Dismissed

Sahil @ Chhotu and Ors. v. State of Hp and Ors.

Himachal Pradesh HC5 Sept 2022CRMMO/194/2020

Case brief

AI extract

What is this about?

Petitioners sought quashing of FIR and criminal proceedings for offences including Section 307 IPC via compromise deed. The court examined whether Section 482 powers could exercise for heinous offences treated as crimes against society. Dismissed the petition.

What did the court decide?

Petition for quashing of FIR and criminal proceedings dismissed with no order as to costs.

Sahil @ Chhotu and Ors. Vs State of Hp… — Murder and Culpable Homicide | Himachal Pradesh HC (2022)

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REPORTABLE/NON-REPORTABLE IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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ON THE 5^th. DAY OF SEPTEMBER, 2022

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BEFORE

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HON’BLE MR. JUSTICE SATYEN VAIDYA

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CRIMINAL MISC. PETITION (MAIN) U/S 482 Cr.P.C No. 194 of 2020

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Between:

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1. SAHIL @ CHHOTU AGED ABOUT 23 YEARS S/O SH. MOHINDER SINGH RESIDENT OF VILLAGE KEHRIYAN, POST OFFICE, TEHSIL AND POLICE STATION JAWALI, DISTRICT KANGRA, H.P.

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2. AKHIL KUTLEHRIA SHANU S/O SH. HANS RAJ, RESIDENT OF VILLAGE AND POST OFFICE, TEHSIL AND POLICE STATION JAWALI DISTRICT KANGRA, H.P.

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3. RAHUL RIKKI, S/O SH. CHAIN SINGH RESIDENT OF VILLAGE MESKAR, P.O. LAHRU, TEHSIL AND POLICE STATION JAWALI, DISTRICT KANGRA, HP.

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4. HITESHWAR @ HANU, S/O SH. KAMAL SINGH, RESIDENT OF VILLAGE KEHRIYAN, POST OFFICE, TEHSIL AND POLICE STATION JAWALI, DISTRICT KANGRA, H.P

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5. GOVERDHAN O.P S/O SH. DHUNI CHAND RESIDENT OF VILLAGE KEHRIYAN POST OFFICE, TEHSIL AND POLICE STATION JAWALL, DISTRICT KANGRA H.P.

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…..PETITIONERS

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( BY MR. SANJAY JASWAL, ADVOCATE )

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AND

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1. STATE OF HIMACHAL PRADESH THROUGH IT'S SECRETARY HOME.

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……………….RESPONDENT

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2. DIPESH GAUTAM, S/O SH. ANIL GAUTAM RESIDENT OF VILLAGE AND POST OFFICE JAWALI, TEHSIL JAWALI. DISTRICT KANGRA H.P.

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3. ABHINANDAN S/O SH. NIRMAL SINGH RESIDENTS OF VILLAGE AND POST OFFICE JAWALL, TEHSIL JAWALI, DISTRICT KANGRA, H.P.

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.........RESPONDENTS/COMPLAINANTS

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(BY MR. DESH RAJ THAKUR, ADDITIONAL ADVOCATE GENERAL WITH MR. NARENDER THAKUR, DEPUTY ADVOCATE GENERAL AND MR. MANOJ BAGGA, ASSISTANT ADVOCATE GENERAL FOR R-1;

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MR.SUBHASH CHANDER, ADVOCATE, FOR R-2-3)

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RESERVED ON : 30.08.2022 DECIDED ON : 05.09.2022

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This petition coming on for pronouncement of

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judgment this day, the Court passed the following:-

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O R D E R

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The instant petition has been filed for the grant

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following relief:-

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“ It is, therefore, respectfully prayed that present petition may kindly be allowed and the FIR No. 54/2017 dated 14.04.2017 registered against the petitioners at Police Station Jawali, Distt. Kangra, H.P. for the commission of offences under Sections 307, 325, 323, 147,148,149 and 506 of the IPC and criminal proceedings rising therefrom i.e. Sessions Trial Nos. 95/2019 titled as State of H.P. Versus Sahil @ Chotu and Ors., may kindly be quashed and set aside, keeping in view the facts enumerated in the present petition, in the interest of justice and fair play.”

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Brief facts necessary for adjudication of the petition are that on 14.04.2017, FIR No. 54/2017, was registered at Police Station Jawali, District Kangra, H.P., under Sections 307, 325, 323,147,148,149 and 506 of the IPC. The source for registration of case was a statement made by respondent No. 2 herein under

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Section 154 of Cr.P.C, alleging inter alia that at about 5:30 in the evening on 14.04.2017, complainant alongwith his friends Abhinandan (respondent No. 3), Rajat, Shubham Dhiman and Sanjeev Jassal visited “Baishakhi Fair” at Dehar Khad. About a week prior to said date, Sahil @ Chottu ( petitioner No.1) had threatened to kill the complainant in case he dared to face him. When the complainant and his friends were enjoying snacks, respondent No. 1 alongwith Rikki, Shanu @ Dela, Hanu and Mitthu driver came together and slapped complainant. He was also pushed and floored on the ground. They were having sticks in their hands and all of them started beating him. Respondent No. 3 tried to intervene but he was also beaten. All other friends could rescue the complainant with difficulty. Many people gathered on the spot. Complainant suffered injuries on left leg, chest and head. Similarly, respondent No. 3 suffered injuries on his left ear. Thereafter, the assailants fled towards rivulet and while leaving the spot again issued threats of life to the complainant.

