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Jaswant Yadav v/s State of U.P.

    Criminal Misc. Writ Petition No. 22976 of 2017

    Decided On, 30 October 2017

    At, High Court of Judicature at Allahabad


    For the Appellant: Kamlesh Kumar Dwivedi, Advocate. For the Respondent: G.A.

Judgment Text

Rahul Chaturvedi, J.

1. Heard Sri K.K. Dwivedi, learned counsel for the petitioner, Sri Kashi Nath Shukla, learned counsel for the complainant and learned AGA.

2. By means of the instant petition the petitioners Jaswsant Yadav son of Paras Nath Yadav and Subhash son of Ram Adhar Yadav have filed a writ petition challenging the FIR lodged by Ram Palat Yadav son of Late Belawan Yadav bearing Case Crime No. 182 of 2017, under sections 307, 504, 506 IPC, Police Station-Pavai, District-Azamgarh. The prayer sought by the petitioners that the aforementioned impugned FIR may be quashed in exercise of power under Article 226 of the Constitution of India. The grounds taken by the petitioners primarily are in two fold:-

(a). That the contesting parties are in near relationship the petition no. 1 is the brother-in-law of injured Rajit Kumar Yadav whereas petitioner no. 2 is the Mausa of petitioner no. 1.

(b). After lodging of the present FIR on 22.06.2017 the parties have buried their differences and the informant does not want to pursue the aforementioned criminal prosecution against the petitioners any more.

3. In support of the contention, the counsel have filed a joint affidavit signed, by Jaswant Yadav (Petitioner No. 1) Subhash (Petitioner No. 2) Ram Palat Yadav (respondent No. 3) as well as Rajit Kumar the alleged injured, who have sustained injuries. In the said joint affidavit it has been candidly spelled out in paragraph 5 that neither the informant of the FIR namely Ram Palat Yadav nor the injured Rajit Kumar Yadav are any more interested to proceed with the matter. They have buried their differences on their own free will and accord. Thus, in the fitness of the circumstances the present FIR may be quashed.

4. Per contra learned AGA vehemently opposed the prayer sought by the petitioners on the ground (i) Section 307 IPC is a non-compoundable offence (ii) the injured Rajit Kumar has suffered gunshot wound over his person.

5. We have carefully perused the injury report of injured filed as Annexure-2 to the petition. The said injury report, which has issued on 22.06.2017 by Divisional District Hospital, Azamgarh. He was admitted in the hospital on 22.06.2017 at 10:35 p.m. and was referred some higher center at 11:40 p.m. on the same day. As per the attending doctor, fire arm bullet from lateral side in left of junction of upper ? lower ? (nearly) on medial side of left thigh/knee. But there was no bony injury or fracture was observed by the doctor.

6. Besides above the injured Rajit Kumar has got examined at Darpan Diagnostic center, Azamgarh on 23.06.2017. The report of the above test is annexed at page no. 23 of the paper book. The report shows that 'No Significant Abnormality Detected.'

7. Thus we can safely presume that the alleged gunshot injury was on the non-vital part of the body which cannot fall within the category of 'attempt to murder.'

8. By the supplementary affidavit filed in the court today by Jaswant Yadav, which is taken on record, the petitioner has apprised the court, that on earlier occasion, the petitioner no. 2 Subhash Chandra approached this court by filing a Criminal Misc Writ Petition No. 14804 of 2017 (Subhash Chandra v. State of U.P. and Another) and on 31.07.2017 this court had refused to quash the FIR but had granted a liberty to surrender before the court concerned within 30 days and the bail application of the applicant was decided to be heard and disposed of expeditiously in the light of ratio laid down in the case of Amrawati and Another v. State of U.P.2004 (3) ACR 2888 and Lal Kamlendra Pratap Singh v. State of U.P., 2009 (2) ACR 2063 (SC) but keeping in view the change scenario, when the contesting parties have come to terms thus, the present writ petition under changed circumstances.

9. The learned counsel for the petitioners has placed reliance upon the judgment of Hon'ble Apex Court in the case of Yogendra Yadav and Others v. State of Jharkhand, 2014 (9) SCC 653 in which the Hon'ble Apex Court has opine,

"However, when the High Court is convinced that the offences are entirely personal in nature and, therefore, do not affect public peace or tranquility and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, it should not hesitate to quash them. In such cases, the prosecution becomes a lame prosecution. Pursuing such a lame prosecution would be waste of time and energy."

10. Learned counsel for the petitioner again in order to substantiate his assertion, has placed reliance on yet another judgment of Hon'ble Apex Court in the case of Narinder Singh & Other v. State of Punjab & Another 2014 (6) SCC 466. The above case too relates to Section 307/324/323/341 IPC. The prayer sought by the petitioners to quash the proceedings on the ground of settlement between waring parties. Since both the parties are now become good neighbours, after intervention of respectable members of Gram Panchayat, they urged to drop the criminal prosecution against accused person. In this case, as many as four gunshot injuries suffered by the injured person. The High Court refused to grant the prayer and quash the proceedings, on the ground of compromise between contesting parties is not permissible as Section 307 I.P.C. is a non-compoundable offence. The issue was taken up by Hon'ble Supreme Court who after churning the matter from all angles, the court has summed up the legal position in this regard in following words:-

"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 guidelines 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 FIR may be exercised where the offender and the 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 10 Page 11 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 a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the 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 predominatingly civil flavor stand on a 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, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the 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 or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."

11. On the above golden parameters, let us examine the facts of case in hand. Undoubtedly the present case of gunshot injury, but on evaluation of its seat of injury, which is on the non-vital part of the body (on knee), with no bony abnormality was detected, it cannot be said that the accused had attempted to take the life of the victim. On this touchstone, we can come to the conclusion that offence in hand would not fall within the category of heinous crime or attempt to murder of the victim.

12. If the heinous crime of serious nature, then it has to be treated as crime against society and not against individual one. It is the duty of the State to punish the offender, ignoring there is a compromise/settlement between perpetrator of crime and the victim. But in the instant case, where the parties are in close relation, the gun shot injury sustained by the victim is on his non-vital part of the body, there was no bony abnormality was seen by the doctor, we have no doubt that in the facts of the present case and settlement arrived between the parties, the criminal prosecution against the petitioner would be exercise in futility. The ratio of the above cas

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es squirely applies in the present case. 13. Taking out the mandate of the above noted cases of the Hon'ble Apex Court, where the parties are neighbours or in near relation that there is harmonious relationship between them and now they are living peacefully-the party who has initiated the proceeding does not want to contest the case and he has got no grievance left against the present petitioners, then it would be perfectly just and proper that the proceedings may be set at rest. 14. Keeping in view the submission advanced by the contesting parties, after perusing the record and citation of Hon'ble Apex Court we have got no hesitation that it would be entirely a futile exercise to keep the present FIR and subsequent proceedings there to pending and alive, under the changed scenario. Hence the impugned FIR of Case Crime No. 182 of 2017, under sections 307, 504, 506 IPC dated 22.06.2017 so lodged by Ram Palat Yadav, respondent no. 3 is hereby quashed. 15. The present writ petition is allowed. 16. There is no order as to cost.

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