Allowed

Vishnu Jaiswal @ Guddu and Another v. State of U.P. and Another

Allahabad HC1 Feb 2023A482/38911/2022

Case brief

AI extract

What is this about?

The court quashed criminal proceedings for criminal breach of trust under Section 406 IPC after parties compromised and the settlement was verified. The dispute was purely private, and continuation would be futile.

What did the court decide?

Entire proceedings of Case No. 4665 of 2016 under Section 406 I.P.C., P.S.-Navabad, District-Jhansi, pending in the Court of Chief Judicial Magistrate, Jhansi, are quashed.

Vishnu Jaiswal @ Guddu and Another Vs State of U.P. and… — Quashing and FIR | Allahabad HC (2023)

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Court No. - 66

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Case :- APPLICATION U/S 482 No. - 38911 of 2022

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Applicant :- Vishnu Jaiswal @ Guddu And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Nehal Beg,Rajesh Yadav Counsel for Opposite Party :- G.A.,Saqib Meezan

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Hon'ble Rajeev Misra,J.

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Heard Mr. Nehal Beg, the learned counsel for applicants,, the learned A.G.A. for State and Mr. Akshay Advocate holding brief of Mr. Saqib Meezan, the learned counsel representing opposite party-2.

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Perused the record.

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This application under Section 482 Cr.P.C. has been filed challenging the entire proceedings of Case No. 4665 of 2016 ( State Vs. Vishnu Jaiswal and others) under Section 406 I.P.C., P.S.-Navabad, District-Jhansi, now pending in the Court of Chief Judicial Magistrate, Jhansi, in view of the compromise entered into by the parties.

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Record shows that during pendency of aforementioned criminal case, parties amicably settled their dispute outside the Court. On the basis of settlement so arrived at between the parties, a sum of Rs. 2 Lakhs was to be paid by the accused/applicants to first informant/opposite party-2. The aforesaid amount has already been paid to the first informant/opposite party-2 by means of Bank Drafts. Photocopies of same are on record at page 58 of the paper book. As offence complained of is non-cognizable, applicants have now approached this Court by means of present application under Section 482 Cr.P.C..

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Instant application came up for admission on 02.12.2022 and this Court passed the following order:-

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"Supplementary affidavit has filed on behalf of applicants which is taken on record.

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Heard learned counsel for the applicants, learned counsel for opposite party no.2 as well as learned A.G.A. appearing for the State and perused the record.

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This criminal application under Section 482 Cr.P.C. is filed with the prayer to quash entire proceedings of Case No.4665 of 2016 (State Versus Vishnu Jaiswal and others) arising out of charge-sheet in Case Crime No.322 of 2016 under Section 406 I.P.C, Police Station Navabad, District Jhanasi on the basis of compromise dated 01.11.2022.

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Learned counsel for the applicants has submitted that the parties have entered into a compromise which has been filed before the court concerned. Learned counsel for opposite party no.2 has admitted the factum of compromise.

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In view of aforesaid submissions made by learned counsel for the parties and taking into consideration that written compromise is to be filed before the court concerned, it is directed that the parties shall appear before the court concerned within three weeks from today and get the compromise filed and verified.

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The learned Magistrate shall verify the compromise, after proper identification and submit a report before this Court by the next date fixed. Learned counsel for the applicants may also obtain the copy of verification order and file it before this Court.

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The applicants will hand over the demand draft to the opposite party no.2 before the trial court at the time of verification of compromise. List this case as fresh on 04.01.2023.

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Till the next date of listing, no coercive measure shall be adopted against the applicants in the aforesaid case. "

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Pursuant to above order dated 02.12.2022, parties appeared before Court below for verification of compromise by moving an application dated 16.12.2022. Copy of Agreement alongwith affidavit of Vishnu Jaiswal @ Guddu was also filed before court below. Aforesaid compromise was verified by court below vide order dated 19.12.2022. A report dated 23.12.2022 has also

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been sent by Court below to this Court regarding above.

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Learned counsel for applicants contends that dispute between the parties is a purely private dispute. During pendency of above mentioned criminal case before Court below, parties have amicably settled their dispute. On the basis of settlement so arrived at between parties, an agreement was filed before Court below. In terms of agreement, a sum of Rs. 2 Lakhs has already been paid by accused/applicant to first informant/opposite party-2. Copy of the same has been brought on record as Annexure 5 to the affidavit filed in support of present 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 the 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.

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Learned A.G.A. for State and Mr. Akshay Advocate holding brief of Mr. Saqib Meezan, the learned counsel representing opposite party-2. do not oppose this application. They submit that once first informant/opposite party-2 has himself compromised with accused applicants, then in that eventuality, first informant opposite party-2 cannot have any objection, in case entire proceedings of above mentioned criminal case are quashed by this Court.

