Allowed

Apolo Dele and Anr. v. the State of Ap and Anr.

Gauhati HC7 Feb 2023Crl.Petn./136/2022

Case brief

AI extract

What is this about?

Accused/petitioners sought quashing of FIR registered under Section 326 IPC alleging injury during a fight. After mutual settlement, the High Court exercised inherent powers under Section 482 Cr.P.C. to quash the proceedings, citing the civil nature of the dispute and lack of serious societal impact.

What did the court decide?

FIR registered as Roing P.S. Case No. 42/2022 under Section 326 of IPC, 1860 set aside and quashed.

Apolo Dele and Anr. Vs the State of Ap and Anr. — Quashing and FIR | Gauhati HC (2023)

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GAHC040015422022

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH)

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Case No. : Crl.Petn. 136/2022

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1:Apolo Dele and Anr.

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S/o Atapo Dele, Permanent Resident of Village Atingo, PO/PS Roing, Dist. Lower Dibang Valley, Arunachal Pradesh- 792110

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2: Chupali Pulu S/o Jeevan Pulu R/O Village Cheta Roing Lower Dibang Valley A.P Pin No-79211

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VERSUS

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1:THE STATE OF AP and Anr.

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Represented through Public Prosecutor of A.P, Gauhati High Court Itanagar Permanent Bench, Yupia.

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2:The Superintendent of Police Roing Lower Dibang Valley A.P Pin No- 79211

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Advocate for the Petitioner : Sunil Mow

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Advocate for the Respondent : P P of AP

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BEFORE HONBLE MR. JUSTICE ARUN DEV CHOUDHURY

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ORDER

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Date : 07-02-2023

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Heard Mr. S. Mow, learned counsel for the petitioner. Also heard Ms. H. Laxmi, learned Additional Public Prosecutor for the State of Arunachal Pradesh.

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This is an application filed under Section 482 of the Code of Criminal Procedure, 1973 praying for quashing and setting aside the FIR registered as Roing P.S. Case No. 42/2022 under Section 326 of IPC, 1860.

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This present petition is filed by the accused in the aforesaid charge-sheet and he is the petitioner No. 1, in the present application. This petition is also joined by the petitioner No. 2, who is the victim of the alleged offence and he lodged the F.I.R. Further, this present petition is filed in a background that the informant and the accused had settled the matter amicably between them and therefore, this court in exercise of power under Section 482 of Cr.P.C. should quash the criminal prosecution as the offences charged are not compoundable under Section 320 of Cr.P.C.

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The contents of the F.I.R. discloses that the petitioner No. 1 and his friend Mr. Handi Molo had a conversation over the phone regarding the upcoming AIMSU (All Idu Mishmi Student Union) election and during the course of conversation, the petitioner No. 1, made a funny remark on petitioner No. 2 and recorded the audio conversation by his friend and circulated the same in public domain. After hearing the conversation by the petitioner No. 2, there was fighting between petitioner No. 1 and petitioner No. 2, and as a result both were injured. In the aforesaid backdrop, the FIR was lodged on 05.10.2022 by one Shri Jeevan Pulu, before the Officer-In-Charge Roing Police Station which

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was registered as Roing PS Case No. 42/2022 under Section 326 of IPC.

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Subsequently, the petitioners have mutually settled the matter and entered into a Deed of Amicable Settlement on 13.10.2022, at Itanagar, Arunachal Pradesh, which is part of the present petition. In the Deed of Amicable Settlement, the present accused is described as 2^nd Party and the informant is described as 1^st party. The said Settlement discloses the following:-

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“1. That, the 1^st party has agreed upon to withdraw the case from the Roing Police Station FIR Roing PS Case No. 42/2022, if not then both the parties have agreed to file a petition in the appropriate forum to quash the FIR.

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Both the parties have agreed to not file any case in the near future whatsoever.

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That both the parties have agreed to live peacefully and not to drag this issue in the future.”

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In the aforesaid backdrop, this Court is now to decide whether this is a fit case where this Court can exercise its inherent power under Section 482 of Cr.P.C. to quash FIR registered as Roing P.S. Case No. 42/2022 under Section 326 of IPC, 1860.

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It is by now settled that a High Court in exercise of its power under Section 482 of Cr.P.C. can very well quash a criminal proceeding or a criminal complaint under Section 482 of Cr.P.C., but while doing so, the Court is to follow certain principles as enunciated by the Hon’ble Apex Court in Gian Singh –VsState of Punjab and Another reported in 2012 10 SCC 303 , and in State of Madhya Pradesh –Vs- Laxmi Narayan and Others reported in 2019 5 SCC 688 .

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In the case of State of Madhya Pradesh & Laxmi Narayan , (supra), the Hon’ble Supreme Court has laid down certain guidelines for exercise of

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powers under Section 482 Cr.P.C., it is submitted that instant case falls within the guidelines laid down by the Hon’ble Supreme Court.

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For ready reference, paragraph-13 of Laxmi Narayan (Supra) is extracted herein below:

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“13. 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) 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) 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) 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 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.

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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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v) while exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offences, which are private in nature and do not have a serious impart on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the

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complainant to enter into a compromise etc.”

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Considering the factual background of the present case and also considering the nature of offence including the young age of the accused and the victim as well as considering the fact that the compromise was proposed immediately between the parties and taking note of the materials available on record including the statements recorded under Section 161 of Cr.P.C., and the Charge-Sheet, this Court is of the considered opinion that this is a fit case, where this Court should exercise its inherent power under Section 482 of Cr.P.C. to quash FIR registered as Roing P.S. Case No. 42/2022 under Section 326 of IPC, 1860 inasmuch as the parties have already settled their dispute. This Court has coming into such conclusion, considered the nature of injury inasmuch as the offence alleged to have been committed are not heinous and shall not have serious impact on the society.

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Accordingly, this petition is allowed by setting aside and quashing the FIR registered as Roing P.S. Case No. 42/2022 under Section 326 of IPC, 1860.

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JUDGE

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Comparing Assistant

Apolo Dele and Anr. v. the State of Ap and Anr.

Case brief

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Apolo Dele and Anr. v. the State of Ap and Anr.

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