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Sehdev Kumar vs State Of Himachal Pradesh& … on 10 January, 2019

1

IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA

Cr.MMO No. 20 of 2019

.
Date of Decision:10.01.2019

——————————————————————————
Sehdev Kumar ………Petitioner

Versus

State of Himachal Pradesh another …….Respondents
——————————————————————————

Coram
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1?

———————————————————————————
For the petitioner: Mr. Dheeraj K. Vashisht, Advocate

For the respondents: M/s S.C.Sharma, Dinesh Thakur
Sanjeev Sood, Additional Advocate
Generals, with Mr. Amit Kumar Dhumal,

Dy.Advocate General, for respondent
No.1-State.
Mr. Sanjay Prashar, Advocate, for

respondent No.2.
——————————————————————————

Sandeep Sharma, J. (Oral)

By way of instant petition filed under Section 482 of

the Code of Criminal Procedure, prayer has been made on

behalf of the petitioner for quashing of FIR No.124 of 2015,

dated 15.10.2015, under Section 354 of Indian Penal Code

( for short ‘IPC’), registered at Police Station, Gagret, District

Una, H.P.,and consequential proceedings in Criminal Case No.57

1Whether reporters of the Local papers are allowed to see the judgment?

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of 2016, pending adjudication before the learned Judicial

Magistrate, 1st Class, Court No.2, Amb, District Una, H.P.

.

2. Mr. Dheeraj K. Vashisht, learned counsel representing

the petitioner-accused, while inviting attention of this Court to

compromise (Annexure P-3 ),contended that both the parties

have compromised the matter between themselves and as

such, they want to live peacefully in future and maintain cordial

relation with each other. Mr. Vashisht, further contended that

since parties have arrived into an amicable settlement, without

there being any pressure or influence on the complainant, the

instant matter may be ordered to be compounded.

3. This Court with a view to ascertain the correctness

and genuineness of the submissions having been made by the

learned counsel for petitioner-accused as well as compromise

placed on record also recorded statement of complainant Smt.

Saroj Kumari, who is present in Court. Complainant stated on

oath that she has settled the matter with the petitioner-accused

and she has no objection in case the FIR No.124 of 2015, dated

15.10.2015 registered under Sections 354 IPC as well as

consequent proceedings in Criminal Case No.57 of 2016

pending adjudication before the learned Judicial Magistrate, 1 st

Class, Court No.2, Amb, District Una, H.P. against the petitioner-

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accused are quashed and set-aside. Her statement is taken on

record.

.

4. I have heard learned counsel for the parties and

gone through the record.

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 petitioner-accused that offence

in the instant case can be ordered to be compounded.

6. Since the petition has been filed under Section 482

Cr.P.C, this Court deems it fit to consider the present petition in

the light of the judgment passed by Hon’ble Apex Court in

Narinder Singh and others versus State of Punjab and

another (2014)6 Supreme Court Cases 466, whereby

Hon’ble Apex Court has formulated guidelines for accepting the

settlement and quashing the proceedings or refusing to accept

the settlement with direction to continue with the criminal

proceedings. Perusal of judgment referred above clearly depicts

that in para 29.1, Hon’ble Apex Court has returned the findings

that 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

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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 as under:-

29. 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:

29.1Power 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.

29.2. 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 under Section 482 Cr.P.C
the High Court is to form an opinion on either of the
aforesaid two objectives.

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

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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.

29.4. 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.

29.5. 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.

29.6. 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

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harmony between them which may improve their
future relationship.

29.7. 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”.

7. The Hon’ble Apex Court in case Gian Singh v.

State of Punjab and anr. (2012) 10 SCC 303 has 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.PC. Even in the

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judgment passed in Narinder Singh’s case, the Hon’ble Apex

Court has held that while exercising inherent power under

.

Section 482 Cr.PC 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 Dimpey Gujral and Ors. vs. Union Territory

through Administrator, UT, Chandigarh and Ors.

(2013( 11 SCC 497 has also held as under:-

“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’ 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)

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

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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

se 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

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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, 148, 149, 323, 307, 452 and 506
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.”

