Allowed

Anil Jaiswal And Ors. v. State of Jharkhand

Jharkhand HC22 Nov 2013Cr.A(SJ)/1233/2004

Case brief

AI extract

What is this about?

The High Court set aside convictions and sentenced acquittal after holding that the disputed offence, arising from a petty dispute resulting in simple injuries, allowed for compromise. Three appeals were allowed based on the Gian Singh decision permitting quashing when justice requires it. One appeal was separated due to lack of compromise.

What did the court decide?

Set aside judgment of conviction and sentence; acquitted appellants and discharged from bail liabilities.

Anil Jaiswal And Ors. Vs State of Jharkhand — Quashing and FIR | Jharkhand HC (2013)

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In the High Court of Jharkhand at Ranchi

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Cr.App. (S.J) No.1227 of 2004 With Cr.App.(S.J) No.1233 of 2004 With Cr. App.(S.J) No.1241 of 2004 With Cr. App. (S.J) No.1315 of 2004

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Rajesh Khanna……………….Appellant ( Cr.App.No.1227 of 2004)

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Anil Jaiswal

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Suprekash Dutta

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Ashwini Rathore

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Sandeep Kumar Saha

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Jatin Sahay…………….……. Appellants(Cr.App.No.1233 of 2004)

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Raju Julka…………………….. Appellant (Cr.App.No.1241 of 2004)

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1.Indra Kumar Julka

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2.Samir Julka…………………….. Appellants (Cr.App.No.1315 of 2004)

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V E R S U S

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State of Jharkhand ……………………...……………………… Respondent

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CORAM: HON’BLE MR.JUSTICE R.R.PRASAD

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For the Appellants:M/s. A.K.Kashyap and M.K.Dey, Sr.Advocate, Arun Kumar and Laljee Sahay, Advocate For the State :A.P.P For the Informant :Mr.Manoj Kumar, Advocate

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09/ 22.11.13.

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Since all the aforesaid four Cr.Appeals arose out of the

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same impugned order they were tagged together so that the same be heard together and be disposed of by the common order.

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The Cr.App.(S.J) No.1227 of 2004, Cr.App.(S.J) No.1233 of 2004 and Cr.App.(S.J) No.1241 of 2004 are being pressed on the ground that the parties have compromised the case but in Cr.App.(S.J) No.1315 of 2004, the parties have not entered into a compromise and therefore, Cr.App. (S.J) No.1315 of 2004 is hereby separated from other three appeals.

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All the aforesaid three appeals are directed against the judgment of conviction dated 16.7.2004 passed in Sessions Trial

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No.563 of 1995 as well as order of sentence whereby all the appellants were convicted for the offences under Sections 452, 147 and 323/149 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for three years, one year and six months respectively for the offences under Section 452, 147 and 323/149 of the Indian Penal Code.

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The case of the prosecution is that in the evening of 25.9.1994 the appellant Raju Julka came along with one boy and after ascertaining that the house belongs to Yuvaraj went away. Subsequently, at 8.45 p.m. Indra Kumar Julka, his son Samair Julka and Raju Julka along with 5-6 boys came in their Ambassador car in drunken state and got down from it and then entered into the house and started searching for the informant, Manmohan Krishna (P.W.2) with a view to kill him. When they came across with the informant, all the accused persons started assaulting him. In that course, the appellant, Raju Julka opened fire upon the informant from his pistol but it got misfired. Meanwhile, when the family members Sunil Kumar Mahendru (P.W.3) and Rakesh Kumar (P.W.1) tried to rescue the informant, they were also assaulted, as a result of which, they received injuries. In that course, one of the accused in order to kill the informant’s niece Sushma, throttled her neck. While this was happening, alarm was raised, as a result of which, local people assembled over there and then accused persons started fleeing from there. However, one of the accused Jatin Sahay was apprehended, who disclosed the name of his associates.

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On the basis of the said fardbeyan made by the informant (P.W.2), a case was registered as Bariatu P.S. case no.117 of 1994 under Sections 452, 307/34 of the Indian Penal Code and also under Section 27 of the Arms Act.

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When the matter was taken up for trial, the prosecution examined as many as 11 witnesses and one witness was examined as

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defence witness.

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The court on the basis of evidence adduced on behalf of the prosecution while acquitting the appellants under Section 307/34 of the Indian Penal Code and also under Section 27 of the Arms Act convicted them for the offences under Sections 452, 147, 323/149 of the Indian Penal Code. Accordingly, they were sentenced as stated above.

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Against the judgment of conviction and order of sentence, these appeals have been preferred.

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According to the learned counsel appearing for the appellants one of the appellants as well as Raju Julka were related to each other and the occurrence took place on account of the dispute relating to purchase of the house and therefore, it can never happen to be a serious case, rather occurrence seems to have taken place on a very petty matter and when the parties realized it, they resolved their dispute and have entered into a compromise. To that effect a compromise petition has been filed and therefore, keeping in view the fact that occurrence took place on a very petty matter and that the case is not of heinous nature, the parties should be allowed to compound the offences, in view of the decision rendered in a case of Gian Singh vs. State of Punjan and another [2013 (1) JBCJ 142] wherein their Lordships have pleased to hold that the High Court in exercise of inherent power can quash the proceeding irrespective of the provision as contained in Section 320 of the Code provided the offence alleged is not heinous and serious and does not involve any public policy.

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Thus, it was submitted that the parties since have entered into a compromise in a case which in the facts and circumstances cannot be said to be heinous and serious, the parties should be allowed to be compounded the offence.

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Learned counsel for the informant accepts that the parties have

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entered into a compromise.

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The submission advanced on behalf of the appellants is based mainly on the decision rendered in a case, referred to above, the said case of Gian Singh vs. State of Punjan and another (supra) needs to be taken notice of wherein their Lordships after considering number of decisions has been pleased to observe as follows:

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“The position that emerges from the above discussion can be summarized thus; the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plentitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what case power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the acts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of case, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of

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process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question (s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.”

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Thus, what has been held is that when the matter having element of civil dispute gets resolved, it is for the High Court to consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuance of criminal proceeding would tantamount to abuse of the process of law when the parties got their dispute settled. However, at the same time, it has been held that in case of heinous crime which does have serious impact over the society and also in a case involving offence under the Prevention of Corruption Act prosecution never warrants to be quashed even the parties come forward with a plea that they have settled their dispute.

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Here, in the instant case as noted above, on account of the dispute which was petty in nature, occurrence took place in which parties sustained simple injury. In such situation, the case cannot be termed to be heinous or serious. Hence, the parties are allowed to compound the offence.

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Accordingly, the judgment of conviction and order of sentence dated 16.7.2004 passed in S.T. No.563 of 1995 is hereby set aside. Consequently, the appellants, namely, Rajesh Khanna, Anil Jaiswal, Suprekash Dutta, Ashwini Rathore,, Sandeep Kumar Saha, Jatin Sahay and Raju Julka are acquitted from the charges levelled against them. They are discharged from the liabilities of their bail bonds.

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In the result, three appeals, i.e. Cr.App. (S.J) No.1227 of 2004,

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Cr.App.(S.J) No.1233 of 2004 and Cr.App (S.J.) No.1241 of 2004

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are allowed.

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( R.R.Prasad, J.)

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ND/

Anil Jaiswal And Ors. v. State of Jharkhand

Case brief

What is this about?

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Anil Jaiswal And Ors. v. State of Jharkhand

Case brief

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