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After registration of case, investigation was carried out. The challan was filed against the petitioners. The injury on

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the head of the complainant was opined by the Medical Officer to be dangerous to life and injury on the ear of respondent No.3 was opined as grievous, therefore, challan was filed for offence including Sections 307 and 325 of IPC. As per contents of the challan, petitioners had used dangerous weapons like sticks, steel grips and chopper etc..

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Petitioners have placed on record, Annexure P-3, which is a photocopy of compromise deed dated 14.10.2019 executed between the petitioners and respondent No.1 and Annexure P-4, compromise deed executed between respondent No. 3 and petitioners. It is on the basis of these compromise deeds that a prayer has been made to quash FIR in question and consequent criminal proceedings in Sessions Trial No. 95 of 2019 pending before learned Sessions Judge, Kangra at Dharamshala, H.P.

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Respondent/State has opposed the prayer of the petitioners. It is submitted on behalf of the respondent/State that petitioners have committed the offences in open public place in gruesome manner and without any fear of law. The offence under Section 307 IPC is punishable with imprisonment which may

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extend up to imprisonment for life. Offence under Section 307 IPC being an offence of serious nature, proceedings pending trial for such an offence should not be quashed in the facts and circumstances of the case. As per said respondent, allowing compromise in such case will boost the morale of accused persons and would also make mockery of law.

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I have heard learned counsel for the petitioner as well as learned Additional Advocate General and have also gone through the record.

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The facts on record reveal that it was not an instance of sudden fight between group of young persons. The complainant specifically alleged that petitioner No.1 had threatened to kill him about a week prior to incident. It suggests two possibilities, either there was some other incident of altercation between the parties on prior occasion or the purpose of petitioner No. 1 was to create terror. Petitioners on 14.04.2017 had visited the area, where the fair was being organized, equipped with deadly weapons. They were aware that due to fair, the area would be bustling with general public. Still, petitioners visited the fair area equipped with deadly weapons.

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The allegation is that petitioners launched attack on respondent No. 1 without any provocation. Not only respondent No. 1 was inflicted with serious injuries, his friend respondent No. 3 also becoming the victim of their wrath.

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The psyche of the petitioners was evident and writ large from the aforesaid facts. They had no fear in their minds much less any respect for the law of the land. Respondents No. 1 and 2 were inflicted injuries on vital parts of their bodies with dangerous weapons. According to the medical opinion in respect of respondent No. 1, an injury “21 mm thickness over left frontal convexity” was noticed and was opined to be dangerous to life. Similarly, the injury on the person of respondent No. 3 was longitudinal fracture of mastoid part of left temporal bone head collection scalp swelling prominent + VR space, which was also opined to be grievous hurt. From the nature of injures inflicted on respondents No. 2 and 3, the intent of petitioners prima facie was to cause serious harm to the respondents.

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In State of Madhya Pradesh Vs . Laxmi Narayan and others (2019) 5 SCC 688 , a three judge Bench of Hon’ble Supreme Court had held as under:-

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“12. Now so far as the decision of this Court in the case of Narinder Singh (supra) is concerned, this Court in paragraph 29.6 admitted that the offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore are to be generally treated as crime against the society and not against the individual alone. However, this Court further observed that 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. Its further corroboration with the medical evidence or other evidence is to be seen, which will be possible during the trial only. Hence, the decision of this case in the case of Narinder Singh (supra) shall be of no assistance to the accused in the present case.

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13. Now so far as the reliance placed upon the decision of this Court in the case of Shiji (supra), while quashing the FIR by observing that as the complainant has compromised with the accused, there is no possibility of recording a conviction, and/or the further trial would be an exercise in futility is concerned, we are of the opinion that the High Court has clearly erred in quashing the FIR on the aforesaid ground. It appears that the High Court has misread or misapplied the said decision to the facts of the cases on hand. The High Court ought to have appreciated that it is not in every case where the complainant has entered into a compromise with the accused, there may not be any conviction. Such observations are presumptive and many a time too early to opine. In a given case, it may happen that the prosecution still can prove the guilt by leading cogent evidence and examining the other witnesses and the relevant evidence/material, more particularly when the dispute is not a commercial transaction and/or of a civil nature and/or is not a private wrong. In the case of Shiji (supra), this Court found that the case had its origin in the civil

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dispute between the parties, which dispute was resolved by them and therefore this Court observed that,

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“19… ‘that being so, continuance of the prosecution where the complainant is not ready to support the allegations.…will be a futile exercise that will serve no purpose’”