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

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i. B.S. Joshi and others Vs. State of Haryana and another (2003) 4 SCC 675

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ii. Madan Mohan Abbot Vs. State of Punjab, (2008) 4 SCC

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582

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

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iv. Manoj Sharma Vs. State and others ( 2008) 16 SCC 1

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v. Shiji @ Pappu and Others VS. Radhika and Another, (2011) 10 SCC 705

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vi. Gian Singh Vs. State of Punjab (2012) 10 SCC 303

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vii. K. Srinivas Rao Vs. D.A Deepa, (2013) 5 SCC 226

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viii. Dimpey Gujral and others Vs. Union Territory through Administrator, U.T. Chandigarh and others, (2013) 11 SCC 497

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ix. Narindra Singh and others Vs. State of Punjab ( 2014) 6 SCC 466

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x. Yogendra Yadav and Ors. Vs. State of Jharkhand and another (2014) 9 SCC 653

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xi. Shlok Bhardwaj Vs. Runika Bhardwaj, (2015) 2 SCC 721 xii. C.B.I. Vs. Maninder Singh (2016) 1 SCC 389

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xiii. C.B.I. Vs. Sadhu Ram Singla and Others, (2017) 5 SCC 350

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xiv. Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Others Vs. State of Gujarat and another, (2017) 9 SCC 641

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xv. Anita Maria Dias and Ors. Vs. State of Maharashtra and Others, (2018) 3 SCC 290

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xvi. Social Action Forum For Manav Adhikar and Another Vs. Union of India and others, (2018) 10 SCC, 443 (Constitution Bench)

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xvii. State of M.P. VS. Dhruv Gurjar and Another, (2019) 5

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SCC 570

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xviii. State of M.P. V/s Laxmi Narayan & Ors., (2019) 5 SCC 688

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xix. Rampal Vs. State of Haryana, AIR online 2019 SC 1716 xx. Arun Singh and Others VS. State of U.P. and Another (2020) 3 SCC 736

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xxi. (Ramgopal and Another Vs. The State of M.P.), 2021 SCC OnLine SC 834

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xxii. Daxaben Vs. State of Gujarat, 2022 SCC Online 936. xxiii. State of Kerala VS. Hafsal Rahman N.R., Special Leave Petition (Criminal) Diary Nos. 24362 of 2021

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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) held 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. Recently, the Apex Court in Daxaben (supra) has held that no compromise can be made in matter under Section 306 IPC. In state of Kerala Vs. Hafsal Rahman (Supra) , Court has held that no compromise can be entertained in matters under the POCSO Acts. 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

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guideline with regard to quashing of criminal proceedings as 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 from the precedents on the subject, may be summarized in the following propositions 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

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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 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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Recently in Ramgopal and another (supra), Court has again reiterated the guidelines regarding quashing of criminal proceedings in view of compromise. Following has been observed in paragraph 18-19:-

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"18. It is now a well crystalized axiom that plenary jurisdiction of this Court to impart complete justice under Article 142 cannot ipso facto be limited or restricted by ordinary statutory provisions. It is also noteworthy that even in the absence of an express provision akin to Section 482 Cr.P.C. conferring powers on the Supreme Court to abrogate and set aside criminal proceedings, the jurisdiction exercisable under Article 142 of the Constitution embraces this Court with scopious powers to quash criminal proceedings also, so as to secure complete justice. In doing so, due regard must be given to the overarching

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objective of sentencing in the criminal justice system, which is grounded on the sub-lime philosophy of maintenance of peace of the collective and that the rationale of placing an individual behind bars is aimed at his reformation.

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19. We thus sum-up and hold that as opposed to Section 320 Cr.P.C. where the Court is squarely guided by the compromise between the parties in respect of offences 'compoundable' within the statutory framework, the extra-ordinary power enjoined upon a High Court under Section 482 Cr.P.C. or vested in this Court under Article 142 of the Constitution, can be invoked beyond the metes and bounds of Section 320 Cr.P.C. Nonetheless, we reiterate that such powers of wide amplitude ought to be exercise carefully in the context of quashing criminal proceedings, bearing in mind: (i) Nature and effect of the offence on the conscious of the society; (ii) Seriousness of the injury, if any; (iii) Voluntary nature of compromise between accused and the victim; & (iv) Conduct of the accused persons, prior to and after the occurrence of the purported offence and/or other relevant considerations."

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Considering the facts and circumstances of case, submissions made by counsel for parties and the material on record, this court is of considered opinion that dispute between parties is a purely private dispute and not a crime against society. Moreover, during pendency of present application, parties have already compromised their dispute. Compromise so entered into by parties has been acted upon and verified by Court below. As such, on date no difference exists between the parties. Consequently, no useful purpose shall be served in prolonging the proceedings of above mentioned case. In view of compromise entered into by the parties, chances of conviction of accused applicants are remote and bleak. As such continuation of proceedings would itself cause injustice to parties. The trial would only entail loss of judicial time in a futile pursuit particularly when torrents of litigation drown the courts with an unimaginable flood of dockets.

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In view of above, present application succeeds and is liable to be allowed.

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Consequently, entire proceedings of Case No. 4665 of 2016 ( State Vs. Vishnu Jaiswal and others) under Section 406 I.P.C., P.S.-Navabad, District-Jhansi now pending in the Court of Chief Judicial Magistrate, Jhansi, are, hereby, quashed.

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Application is, accordingly, allowed.

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Cost made easy.

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Order Date :- 1.2.2023 YK

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Digitally signed by :- YASHWANT KUMAR High Court of Judicature at Allahabad

Vishnu Jaiswal @ Guddu and Another v. State of U.P. and Another

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Vishnu Jaiswal @ Guddu and Another v. State of U.P. and Another

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