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Vijay Sahu & Others v/s State of Uttarakhand & Others

Company & Directors' Information:- VIJAY INDIA PRIVATE LIMITED [Active] CIN = U25199DL1998PTC096860

Company & Directors' Information:- VIJAY J AND K PRIVATE LIMITED [Strike Off] CIN = U52100GJ1974PTC002504

Company & Directors' Information:- D VIJAY AND COMPANY LIMITED [Dissolved] CIN = U99999MH1933PTC002056

    Writ Petition (Crl) Nos. 704, 705 & Clma No. 3503, 3505, 3512 & 3513 of 2020

    Decided On, 03 June 2020

    At, High Court of Uttarakhand


    For the Appearing Parties: D.S. Mehta, V.K. Gemini, Pankaj Joshi, N.S. Kanyal, Advocates.

Judgment Text

1. The matter is heard through Video Conferencing.2. These are two connected Criminal Writ Petitions. In WPCRL No. 704 of 2020, Vijay Sahu and others Vs. State of Uttarakhand and others, the petitioners have sought the following reliefs:-"i) Issue a writ, order or direction in the nature of certiorari quash the impugned F.I.R. dated 11.03.2020, registered as FIR 0115 of 2020 under section 323, 504 & 506 IPC, police station Haldwani, District Nainital lodged by the respondent No. 3 (contained as annexure no. 1 to the writ petition) in view of the compromise entered between the parties.ii) issue a suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case.iii) award the cost of the petition to the petitioners."3. The petitioners in the said writ petition have contended that as a consequence of the registration of the F.I.R. No. 115 of 2020 dated 11.03.2020, as against them for the commission of offences under Sections 323, 504 and 506 IPC, which was registered against them at P.S. Haldwani, District Nainital, because of certain minor altercations took place between them and the complainant (respondent No. 3) on 10.03.2020, on the day of Holi festival.4. In the connected Criminal Writ Petition being WPCRL No. 705 of 2020, Paritosh Pal and others Vs. State of Uttarakhand and others, the challenge is given by the petitioners to the FIR No. 114 of 2020 dated 10.03.2020, for commission of offences under Sections 147, 323, 452, 504 and 506 IPC, which has been registered at Police Station Haldwani, District Nainital.5. Both the FIRs are in relation to the same set of incident which is complained of as against one another by the parties to both the writ petitions, for the incident which has chanced on 10.03.2020. Later on, parties to the writ petition i.e. complainant (respondent No. 3) as well as the victim of the respective offences have entered into a settlement and had invoked the provisions contained under Section 320 of the Code of Criminal Procedure; for composition of their respective offences on the ground that the parties have entered into a settlement for which their respective affidavits have been filed duly signed by the parties and their respective counsels who had verified their signatures.6. As far as WPCRL No. 704 of 2020 is concerned, the offence complained of is that under Section 323, 504 and 506 IPC, which are compoundable as per Section 320 of the Cr.PC. But in the connected writ petition i.e. WPCRL No. 705 of 2020, two offences i.e. offence under Section 147 and 452 of IPC are not included in the Table of compoundable offences under Section 320 of Cr.PC; but the power of composition would always be dependant upon the circumstances of each and every cases which has to be considered independently in and a straight jacketed formula should not be adopted to deny a composition of offence, which is not included in the Table under Section 320 of Cr.PC, particularly, when the complainant in either of the writ petitions have amicably settled their dispute and the said fact of settlement of dispute stands verified by their respective affidavits, which have been placed on record by the respective parties which has been verified by the counsels for the parties to the respective petitions itself. Since there is a settlement, in case if the investigation or a trial as a consequence of the registration of the FIR is permitted to be proceeded with, it would be resulting into an act of futility, because the complainants themselves do not want to further prosecute the accused persons any further. Owning to the fact that the parties have entered into a settlement, which has been verified by their respective counsels, the compounding application under Section 320 of the CrPC has to be considered pragmatically.7. The said prayer of composition of an offence is opposed by Mr. V.K. Gemini, learned Deputy Advocate General for the State on the pretext that the affidavit of the injured has not been placed on record and further that some of the offences are not compoundable. As far as the impact of non-compoundability of offence(s) which are not included in Table appended to Section 320 of Cr.PC is concerned, this Court has dealt with the matter in Pan Singh Rana s case, (2018) 2 UD 680, and has held that if the offence sought to be compounded is not an offence against the public and if its non composition forcing the parties to proceedings to face the trial, there is a possibility of it ultimately resulting into a futility the offence should be compounded. Thus it would amount to forcing the trial upon the parties compounding their offences. Relevant paragraphs of the above said judgement read as follows:-"10. The basic ratio and the extent of power which the constitutional Courts have, they are much distinct to the powers which