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In the aforesaid case, it was also further observed ‘that even the alleged two eyewitnesses, however, closely related to the complainant, were not supporting the prosecution version’, and to that this Court observed and held ‘that the continuance of the proceedings is nothing but an empty formality and Section 482 Cr.P.C. can, in such circumstances, be justifiably invoked by the High Court to prevent abuse of the process of law and thereby preventing a wasteful exercise by the courts below. Even in the said decision, in paragraph 18, it is observed as under:

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“18. Having said so, we must hasten to add that the plenitude of the power under Section 482 Cr.PC by itself, makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the power itself demands that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. It is neither necessary nor proper for us to enumerate the situations in which the exercise of power under Section 482 may be justified. All that we need to say is that the exercise of power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse of the process of law. The High Court may be justified in declining interference if it is called upon to appreciate evidence for it

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cannot assume the role of an appellate court while dealing with a petition under Section 482 of the Criminal Procedure Code. Subject to the above, the High Court will have to consider the facts and circumstances of each case to determine whether it is a fit case in which the inherent powers may be invoked.”

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Therefore, the said decision may be applicable in a case which has its origin in the civil dispute between the parties; the parties have resolved the dispute; that the offence is not against the society at large and/or the same may not have social impact; the dispute is a family/matrimonial dispute etc. The aforesaid decision may not be applicable in a case where the offences alleged are very serious and grave offences, having a social impact like offences under Section 307 IPC. Therefore, without proper application of mind to the relevant facts and circumstances, in our view, the High Court has materially erred in mechanically quashing the FIR, by observing that in view of the compromise, there are no chances of recording conviction and/or the further trial would be an exercise in futility. The High Court has mechanically considered the aforesaid decision of this Court in the case of Shiji (supra), without considering the relevant facts and circumstances of the case.

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14. Now so far as the conflict between the decisions of this Court in the cases of Narinder Singh (supra) and Shambhu Kewat (supra) is concerned, in the case of Shambhu Kewat (supra), this Court has noted the difference between the power of compounding of offences conferred on a court under Section 320 Cr.P.C. and the powers conferred under Section 482 Cr.P.C. for quashing of criminal proceedings by the High Court. In the said decision, this Court further observed that in compounding the offences, the power of a criminal court is circumscribed by the provisions contained

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in Section 320 Cr.P.C. and the court is guided solely and squarely thereby, while, on the other hand, the formation of opinion by the High Court for quashing a criminal proceedings or criminal complaint under Section 482 Cr.P.C. is guided by the material on record as to whether ends of justice would justify such exercise of power, although ultimate consequence may be acquittal or dismissal of indictment. However, in the subsequent decision in the case of Narinder Singh (supra), the very Bench ultimately concluded in paragraph 29 as under:

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“29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:

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29.1. Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.

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29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:

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(i) ends of justice, or

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(ii) to prevent abuse of the process of any court.

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While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.

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29.3. Such a power is not to be exercised in those prosecutions which involve 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. Similarly, for the offences alleged to have been committed under special statute like the 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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29.4. On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.

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29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.

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29.6. Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore are to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention

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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 proving 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. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship.

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29.7. While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge-sheet has not been filed. Likewise, those cases where

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the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime.”

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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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15.1) 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

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when the parties have resolved the entire dispute amongst themselves;

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15.2) 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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15.3) 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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15.4) 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. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether

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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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15.5) While exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of noncompoundable 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 complainant to enter into a compromise etc.”

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Thus, the view taken by two judge Bench in Narinder Singh Vs. State of Punjab (2014) 6SCC 466 that offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore, are generally treated as crime against the society and not against the individual alone was again reiterated in para 15.4 of Laxmi Narayan case ( supra ). It has

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clearly been held that since offence under Section 307 IPC and Arms Act etc. would fall in the category of heinous and serious offence and therefore are to be treated as crime against the society and not against the individual alone, 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 of Criminal Procedure, on the ground that the parties have resolved their entire dispute amongst themselves.

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However, a small window has been kept open for such intervention under Section 482 of Cr.P.C. and the quashing of offences even under Section 307 of Indian Penal Code, has been allowed, only if the Court comes to the conclusion that incorporation of Section 307 IPC was only for sake of it and there was no sufficient evidence, which if proved, would lead to framing of charge under Section 307 IPC. For guidance in this regard, it has been observed in aforesaid judgment that it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delicate party of the body, nature of weapons used etc.

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Keeping in sight the aforesaid dictum, the case in hand does not fall in the accepted category as detailed in para 15.4 of Laxmi Narayan’s case (supra). In the instant petition, investigation is complete and challan has been presented. The committal proceedings have been completed and the matter is stated to be pending for consideration on charge before the trial Court. It cannot be said that Section 307 IPC has been incorporated for the sake of it only. The injuries suffered by respondent No. 2 is on a very vital part of the body. It has been opined to be dangerous to life. The weapons used are the sticks, steel knuckles/grips and chopper etc. The location of assault is a fair attended by large numbers of people. The mode and manner of attack/assault is evident of the intent of the petitioners.

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The subsequent compromise between the parties cannot absolve the petitioners from facing the trial, when they are charged for serious offences under Section 307 IPC, which as per above noted exposition, has been held to be not only a serious and heinous offence, but an offence against the entire society.

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