W.P.(CRL)/3395/2018 of KHEEM CHAND MEHLAWAT & ORS Vs THE STATE & ANR

* IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(CRL) 3395/2018 KHEEM CHAND MEHLAWAT & ORS

..... Petitioner

Through: Mr. L.S. Bindra and Mr.Satyam Mohanty, Advs.

versus

THE STATE & ANR

..... Respondent

Through: Ms. Iti Pandey, Adv. for Ms. Nandita Rao, ASC (Crl.) with SI Pawan Kumar, P.S. Kalkaji.

Mr. Rohit K. Naagpal, Adv. for R-2 and R-3. Mr. Naresh Kumar, DRO, Forest Department.

CORAM:

HON'BLE MR. JUSTICE NAJMI WAZIRI

O R R% 29.01.2019

1. This petition seeks quashing of FIR No. 121/2018, registered under sections 420/120-B/506 IPC at Police Station Kalkaji, New Delhi on complaint made by respondent Nos. 2 and 3 apropos sale of immovable property which was under acquisition proceedings. The settlement between the parties has been recorded in Memorandum of Understanding dated 21.06.2018 whereunder Rs. 1.05 crores is to be paid to complainant nos. 2 & 3. Of the said amount, Rs.35 lacs i.e. Rs.17.5 lacs each to respondent nos. 2 and 3 remain to be paid and has been paid. Since the complainants do not have counsel, accordingly, Mr. Rohit K. Naagpal, Advocate, present in the Court is appointed as their counsel for the day. He

submits that since the lis has been settled, the complainants would not like to pursue their complaint any further. They have no objection to the quashing of the FIR. An amended Memo of Parties has been filed arraying all persons affected by the transactions mentioned in the aforesaid MoU. R-4 is Dr. Sanjeev Yadav in whose favour all rights have been made by the petitioners. Since he does not have counsel. Mr. Amit Khemka, Advocate, present in the Court, is appointed as his counsel for the day. He submits, upon instructions, that the said respondent is conscious of his rights under the law and would have no objection to the quashing of the FIR. The parties are present in the Court and have been identified by the Investigating Officer of the case.

2. In the aforesaid circumstances and keeping in mind the decision of the Supreme Court in Gian Singh Vs. State of Punjab and Another (2012) 10 SCC 303, holding that even non-compoundable offence can also be quashed on the ground of settlement agreement between the offender and the victim, if the circumstances so warrant; by observing as under:

“58. ....However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to the victim and the offender and the victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or FIR if it is satisfied that on the face of such settlement, there is hardly any likelihood of the offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated.”

3. The amicable resolution of cases like the present one is an abiding objective. The dictum of Gian Singh(supra) has been affirmed by the Apex Court in Narinder Singh & Ors. Vs. State of Punjab & Anr. 2014 6 SCC 466 while observing:

“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:

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.

29.2. 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: (i) ends of justice, or

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

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

29.3. Such 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 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.

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.

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.

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 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/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 strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement andquash 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.

29.7. While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play 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 position to decide the case finally on merits and to come to 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 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 heinous crime and, therefore, there is no question of sparing convict found guilty of such crime.”

4. The parties have re-iterated the terms of the aforesaid settlement and undertake to remain bound by the same. Since the complainants themselves do not wish to pursue the complaint against the petitioners, the substratum of the complaint/FIR dissipates and any further proceeding apropos the same FIR would be an exercise in futility. It would, therefore, be in the interest of justice that the FIR be quashed. Accordingly, FIR No. 121/2018, registered under sections 420/120-B/506 IPC at Police Station Kalkaji, Delhi and all the proceedings arising therefrom are quashed.

5. At this stage, the learned counsel for the petitioners state that as an expression of the contrition of the petitioners for them having caused unnecessary burden upon the administrative machinery engaged in the maintenance of law and order, the petitioners are ready and willing to undertake some social work. Accordingly, all the ten petitioners are directed to plant 200 trees each in the 177 acres of land which has recently been reclaimed by the District Magistrate, South. For this purpose they will report to the Deputy Conservator of Forests (South) on 11.02.2019 at 11 am who shall direct them about the same. The plantation exercise shall be completed by 31.03.2019. The plants shall be of deciduous indigenous variety and they shall be of nursery age of three and half years old and have height of at least six feet. The petitioners will take care of the plants for the next six months. Depending upon the soil type and topography, the DCF may consider the following types of trees for plantation:-

(i) Gular (Cluster Fig) (ii) Kadamba (Burflower Tree)

(iii) Pilkhan (White Fig)

(iv) Jaamun (Black Plum)

(v) Bargad (Banyan Tree)

(vi) Mango

(vii) Amaltas (Golden Shower)

(viii) Mahua (Butter Tree)

[Indian Laburnum]

7. The petition is allowed in the above terms.

8. copy of this order be given dasti to the learned counsel for the parties under signature of the Court Master. Additionally, copy be served upon the DCF (South) for due compliance.

JANUARY 29, 2019/acm

NAJMI WAZIRI, J