C482/589/2008 of RAVINDRA KUMAR TRIPATHI and ANR. Vs SHAHID HUSSAIN

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL-Criminal Misc. Application (C482) No. 589 of 2008

Ravindra Kumar Tripathi & another …………. Applicants

versus

Shahid Hussain …………. Respondent

Mr. Pankaj Chaturvedi, Advocate holding brief of Mr. Rakesh Thapliyal, Advocate for the applicant. None for the respondent.

Hon’ble U.C. Dhyani, J. (oral)

The applicants, by means of present application / petition under Section 482 of Cr.P.C., seek to quash the proceedings of criminal case no. 3081 of 2006, Shahid Hussain vs R.K. Tripathi and others, under Section 409 of IPC, pending in the court of Addl. Chief Judicial Magistrate, Kashipur, District Udham Singh Nagar.

2) criminal complaint case was filed by the respondent against the applicants. After the statements of the complainant / respondent and his witnesses under Sections 200 and 202 of Cr.P.C. were recorded, the accused-applicants were summoned to face the trial in respect offence punishable under Section 409 of IPC. Aggrieved against said order, present application under Section 482 of Cr.P.C. was filed by the applicants.

3) The sum and the substance of the allegations against the accused-applicants was that when the truck of the complainant was in the custody of applicants in the campus of the Forest Department some of the items of the

truck were taken away (by the applicants). Notice was issued to the respondent. It was ordered by this Court on 22.03.2013 that ‘service upon the respondent has not been affected on account of the fact that he is not residing at the given address. Thus, the Court will hear petitioners only’. None appeared for the respondent before this Court.

4) There is long list of events which followed the summoning order. This Court is not inclined to deliberate upon the same, in as much as, they are part and parcel of the affidavit filed by applicant no. 2. It will be mere repetition of facts, if the same are deliberated upon here. Suffice will it be to say at this stage that an application was moved by the respondent before the Addl. Chief Judicial Magistrate, Kashipur on 14.02.2007 stating that he is not willing to contest the criminal complaint case. Respondent was not willing to prosecute the applicants. Respondent prayed that the criminal complaint case filed by him against the applicants be dismissed. Such prayer was not accepted by learned Addl. Chief Judicial Magistrate, Kashipur. The reason assigned to the rejection of such application was attributed to the fact that offence punishable under Section 409 of IPC is non-compoundable offence. The fact that none has appeared on behalf of the respondent to contest the application under Section 482 of Cr.P.C., is indicative of the fact that complainant / respondent is not interested to prosecute the applicants. similar wish was expressed by the respondent before the court below by moving an application on 14.02.2007.

There was therefore, no question of filing of counter affidavit by the respondent.

5) In this way the averments contained in the application of applicant no. 2 (on behalf of both the applicants) remained unrebutted. The question is –when the respondent / complainant is not willing to prosecute the applicants, can he be forced to do so? Should this Court exercise its jurisdiction under Section 482 of Cr.P.C. to intervene in the matter? The reply to the above questions is found in the rulings of Gian Singh vs. State of Punjab and another (2013) 1 SCC (Cri) 160 and Amit Kapoor vs Ramesh Chander and another, (2013) 1 SCC (Cri) 986.

6)InGian Singh vs. State of Punjab and another (2013) 1 SCC (Cri) 160, Hon’ble Supreme Court has observed as below:

“The position that emerges from the above discussion can be summarized thus: the power of the High Court in quashing criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude 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 cases power to quash the criminal proceeding or complaint of F.I.R. may be exercised where the offender and victim have settled their dispute would depend on the facts 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 statues 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 cases, 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 proceedings or continuation of the criminal proceeding would tantamount to abuse of 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.”

7) The principles of law laid down by the

Hon’ble Apex Court in Amit Kapoor vs Ramesh Chander and another (supra), are worth mentioning in this context:

10. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute civil wrong with no element of criminality and do not satisfy the basic ingredients of criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of he evidence. from the record and documents annexed therewith to predominantly give rise and constitute civil wrong with no element of criminality and do not satisfy the basic ingredients of criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of he evidence.

……………………………………………….

16. Coupled with any or all of the above, where the court finds that it would amount to abuse of process of CrPC or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist.” finds that it would amount to abuse of process of CrPC or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist.”

8) Taking leaf out of the book of Hon’ble Apex Court, this Court is of the view that it will be futile exercise to keep the criminal complaint case pending before the Addl. Chief Judicial Magistrate, Kashipur, especially, when the complainant himself is not interested to pursue the case. Complainant is not willing to prosecute the accused persons. Even if he was not permitted to withdraw the complaint due to the technicalities involved in permitting him to withdraw the criminal complaint case, the fact remains, that it is the complainant who has to adduce evidence under Section 244 of Cr.P.C. Since he is not inclined to prosecute the accused persons therefore, the applicants are bound to be discharged sooner or later. In such situation, this Court should step in to quash the proceedings against the applicants and consequently the

application under Section 482 of Cr.P.C. deserves to be allowed.

9) The application / petition under Section 482 of Cr.P.C. is accordingly allowed. The proceedings of criminal case no. 3081 of 2006, Shahid Hussain vs R.K. Tripathi and others, under Section 409 of IPC, pending in the court of Addl. Chief Judicial Magistrate, Kashipur, District Udham Singh Nagar are hereby quashed.

(U.C. Dhyani, J.)

Dt. May 30, 2013. Negi