Dismissed

Vijay Shankar and 3 Others v. State of U.P. and Another

Allahabad HC19 Jul 2022A482/4083/2021

Case brief

AI extract

What is this about?

The High Court dismissed an application under Section 482 CrPC seeking to quash criminal proceedings based on a compromise. The court held that offences involving kidnapping and intimidation are crimes against society and non-private, precluding quashing despite the settlement between parties.

What did the court decide?

None. The application for quashing of the charge sheet and subsequent trial proceedings is dismissed.

Vijay Shankar and 3 Others Vs State of U.P. and… — Writ and Judicial Review | Allahabad HC (2022)

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Court No. - 80

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Case :- APPLICATION U/S 482 No. - 4083 of 2021

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Applicant :- Vijay Shankar And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Pradeep Kumar Counsel for Opposite Party :- G.A.,Atul Srivastava

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Hon'ble Rajeev Misra,J.

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Heard Mr. Kalp Dev Mishra, the learned counsel for applicants, the learned A.G.A. for State and Mr. Sunil, Advocate, holding brief of Mr. Atul Srivastava, the learned counsel representing opposite party 2.

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This application under Section 482 Cr.P.C. has been filed for quashing the order dated 19.12.2020 passed by Special Judge (E.C. Act)/4th Additional Sessions Judge, Ghazipur, whereby the compromise application (paper No. 217-B) jointly filed by applicants (accused) and first informant/opposite party 2 has been rejected as well as the entire proceedings of S.T. No. 218 of 2009 (State Vs. Kanta and others) arising out of Case Crime No. C-9 of 2006, under Sections 364-A, 323, 506 IPC, P.S. Kotwali, District Ghazipur and now pending in Court of Special Judge (E.C. Act)/4th Additional Sessions Judge, Ghazipur on the basis of compromise entered into between the parties.

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It transpires from record that in respect of an incident which is alleged to have occurred on 24.03.2006, opposite party 2 filed an application under Section 156 (3) Cr. P. C. Concerned Magistrate allowed the same. Resultantly a delayed F.I.R. dated 25.6.2006 came to be registered as Case Crime No. C-9 of 2006, under Sections 364-A, 323, 506 IPC, P.S. Kotwali, District Ghazipur. In the aforesaid F.I.R. four persons namely Kamta, Vijay Sankar, Kailash and Kabootari (applicants herein) have been nominated as named accused.

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Pursuant to aforesaid F.I.R., Invesgtigating Officer proceeded with statutory investigation of aforesaid Case Crime Number in terms of Chapter XII Cr. P. C. After completion of investigation, Investigating Officer submitted a charge sheet against named accused, i.e. (applicants herein), whereby accused applicants have been charge-sheeted under Sections 364A, 323 and 506 IPC.

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After submission of above noted charge sheet, cognizance was taken upon same by Court concerned. As offence complained of is triable by Court of Sessions, concerned Magistrate committed

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the case to the Court of Sessions. As a result, above mentioned Sessions Trial came to be registered. Applicants, who are charge sheeted accused, are alleged to have been summoned in above noted case.

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Learned counsel for applicants contends that during pendency of above noted Sessions Trial, informant opposite party 2 Shiv Moorat and accused applicants Kamta, Vijay Sankar, Kailash and Kabootari amicably settled their dispute outside the Court. On the basis of settlement so arrived at between the parties, a joint compromise application dated 28.2.2020 was filed before Court below. Aforesaid compromise applicaton came to be rejected by Court below on the ground that offence under Section 364A is not compoundable. Feeling aggrieved by above, applicants, who are charge sheeted accused, have now approached this Court by means of present application under Section 482 Cr. P. C.

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Learned counsel for applicants contends that dispute between the parties is a purely private dispute. During pendency of above mentioned Sessions Trial before Court below, parties have amicably settled their dispute. On the basis of settlement so arrived at between parties, a joint compromise application was filed before Court below. A certified copy of the same has been filed as Annexure 3 to affidavit filed in support of this application.

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On the aforesaid premise, it is urged that once parties have entered into a compromise, no useful purpose shall be served by prolonging proceedings of above mentioned criminal case. Interest of justice shall better be served in case, entire proceedings of above mentioned criminal case are quashed by this Court itself in exercise of its jurisdiction under Section 482 Cr. P. C, instead of relegating the parties to Court below. The trial shall entail a futile pursuit resulting in loss of judicial time when torrents of litigation drown the Courts with an unimaginable flood of dockets.

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Mr. Sunil, Advocate, holding brief of Mr. Atul Srivastava, learned counsel for informant opposite party 2 does not oppose the present application. He has admitted the factum of compromise entered into between the parties. He further contends that once first informant opposite party 2 has himself compromised with accused applicants, then in that eventuality he cannot have any grievance in case proceedings of above mentioned Sessions Trial are quashed by this Court.

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Per contra, the learned A.G.A. has opposed the prayer made by learned counsel for applicants. He submits that no compromise

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can be permitted in present case. The dispute between parties is not private in nature. To the contrary, the same is crime against society. He, therefore, contends that proceedings of above mentioned Sessions Trial cannot be terminated on the basis of compromise.