8. Recently Hon’ble Apex Court in its latest

judgment dated 4th October, 2017, titled as Parbatbhai

Aahir @ Parbatbhai Bhimsinhbhai Karmur and

others versus State of Gujarat and Another, passed in

Criminal Appeal No.1723 of 2017 arising out of SLP(Crl)

No.9549 of 2016, reiterated the principles/ parameters laid

down in Narinder Singh’s case supra for accepting

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the settlement and quashing the proceedings. It would be

profitable to reproduce para No. 13 to 15 of the judgment

.

herein:

“13. The same principle was followed in Central Bureau of
Investigation v. Maninder Singh (2016)1 SCC 389 by a
bench of two learned Judges of this Court. In that case, the

High Court had, in the exercise of its inherent power under
Section 482 quashed proceedings under Sections 420, 467,
468 and 471 read with Section 120-B of the Penal Code. While
allowing the appeal filed by the Central Bureau of Investigation
Mr Justice Dipak Misra (as the learned Chief Justice then was)

observed that the case involved allegations of forgery of
documents to embezzle the funds of the bank. In such a
situation, the fact that the dispute had been settled with the
bank would not justify a recourse to the power under
Section
482:

“…In economic offences Court must not only keep in

view that money has been paid to the bank which has
been defrauded but also the society at large. It is not a
case of simple assault or a theft of a trivial amount; but
the offence with which we are concerned is well planned
and was committed with a deliberate design with an

eye of personal profit regardless of consequence to
the society at large. To quash the proceeding merely on
the ground that the accused has settled the amount
with the bank would be a misplaced sympathy. If the

prosecution against the economic offenders are not
allowed to continue, the entire community is

aggrieved.”

14. In a subsequent decision in State of Tamil Nadu v

R Vasanthi Stanley (2016) 1 SCC 376, the court rejected
the submission that the first respondent was a woman “who
was following the command of her husband” and had signed
certain documents without being aware of the nature of the
fraud which was being perpetrated on the bank. Rejecting the
submission, this Court held that:

“… Lack of awareness, knowledge or intent is neither to
be considered nor accepted in economic offences. The
submission assiduously presented on gender leaves us
unimpressed. An offence under the criminal law is an
offence and it does not depend upon the gender of an

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accused. True it is, there are certain provisions in Code
of Criminal Procedure relating to exercise of jurisdiction
Under
Section 437, etc. therein but that altogether
pertains to a different sphere. A person committing a
murder or getting involved in a financial scam or forgery

.

of documents, cannot claim discharge or acquittal on

the ground of her gender as that is neither
constitutionally nor statutorily a valid argument. The
offence is gender neutral in this case. We say no more
on this score…”

“…A grave criminal offence or serious economic offence
or for that matter the offence that has the potentiality 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 matter has been
settled it should be quashed to avoid the load on the
system…”

15.The broad principles which emerge from the precedents

on the subject may be summarized in the following

propositions:

(i) Section 482 preserves the inherent powers 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 recognizes 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
complaint 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;

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(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 the exercise of the power under Section 482 and while
dealing with a plea that the dispute has bee inherent n
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 appropriately 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 in so far 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 transac mental tions 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.

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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 482

Cr.P.C. 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 victim or the family of the victim have

settled the dispute,but it has also observed that while

exercising its powers, 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. Hon’ble

Apex Court has further held that Court while exercising power

under Section 482 Cr.P.C can also be swayed by the fact that

settlement between the parties is going to result in harmony

between them which may improve their future relationship.

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Hon’ble Apex Court in its judgment rendered in State of

Tamil Nadu supra, has reiterated that Section 482 preserves

.

the inherent powers of the High Court to prevent an abuse of

the process of any court or to secure the ends of justice and

has held that the power to quash under Section 482 is

attracted even if the offence is non-compoundable. In the

aforesaid judgment Hon’ble Apex Court has held that while

forming an opinion whether a criminal proceedings or

complaint 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.

10. Consequently, in view of the averments contained

in the petition as well as the submissions having been made

by the learned counsel for the parties that the matter has

been compromised, and keeping in mind the well settled

proposition of law as well as the compromise being genuine,

this Court has no inhibition in accepting the compromise and

quashing the FIR as well as consequent proceedings arising

out of the aforesaid FIR.

11. Accordingly, in view of the detailed discussion made

hereinabove as well as law laid down by the Hon’ble Apex

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Court, FIR No. 124 of 2015 dated 15.10.2015, under Section

354 IPC, registered at Police Station, Gagret, District Una H.P.,

.

and consequent proceedings in Criminal Case No.57 of 2016,

pending adjudication in the Court of learned Judicial Magistrate,

1s Class, Court No.2, Amb, District Una, H.P, are quashed and

set-aside.

The present petition is allowed in the aforesaid

terms. Pending application(s), if any, also stands disposed of.

10th January,2019 (Sandeep Sharma),
(shankar) Judge.

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