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Criminal case compounded as the offence alleged was not ‘stricto sensu’ against the State

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

 

Cr. Revision No. 173 of 2009.

Date of decision: 15th May, 2018.

Sunit Singh & anr. …….Petitioners

Versus

State of H.P. ……Respondent

Coram :The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

For the Petitioners : Mr. N.K. Thakur, Sr. Advocate, with Mr. Divya Raj Singh, Advocate.

For the Respondent : Mr. Vinod Thakur and Mr. Sudhir Bhatnagar, Addl. A.Gs. with Mr. Bhupinder Thakur, Dy. A.G.

Tarlok Singh Chauhan, Judge (Oral).

Cr.MP No. 611 of 2018.

Be registered.

The applicants/petitioners have filed an application under Section 320 read with Section 482 IPC for seeking permission to compound the offence. It has been stated in the application that the petitioners have amicably settled the matter with the complainant as they are the residents of the same village and have the interaction with each other. It is further stated that the parties have buried their differences, disputes of Whether the reporters of the local papers may be allowed to see the Judgment? Yes.

all kinds and have a good relation and to live in peace and harmony, the complainant does not want to prosecute the matter any further.

2. This petition under Sections 397 and 401 of the Code of Criminal Procedure (for short ‘Code’) has been preferred by the petitioners for setting aside the judgment dated 30.09.2009 passed by the learned Additional Sessions Judge (I), Kangra at Dharamshala in Crl. Appeal No. 15-J/05, whereby he affirmed the judgment dated 16/19.11.2005, passed by the learned Additional Chief Judicial Magistrate, Jawali, District Kangra in Criminal Case No. 13-II/99, whereby the petitioners have been convicted and sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1500/- and in default to undergo simple imprisonment for a period of one month for the commission of offence punishable under Section 324 IPC. Each of the petitioners further sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.500/- and in default to undergo simple imprisonment for a period of 15 days for the offence punishable under Section 427 IPC read with Section 34 IPC. Both the sentences were ordered to run concurrently.

3. Brief facts of the case are that on 03.06.1998, Ashok Kumar had gone to Samekhar alongwith Trilok Chand and Karnail Singh. Naresh Kumar, Bajjar Singh, Pawan Kumar and Sunit Singh came armed with the stick and khukhries at about 6:30 and started damaging the tractors of Ranjha Ram and Baldev Singh. Ashok Kumar requested them not to do so, on which Bajjar Singh inflicted a blow by .

means of a khukhri on the person of Ashok Kumar due to which he suffered an injury on his ribs. Bahhar Singh tried to again attack Ashok Kumar but Ashok Kumar ducked. Sunit Singh also tried to attack Ashok Kumar with the khukhri but the same was snatched by Karnail Singh, Trilok Singh and Ashok Kumar. Ashok Kumar suffered an injury on the left thumb due to this. Petitioners were having enmity with the complainant Ashok Kumar. The matter was reported to the police on which FIR came to be registered against the petitioners.

4. On the basis of the FIR, statements of the witnesses were recorded and on completion of investigation, the police prepared the challan and presented before the Court of ACJM, Jawali and the petitioners were charged for the offence punishable under Sections 323, 324, 427 IPC read with Section 34 IPC, to which they pleaded not guilty and claimed trial.

5. In order to prove its case, prosecution examined as many as 12 witnesses and thereafter petitioners were examined under Section 313 Cr.P.C. in which they have claimed false implication, however, they did not lead any evidence in their defence.

6. The learned trial Court after appreciating the evidence on record vide judgment dated 16/19.11.2005 convicted and sentenced the petitioners as aforesaid.

7. Aggrieved by the judgment of conviction and sentence passed by learned trial Court, the petitioners filed an .

appeal under Section 374 of Cr.P.C. before the learned Additional Sessions Judge (I), Kangra at Dharamshala, however, the same came to be dismissed, constraining them to file the instant revision petition.

8. Today, the petitioners and complainant are present before this Court and identified as such by their counsel. It is stated by learned counsel for the petitioners that they have amicably compromised the matter as per compromise deed placed on the file and now complainant do not want to pursue this case against the petitioners.

9. Though the State has expressed its slight reservation regarding compounding of the offence but I find that this is not such wherein the offence for which the petitioner has been charged can be stricto sensu held to be the offence against the State. Even otherwise, once the complainant and petitioners have compromised the matter, the continuation of the criminal case against the petitioners would put the petitioners to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case.

10. In Narinder Singh & Ors. v. State of Punjab & Anr. JT 2014 (4) SC 573 the Hon’ble Supreme Court after summing up the legal position has laid down the following guidelines for the High Court in giving adequate treatment to the settlement between the parties and exercising its powers 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, which reads thus:-

“(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 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 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.”
11. It would be seen that prior to Narinder Singh’s case (supra), a three Hon’ble Judges Bench had considered the relevant scope of Sections 482 and 320 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 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).

12. Keeping in view the aforesaid guidelines, it is not disputed that the parties have reached a settlement and on that basis have preferred the present proceedings seeking permission to compound the offence. Once complainant does not want to hold the petitioners responsible, the compounding of offence would definitely be to secure the ends of justice and to prevent abuse of process of the Court.

13. The facts of this case otherwise do not in any manner fall within the exceptions laid down by the Hon’ble Supreme Court where compromise cannot be entered into or the offence cannot be compounded.

14. Thus, taking holistic view of the matter and looking into all attending facts and circumstances, I find this to be a fit case to exercise powers under Section 482 of the Code and accordingly judgment dated 30.09.2009 passed by the learned Additional Sessions Judge (I), Kangra at Dharamshala in Crl. Appeal No. 15-J/05 whereby he affirmed the judgment dated 16.11.2005, passed by the .

learned Additional Chief Judicial Magistrate, Jawali, District Kangra in Criminal Case No. 13-II/99 are ordered to be set aside.

15. The fine amount lying deposited with the learned trial Court is ordered to be released in favour of the complainant, on his furnishing the details of bank account, as per procedure.

16. The petition stands disposed of in the aforesaid terms, so also the pending application(s), if any.

May 15, 2018 (Tarlok Singh Chauhan)

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