Allowed¶45

Ashfaque Khan Alias Ismol Alias Mohammad Asfak Khan v. the State of Jharkhand

Jharkhand HC19 Jun 2024Cr.M.P./1461/2024

Case brief

AI extract

What is this about?

Jharkhand HC Cr.M.P. No. 1461 of 2024 (decided 19-06-2024, Anil Kumar Choudhary, J.): quashing under S.482 Cr.P.C. of entire proceeding in Borio (Jirwabari) P.S. Case No. 272 of 2023 (IPC Ss. 341, 323, 307, 354, 379, 447, 34) on out-of-court settlement recorded in I.A. No. 5140 of 2024; S.307 IPC held not made out; Narinder Singh and Others vs. State of Punjab & Another (2014) 6 SCC 466 para 29 applied; petitioners Ashfaque Khan and Md. Imran Khan; informant-victim Sabana Azmi; proceeding quashed qua petitioners only; petition allowed.

What did the court decide?

Quashing of the entire criminal proceeding arising out of Borio (Jirwabari) P.S. Case No. 272 of 2023 qua the petitioners only; interlocutory application no. 5140 of 2024 consequently disposed of. ¶45

Ashfaque Khan Alias Ismol Alias Mohammad Asfak Khan Vs the State of Jharkhand — Jharkhand HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

Quashing of the entire criminal proceeding arising out of Borio (Jirwabari) P.S. Case No. 272 of 2023 qua the petitioners only; interlocutory application no. 5140 of 2024 consequently disposed of.

¶45

Issue for consideration

Whether the entire criminal proceeding arising out of Borio (Jirwabari) P.S. Case No. 272 of 2023 should be quashed under Section 482 Cr.P.C. on the basis of the settlement arrived at between the petitioners and opposite party no.2. +1 more

¶19

Court's answer

Guided by the principles laid down in paragraph 29 of Narinder Singh and Others vs. State of Punjab & Another ((2014) 6 SCC 466), the Court held that in view of the compromise between the parties the possibility of conviction of the petitioners is remote and bleak, and continuation of the case would put the accused-petitioners to oppression and prejudice and amount to abuse of the process of law.

¶43

Ratio / Principle

On the facts of the case, the offence punishable under Section 307 of the Indian Penal Code is not made out.

¶43

Key takeaways

The entire criminal proceeding arising out of Borio (Jirwabari) P.S. Case No. 272 of 2023 is quashed and set aside qua the petitioners only.ratio¶44

Detailed headnote1 paragraphs

Petition under Section 482 Cr.P.C. by Ashfaque Khan @ Ismol @ Mohammad Asfak Khan and Md. Imran Khan @ Devid seeking quashing of the entire criminal proceeding arising out of Borio (Jirwabari) P.S. Case No. 272 of 2023, instituted for offences under Sections 341, 323, 307, 354, 379, 447 and 34 of Indian Penal Code. Petitioners and opposite party no.2 Sabana Azmi (informant-victim) jointly submitted, through Interlocutory Application No. 5140 of 2024 supported by affidavits, that the dispute — described as basically a civil dispute regarding possession of land and house property — had been settled outside the court during pendency. Following the principles set out in paragraph 29 of Narinder Singh and Others vs. State of Punjab & Another, (2014) 6 SCC 466, Justice Anil Kumar Choudhary held that the offence punishable under Section 307 IPC was not made out on the facts, and that, the parties having compromised, the possibility of conviction was remote and bleak, so that continuation of the proceeding would cause oppression and prejudice and amount to abuse of the process of law. The entire criminal proceeding was quashed and set aside qua the petitioners only; the Criminal Miscellaneous Petition was allowed and interlocutory application no. 5140 of 2024 was disposed of.

