WPCRL/239/2017 of Manish Chauhan AND OTHERS Vs State Of Uttarakhand AND OTHERS

IN THE HIGH COURT OF UTTARAKHAND ATNAINITAL

Criminal Writ Petition No. 239 of 2017

Manish Chauhan and others ....….……Petitioners

versus

State of Uttarakhand and others ………. Respondents

Mr. Gaurav Singh, Advocate, present for the writ petitioners. Mr. Prem Kaushal, Brief Holder, present for the State/respondents no. 1&2. Mr. Nikhil Singhal, Advocate, present for the respondents no. 3 to 5.

Mr. Prem Kaushal, Brief Holder, present for the State/respondents no. 1&2.

Hon’ble U.C. Dhyani, J. (Oral)

1. The writ petitioners, by means of present Writ Petitions, seek to quash the FIR dated 17.02.2017 being Case Crime No. 38 of 2017, under Sections 323, 147, 148, 504 & 506 of IPC and Section 3 (1) (X) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘the SC/ST Act’) lodged by respondent no. 3, at Police Station Kankhal, District Haridwar.to quash the FIR dated 17.02.2017 being Case Crime No. 38 of 2017, under Sections 323, 147, 148, 504 & 506 of IPC and Section 3 (1) (X) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘the SC/ST Act’) lodged by respondent no. 3, at Police Station Kankhal, District Haridwar.

2. Compounding application being CLMA No. 1561 of 2017 has been filed by the parties to indicate that they have buried their differences and have settled their disputes amicably. Joint compromise applications have also been filed by them along with affidavits of Anand (complainant), Anoop Kumar (respondent no. 4), Aman (respondent no.5) and Mainsh Kumar (petitioner no.1) have been filed. Complainant Anand is present in 2017 has been filed by the parties to indicate that they have buried their differences and have settled their disputes amicably. Joint compromise applications have also been filed by them along with affidavits of Anand (complainant), Anoop Kumar (respondent no. 4), Aman (respondent no.5) and Mainsh Kumar (petitioner no.1) have been filed. Complainant Anand is present in

person, duly identified by his counsel Gaurva Singh, Advocate. Private respondents say that they have no grievance left against the writ petitioners and are not interested in prosecuting them. In other words, private respondents have exonerated the present petitioners. Petitioners no. 1 & 2 are also present in person duly identified by their counsel Mr. Gaurav Singh, Advocate.

3.The question, which arises for consideration of this Court is- whether the respondent no. 3 should be permitted to compound the offences punishable under Sections 323, 147, 148, 504 and 506 of IPC and Section 3(1)(X) of the SC/ ST Act or not? is- whether the respondent no. 3 should be permitted to compound the offences punishable under Sections 323, 147, 148, 504 and 506 of IPC and Section 3(1)(X) of the SC/ ST Act or not?

4. Learned counsel for the petitioners drew attention of this Court towards the ruling of Gian Singh v. State of Punjab and another, (2013) 1 SCC (Cri) 160, in which Hon’ble Supreme Court observed as below: Court towards the ruling of Gian Singh v. State of Punjab and another, (2013) 1 SCC (Cri) 160, in which Hon’ble Supreme Court observed as below:

“The position that emerges from the above discussion can be summarised 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 or 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 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 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 proceeding 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.”

5. Hon’ble Supreme Court has permitted compounding of such offences in the decision of Nikhil Merchant v. CBI and another, (2008) 9 SCC 650. offences in the decision of Nikhil Merchant v. CBI and another, (2008) 9 SCC 650.

6.The Apex Court has dealt with the consequence of compromise in regard to non-compoundable offences in the case of B.S. Joshi and others vs. State of Haryana and another, (2003)4 SCC 675 and has held as below: compromise in regard to non-compoundable offences in the case of B.S. Joshi and others vs. State of Haryana and another, (2003)4 SCC 675 and has held as below:

“If for the purpose of securing the ends of justice, quashing of FIR becomes necessary, Section 320 Cr.P.C. would not be bar to the exercise of power of quashing. It is, however, different matter depending upon the facts and circumstances of each case whether to exercise or not such power.”

Thus, the High Court, in exercise of its

inherent power can quash criminal proceedings or FIR or complaint and Section 320 of Cr.P.C. does not limit or affect the powers under Section 482 of the Code of Criminal Procedure, 1973.

Learned counsel for the petitioners and private respondents submitted that even if the contents of the FIR be conceded to be true, no ingredients of Section 3(1)(X) of the SC/ST Act are prima facie made out against the petitioners, in the sense that informant nowhere said that the accused were not the members of SC/ST and they used those words intentionally in order to humiliate him (victim) in place within the public view knowing it that they (victims) belonged to community of Scheduled Castes or Scheduled Tribes. respondents submitted that even if the contents of the FIR be conceded to be true, no ingredients of Section 3(1)(X) of the SC/ST Act are prima facie made out against the petitioners, in the sense that informant nowhere said that the accused were not the members of SC/ST and they used those words intentionally in order to humiliate him (victim) in place within the public view knowing it that they (victims) belonged to community of Scheduled Castes or Scheduled Tribes.