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This Court is not unmindful of the following judgements of Apex Court:

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1. B.S. Joshi and others Vs. State of Haryana and another (2003)4

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SCC 675 2. Nikhil Merchant Vs. Central Bureau of Investigation[2008)9 SCC 677]

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3. Manoj Sharma Vs. State and others ( 2008) 16 SCC 1 4. Shiji @ Pappu and Others VS. Radhika and Another, 2011 (10) SCC 705

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5. Gian Singh Vs. State of Punjab (2012) 10 SCC 303 6. K. Srinivas Rao Vs. D.A Deepa, (2013) 5 SCC226

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7. Dimpey Gujral and others Vs. Union of Territory through Administrator, U.T. Chandigarh and others, (2013) 11 SCC 497 8. Narindra Singh and others Vs. State of Punjab ( 2014) 6 SCC 466 9. Yogendra Yadav and Ors. Vs. State of Jharkhand and another 2014 (9) SCC 653

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10. C.B.I. Vs. Maninder Singh (2016) 1 SCC 389 11. C.B.I. Vs. Sadhu Ram Singla and Others, (2017) 5 SCC 350 12. Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Others Vs. State of Gujarat and annother, 2017 (9) SCC 641 13. Anita Maria Dias and Ors. Vs. State of Maharashtra and Others, (2018) 3 SCC 290

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14. State of M.P. VS. Dhruv Gurjar and Another, (2019) 5 SCC 570 15. State of M.P. V/s Laxmi Narayan & Ors., 2019 (5) SCC 688 16. Rampal Vs. State of Haryana, AIR online 2019 SC 1716 17. Arun Singh and Others VS. State of U.P. and Another (2020) 3 SCC 736

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wherein the Apex Court has categorically held that compromise can be made between the parties even in respect of certain cognizable and non compoundable offences. However, Apex Court in State of M.P. Vs. Laxmi Narayan (Supra) that no compromise can be made in respect of offences against society as they are not private in nature. Similarly in Ram Pal Vs. State of Haryana (Supra) it has been held that no compromise can be made in cases relating to rape and sexual assault. Reference may also be made to the decision given by this Court in Shaifullah and others Vs. State of U.P. And another [2013 (83) ACC 278] in which the law expounded by the Apex court in some of the aforesaid cases has been explained in detail.

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Recently Apex court in Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur (Supra) has laid down the following guidelines with regard to quashing of criminal proceedings as

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well compromise in criminal proceedings in paragraphs 16 to 16.10, which read as under:

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"16. The broad principles which emerge fro C-17/2004, under Sections 323, 324, 325, 308, 504, 506 IPC, P.S. Barsethi, District Jaunpur,m the precedents on the subject, may be summarised in the following propositions

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16.1. 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 recognises and preserves powers which inhere in the High Court;

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16.2. 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 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.

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16.3. 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;

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16.4. 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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16.5. 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;

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16.6. In the 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 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;

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16.7. 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;

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16.8. 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

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where parties have settled the dispute;

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16.9. 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

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16.10. There is yet an exception to the principle set out in propositions 16.8 and 16.9 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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Apex Court in State of M.P. Vs. Laxmi Narayan and others, (2019) 5 SCC, 688 while dealing with an issue regarding compromise in respect of an offence punishable under Section 307 IPC has observed as under in paragraphs 15.2 to 15.4. Same are reproduced herein under:-

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"15. Considering the law on the point and the other decisions of this Court on the point, referred to hereinabove, it is observed and held as under:

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i) that the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves;

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ii) such power is not to be exercised in those prosecutions which involved 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;

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iii) similarly, such power is not to be exercised for the offences under the special statutes like 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;

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iv) offences under Section 307 IPC and the Arms Act etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone, and therefore, the criminal proceedings for the offence under Section 307 IPC and/or the Arms Act etc. which have a serious impact on the society cannot be quashed in exercise of powers under Section 482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves. 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

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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 framing 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. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paragraphs 29.6 and 29.7 of the decision of this Court in the case of Narinder Singh (supra) should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove;"

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Considering the facts and circumstances of the case, as noted herein above submissions made by counsel for parties and the material on record, it cannot be said that the dispute between the parties is a civil dispute or a private dispute. Criminality committed by applicants is a crime against society. The Apex Court has cautioned that no compromise can be made in matter relating to crime against society. As a result, proceedings of above mentioned Sessions Trial cannot be quashed on the basis of compromise.

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Accordingly, no case for quashing of the charge sheet dated 24.12.2004 submitted in Case Crime No. C-17/2004, under Sections 323, 324, 325, 308, 504, 506 IPC, P.S. Barsethi, District Jaunpur as well as proceedings of consequential S.T. No. 122 of 2006 (State Vs. Lalmani and others) arising out of above mentioned case crime number and now pending in Court of Additional Sessions Judge/FTC Second, Jaunpur, is made out.

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In view of above, application fails and is liable to be dismissed.

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It is, accordingly, dismissed.

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There shall be no order as to costs.

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Order Date :- 19.7.2022 HSM

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Digitally signed by HARI SHANKER MISHRA Date: 2022.07.20 12:13:06 IST Reason: Location: High Court of Judicature at Allahabad

Vijay Shankar and 3 Others v. State of U.P. and Another

Case brief

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Vijay Shankar and 3 Others v. State of U.P. and Another

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