¶1

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1461 of 2024

¶2

Ashfaque Khan @ Ismol @ Mohammad Asfak Khan, aged about 29 years, s/o-Md. Shatabuddin Khan, r/o-Majhartola, Sahebganj, P.O.-Sahebganj Town, P.O.-Borio (J), Dist.Sahebganj

¶3

Md. Imran Khan @ Devid, aged about 25 years, s/o- Md. Shatabuddin Khan, r/o-Majhartola, Sahebganj, P.O.-Sahebganj Town, P.O.-Borio (J), Dist.-Sahebganj

¶4

…... Petitioners

¶5

Versus

¶6

The State of Jharkhand

¶7

Sabana Azmi, w/o Md. Irshad Ali, r/o- Majhartola, Sahebganj, P.O.-Sahebganj Town, P.O.-Borio (Jirwabari), Dist.-Sahebganj

¶8

….. Opposite Parties

¶9

For the Petitioner : Mr. Abhijeet Kr. Singh, Advocate

¶10

For the State : Mr. Shiv Shankar Kumar, Addl. P.P For the O.P. No.2 : Mr. Neeraj Kr. Singh, Advocate

¶11

P R E S E N T

¶12

HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

¶13

By the Court:- Heard the parties.

¶14

This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer for quashing the entire criminal proceeding arising out of Borio (Jirwabari) P.S. Case No. 272 of 2023 involving the offences punishable under Sections 341, 323, 307, 354, 379, 447 and 34 of Indian Penal Code.

¶15

It is jointly submitted by the learned counsel for the petitioners and the learned counsel for the opposite party no.2 who is the informant-victim of the case by drawing attention of this Court to

¶16

the Interlocutory Application No.5140 of 2024 which is supported

¶17

Cr.M.P. No. 1461 of 2024

¶18

¶19

by separate affidavits of the petitioners and the opposite party no. 2 that therein it has been categorically mentioned that during the pendency of criminal cases both the parties have settled the dispute outside the court. It is further jointly submitted by the learned counsel for the petitioners and the learned counsel for the opposite party no.2 that the dispute between the parties is basically a civil dispute regarding the possession of the land and house property and there is no allegation of any sharp cutting weapon or fire arm being used in the alleged occurrence and in fact to make out the case a serious one, the offence punishable under Section 307 of Indian Penal Code is added even though there is no allegation of the petitioners intending to kill anybody. It is next jointly submitted by the learned counsel for the petitioners and the learned counsel for the opposite party no.2 that the dispute between the parties is a private dispute and no public policy is involved. It is further jointly submitted by the learned counsel for the petitioners and the learned counsel for the opposite party no.2 that in view of the compromise between the parties, the chance of the conviction of the petitioners is remote and bleak therefore, continuation of the criminal proceeding will amount to abuse of the process of the law. Hence, it is submitted that the entire criminal proceeding arising out of Borio (Jirwabari) P.S. Case No. 272 of 2023, be quashed and set aside.

¶20

Learned Addl. P.P. submits that State has no serious objection

¶21

to the prayer for quashing the entire criminal proceeding arising

¶22

Cr.M.P. No. 1461 of 2024

¶23

¶24

out of Borio (Jirwabari) P.S. Case No. 272 of 2023, in view of the compromise between the parties.

¶25

Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that the Hon’ble Supreme Court of India in the case of Narinder Singh and Others vs. State of Punjab & Another reported in ( 2014) 6 SCC 466 , in paragraph 29, has laid down the 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 Cr.P.C. while accepting the

¶26

settlement and quashing the proceedings which, reads as under:

¶27

“ 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:

¶28

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.

¶29

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:

¶30

(i) ends of justice, or

¶31

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

¶32

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

¶33

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.

¶34

29.4. On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly those

¶35

Cr.M.P. No. 1461 of 2024

¶36

¶37

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.

¶38

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.

¶39

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 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/delicate 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.

¶40

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 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.” (Emphasis supplied)

¶41

Cr.M.P. No. 1461 of 2024

¶42

¶43

Now coming to the facts of the case, because of some misunderstanding, this case has been instituted. In the facts of the case, the offence punishable under Section 307 of the Indian Penal Code is not made out. It is needless to mention here that in view of compromise between the parties, the possibility of conviction of the petitioners is remote and bleak and continuation of the case would put the accused-petitioners to oppression and prejudice and extreme injustice would be caused by not quashing this criminal case and continuation of the criminal proceeding will amount to abuse of the process of law; hence in the interest of the justice, the entire criminal proceeding is quashed qua the petitioners only.

¶44

Accordingly, the entire criminal proceeding arising out of Borio (Jirwabari) P.S. Case No. 272 of 2023, is quashed and set aside qua the petitioners only.

¶45