Learned counsel for the parties prayed that since no offence under Section 3 (I)(x) of the SC/ST Act is made out against the petitioners even on bare reading of contents of the first information report, therefore, they may be permitted to compound the said offence. Both the counsels have placed judgment rendered by Hon’ble Apex Court in Gorige Pentaiah vs. State of Andhra Pradesh and others, (2008) 12 SCC 531 to argue jointly that no prima facie case under Section 3(1)(x) of the SC/ST Act is made out against the petitioners. It will be useful to reproduce para 6 of Gorige Pentaiah’s case herein below for convenience: under Section 3 (I)(x) of the SC/ST Act is made out against the petitioners even on bare reading of contents of the first information report, therefore, they may be permitted to compound the said offence. Both the counsels have placed judgment rendered by Hon’ble Apex Court in Gorige Pentaiah vs. State of Andhra Pradesh and others, (2008) 12 SCC 531 to argue jointly that no prima facie case under Section 3(1)(x) of the SC/ST Act is made out against the petitioners. It will be useful to reproduce para 6 of Gorige Pentaiah’s case herein below for convenience:“In the instant case, the allegation of respondent No.3 in the entire complaint is that on 27.5.2004, the appellant abused them with the name of their caste. According to the basic ingredients of Section 3(1)(x) of the Act, the complainant ought to have alleged that the accused-appellant was not member of the Scheduled Caste or Scheduled Tribe and he (respondent No. 3) was intentionally insulted or intimidated by the accused with intent to humiliate in place within public view. In the entire complaint, nowhere it is mentioned that the accused-appellant was not member of the Scheduled Caste or Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate respondent No. 3 in place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law.”

9. This Court cannot separate the offences under IPC and offence under the SC/ST Act and, therefore, it will be advisable to permit the complainant/victims to compound the offences alleged against the petitioners in the larger interest of the society. offence under the SC/ST Act and, therefore, it will be advisable to permit the complainant/victims to compound the offences alleged against the petitioners in the larger interest of the society.

10. While deciding whether to exercise its inherent powers or not, timing 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 accept the settlement to quash the criminal proceedings. 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, not, timing 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 accept the settlement to quash the criminal proceedings. 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,

the High Court can exercise it’s powers, but after prima facie assessment of the circumstances/material mentioned therein. This Court is of the opinion that this matter deserves to be given quietus as continuance of proceedings arising out of the first information report in question would be an exercise in futility.

11. Reliance may also be placed in the decisions of Deena Nath Prasad & others vs. State & Anr. rendered by Hon’ble Delhi High Court on 12[th] January, 2016 in Criminal Misc. Case no. 111 of 2016, Rajendra Sharma and others vs. State of U.P. & another rendered by Hon’ble Allahabad High Court on 18.11.2015 in C-482 Petition No. 31751 of 2015 and Satwinder Singh & another vs. State of Punjab & others rendered by Punjab & Haryana High Court on 29.05.2012 in Crl. Misc. Case No.22608 of 2011. Prasad & others vs. State & Anr. rendered by Hon’ble Delhi High Court on 12[th] January, 2016 in Criminal Misc. Case no. 111 of 2016, Rajendra Sharma and others vs. State of U.P. & another rendered by Hon’ble Allahabad High Court on 18.11.2015 in C-482 Petition No. 31751 of 2015 and Satwinder Singh & another vs. State of Punjab & others rendered by Punjab & Haryana High Court on 29.05.2012 in Crl. Misc. Case No.22608 of 2011.12. The instant case is squarely covered by the aforesaid rulings of the Hon’ble Supreme Court. The obvious reply to the question posed in para 3 is in the affirmative in view of the ruling of Hon’ble Apex Court in Gian Singh’s case(supra). of the Hon’ble Supreme Court. The obvious reply to the question posed in para 3 is in the affirmative in view of the ruling of Hon’ble Apex Court in Gian Singh’s case(supra).

13.In view of the above, the FIR dated 17.02.2017 being Case Crime No. 38 of 2017, under Sections 323, 147, 148, 504 & 506 of IPC and Section 3 (1) (X) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘the SC/ST Act’) lodged by respondent no. 3, at Police Station Kankhal, District Haridwar and the criminal proceedings emanating therefrom, are hereby quashed qua the writ petitioners. Crime No. 38 of 2017, under Sections 323, 147, 148, 504 & 506 of IPC and Section 3 (1) (X) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘the SC/ST Act’) lodged by respondent no. 3, at Police Station Kankhal, District Haridwar and the criminal proceedings emanating therefrom, are hereby quashed qua the writ petitioners.

14.Criminal Writ Petition No. 239 of 2017 is thus disposed of in terms of compromise arrived at between the parties.in terms of compromise arrived at between the parties.

(U.C. Dhyani, J.)

23.02.2017

Rawat/Kaushal