been given that now non-bailable warrants have been issued against the applicants.

In view of the same, looking to the limited prayer made by learned counsel for the applicants it is provided that in the event the applicants appear and apply for bail before the court below within a period of three weeks, the same shall be decided in accordance with law. For a period of three weeks non-bailable warrant as issued is directed to be kept in abeyance.

However, if the applicants fail to appear before the concerned court and apply for bail within the period as mentioned aforesaid, the trial court shall proceed in accordance with law against them.

The petition stands disposed of with the aforesaid direction."

Learned counsel for the applicants states that the said order has not complied with by the applicants till date.

Looking to the facts of the case, compromise between the parties and nature of dispute, it is provided that the said compromise be verified by the concerned which shall be filed by the applicants before it within three weeks, which shall be verified by the court concerned within three weeks thereafter, subject to the applicants complying with the order dated 6.1.2023 passed by this Court in Application U/S 482 No. 35922 of 2022 (
Km. Madhu Bala Mishra and 3 others vs. State of U.P. and another
). The court concerned shall send its report thereafter to this Court regarding verification of the said compromise.

Let the matter be listed on 13.4.2023. "

5. In pursuance of the order dated 15.02.2023 passed by this Court, Additional Chief Judicial Magistrate has submitted verification report dated 11.05.2023 along with the compromise application supported by affidavit dated 11.05.2023 and the verification order dated 11.05.2023, which has been endorsed on the back side of the first page of the compromise.

6. Perusal of the compromise verification order dated 11.05.2023 reveals that both the parties (first informant and all the accused) have appeared before the court concerned personally and have been identified by their respective counsels. It has been observed that the compromise has been inked between the parties and, accordingly, the compromise has been verified by the court concerned.

7. Perusal of the compromise application reveals that it bears the signature of all the parties and the photographs of all the signatories are affixed on the first page of the compromise.

8. Learned counsel for the applicants submits that, in the above eventuality of the compromise took place between the parties and the compromise verification order dated 11.05.2023 filed along with the supplementary affidavit, the instant application may be allowed and the criminal proceeding initiated against the present applicants may be quashed. It is further submitted that both the parties have buried the hatchet and there is no grudges between them against each other. To quash the entire proceeding, learned counsel for the applicants has relied upon the following judgments of the Hon'ble Apex Court :-

(i) B.S.Joshi & Others Vs. State of Haryana & Others; (2003) 4 SCC 675.

(
ii) Nikhil Merchant Vs. Central Bureau of Investigation
; (2008) 9 SCC 667.

(
iii) Manoj Sharma Vs. State & Others
; (2008) 16 SCC 1.

(iv) Gyan Singh Vs. State of Punjab (2012) 10 SCC 303.

(v) Narindra Singh & Others Vs. State of Punjab (2014) 6 SCC 466.

9.
In a recent judgment passed by a Three Judges' Bench of the Apex Court in the Case of Parbatbhai Aahir alias
Parbatbhai Bhimsinhbhai Karmur and others Vs. State of Gujarat and another
, reported in AIR 2017 SC 4843, Hon'ble Supreme Court has summarized the ratio of all the cases decided earlier with respect to quashing of F.I.R./charge-sheet/criminal proceeding on the ground of settlement between the parties and expounded the ten categories in which application under
Section 482
could be entertained for quashing the F.I.R./charge-sheet/criminal proceeding on the basis of compromise. Para no. 15 of the said judgement summarizing the proposition in this respect is reproduced below:-

"15. (i)
Section 482
preserves the inherent power 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 recognises 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 governed by the provisions of
Section 320
of the Code of Criminal Procedure, 1973. The power to quash under
Section 482
is attracted even if the offence is non-compoundable.

(iii) In forming an opinion whether a criminal proceeding or compliant should be quashed in exercise of its jurisdiction under
Section 482
, 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 each case and no exhaustive elaboration of principles can be formulated;

(vi) In exercise of the power under
Section 482
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 approximately 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 insofar 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;

(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."

10. Learned AGA has no objection, in case, the instant application is decided by this Court on the basis of compromise took place between the parties, which is duly verified by the court concerned.

11. Learned counsel for the opposite party No. 2 has nodded the factum of the compromise entered into between the parties and he has no objection, if the instant application is decided finally on the basis of the said compromise. He also submits that compromise was verified in presence of both the parties, who have voluntarily entered into compromise and opposite party no. 2 does not wants to prosecute the present case against the applicants any more as no dispute remains between the parties.

12. Having considered the compromise verification order dated 11.05.2023, compromise application and with the assistance of the aforesaid guidelines, keeping in view the nature of gravity and severity of the offence, which are more particular in private dispute, it is deemed proper that in order to meet the ends of justice, the present proceeding should be quashed. In result, dispute between the parties will put to an end, peace will be resorted and relationship between them will be smooth. No useful purpose would be served to keep the present matter pending inasmuch as both the parties have buried the hatchet and as the time passes, it will be difficult to prove the guilt of the accused. The continuation of criminal proceeding would cause oppression and prejudice.

13. In view of the aforesaid pronouncements of the Hon'ble Apex Court and in the light of the compromise arrived at between the parties, which has been duly verified by the concerned court below, the present application under
Section 482
Cr.P.C. is hereby allowed. The entire criminal proceeding of the aforementioned case is hereby quashed.

14. Let a copy of the order be transmitted to the concerned lower Court for necessary action.

Order Date :- 21.9.2023

Jitendra