could be exercised by the criminal Courts for the purpose of compounding the offences. The inherent powers of the Courts, particularly, when seized with the powers under Section 482 Cr.P.C. and Articles 226 / 227 of the Constitution of India, it has got a wide plentitude and the same cannot be circumscribed or limited to be exercised so as to meet the ends of justice instead of strictly considering the inherent powers in relation to the powers under Section 320 Cr.P.C. What is necessary to be considered by the Constitutional Courts, while deciding the matter based on the settlement, which is distinct to the composition of scope under Section 320 Cr.P.C. These are the following wider parameters for compounding offences based on the settlement :1. Whether such a settlement which has been arrived at between the parties for settling the criminal offence would secure the ends of justice.2. As to whether it would prevent the abuse of process of Court unnecessarily forcing the litigants who has otherwise settled the disputes to undergo the criminal trial.3. It has to consider its social impact and its affect on the society in an event if offence is compounded.Hence, the prime consideration for the Court is not only the nature of offence which is being sought to be settled but it also depends upon the considerations to be made by the Court having regard to the nature of dispute between the offender and the victim and the terms of its settlement, as to whether it is not ill motivated. The ratio which has also been laid down that the Constitutional Courts while exercising the inherent powers would also have to take into consideration that whether by adopting a strict principle for declining to settle the criminal disputes between the offender and victim on the premise of the offence being of heinous nature, will it ultimately on the conclusion of the trial would have an effective adjudication in a situation where the victim has settled the dispute with the offenders does not derive his prosecution. Thus, the basic intention for settling the heinous offences, which includes the offences under Sections 307, 306 and 376 I.P.C., it should not be forced upon to be continued by denial of settlement on a technical ground of implications of Sub-section (9) of Section 320 and Sub-section (2) of Section 320 of the Cr.P.C. so that ultimately on the culmination of the proceedings of the trial, it may not result to be a proceeding of futility.13. The Hon'ble Apex Court has held that settlement of criminal disputes by way of a compromise has to be distinctly treated from different prospective and has not to be camouflaged and eclipsed by the provision of Section 320 Cr.P.C. but only rider imposed are the guidelines as framed by the Hon'ble Apex Court. It has to consider as to whether despite the offences being of a serious nature, what was its gravity, whether it was of private nature and such other factors which has been laid down in the said judgment.40. Even recently, the Hon'ble Apex Court in the case of Parbatbhai Aahir Alias Parbatbhai Bhimsinhbhai Karmur and others Vs. Sate of Gujrat and another, (2017) 9 SCC 641 was dealing with the powers of the Superior Courts under Section 482 Cr.P.C.. The said judgment too places reliance on the ratio as propounded in Gian Singh (Supra). The judgment of Parbatbhai Aahir (Supra) could widely be summarized as under :-(1) Section 482 Cr.PC 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.(2) 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 Cr.P.C. The power to quash under Section 482 is attracted even if the offence is non-compoundable.(3) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482 Cr.P.C., the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power.(4) While the inherent power of the High Court has a wide ambit and plentitude, it has to be exercised to secure the ends of justice and to prevent an abuse of the process of any Court.(5) The decision as to whether a complaint or F.I.R. 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.(6) In the exercise of power under Section 482 Cr.P.C. 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 fences such as murder, rape and dacoity cannot be appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are 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.(7) 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.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. Economic offences

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involving the financial and economic well-being of the State have implications which lie beyond the domain of a mere dispute between the 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."8. In such circumstances, based on the statements recorded by the respective counsels of the parties to the writ petitions, the Compounding Applications (CLMA Nos. 3503/2020 and 3512/2020), as well as the affidavits filed in support thereof are accepted. Both the Criminal Writ Petitions are allowed. The offences as complained thereof are compounded and the FIRs, being FIR No. 115 of 2020 under Sections 323, 504 and 506 IPC registered at P.S. Haldwani, District Nainital and FIR No. 114 of 2020 under Sections 147, 323, 452, 504 and 506 IPC, registered at P.S. Haldwani, District Nainital, under challenge in the writ petitions, are hereby quashed. The writ petitions are allowed accordingly.9. Let a copy of this order be kept in the order sheet of connected Criminal Writ Petition.