C482/1280/2022 of MOHAN DUTT SHARMA Vs STATE OF UTTARAKHAND

IN THE HIGH COURT OF UTTARAKHANDAT NAINITAL

Criminal Misc. Application No. 1280 of 2022

Mohan Dutt Sharma and others .....Applicants

State of Uttarakhand and others …..Respondents

Present:- Mr. T.A. Khan, learned Senior Advocate assisted by Mr. Mohd. Shafy, Advocate for the applicants. Mr. Pratiroop Pande, A.G.A., for the State of Uttarakhand. Mr. Abhishek Dutt, Advocate for respondent nos. 3 & 4.

Hon’ble Sharad Kumar Sharma, J (Oral)

The applicants to the present C-482, who are three in number, have put challenge to the cognizance order dated 11.01.2022, which has been passed by the court of Judicial Magistrate 1[st], Rudrapur, District Udham Singh Nagar, in Criminal Case No. 239 of 2022 “State Vs. Mohan Dutt Sharma”, and the consequential charge-sheet also, which was the foundation, of the issuance of the summoning order dated 11.01.2022, which was emanating from an F.I.R. No. 298 of 2019, for the offences under Section 307/34 of I.P.C., which was got registered at P.S. Gadarpur, District Udham Singh Nagar.

2. The parties to the present C-482 application, and particularly the injured-respondent no.4, and his father and natural guardian-respondent no.3, are present in person before the Court. The parties to the proceeding have submitted an application for composition of the offence, for

which they are been tried by the learned trial court of Judicial Magistrate 1[st], Rudrapur, in Criminal Case No. 239 of 2022 “State Vs. Mohan Dutt Sharma and others”.

3. In the compounding application, thus preferred, the parties to the proceedings, who are joint signatory to the compounding application, and which has been duly verified by the respective counsel for the parties, who have also jointly endorsed the compounding application, and have submitted, that the parties have settled their dispute in terms of the settlement, which has been referred to, in the compounding application and their respective affidavits filed in support thereto by the parties.

4. But, the compounding application itself, is being vehemently opposed by the learned Government Advocate, who has though served the of their to the copy objections compounding application to the respondent/applicant, but they have not been, able to file the objection in the Registry, they have placed the copy of the same before the Court and they have contended that owing to the nature of injury, which has been suffered by the victim, admittedly due to the fire arm shot, made by the present applicants, the Doctors have opined that the nature of injury, which was suffered by the . victim-respondent no.4, was ‘grievous in nature’Apart from that fact, the learned Government Advocate, has also opposed the compounding application, contending thereof that the offence under Section 307 of I.P.C., would not be compoundable, in

view of the bar created by the provisions contained under Section 320 of the Code of Criminal Procedure.

5. The parties to the proceedings are present in person before the Court today. The applicants are present in person, and they have been duly identified by senior counsel Mr. T.A. Khan. The respondent no.4, though he is minor, is being represented through his natural guardian-respondent no.3, who too is present in person and has supported the compounding application, contending thereof that since the incident has chanced inthe night of 6/7[th]of December, 2019, and it was suddenunprovokedaccident, which has chanced while the victim was rowing boat, to get across river, when he was fired by the present applicants, without giving any prior alarm.

6. After having considered, the statements made by the parties with whom this Court too has also interacted, this Court is apprehensive to consider the compounding application, under Section 320 of the Code of Criminal Procedure, particularly, looking to the seriousness of the injuries suffered by the respondent no.4, who is young boy of 15 years of age, whose future has been placed at stake. But then, this Court cannot be oblivious of the fact too thatthe Hon’ble Apex Court in catena of judgments have already dealt with the aspect of compounding of offences, which are not included under Section 320 of the Code of Criminal Procedure, while the Court exercising its inherent power under Section 482 of the Code of Criminal Procedure or under Article 226 of the Constitution of India and that was one of the

aspect, which was even considered by this Court, in relation to offence under Section 307 of the I.P.C..

7. Owing to the objection taken, in the context of medical report which was submitted, and with regards to the seriousness of the injuries and considering the objection taken by the learned Government Advocate, this Court before passing any orders on the compounding application, by putting rests to the criminal proceedings, drawn against the present applicants, by issuance of the cognizance order dated 11.01.2022, by the Court of Judicial Magistrate 1[st], Rudrapur, District Udham Singh Nagar, this Court is of the view that the respondent no.4, who is an injured minor, is required to be adequately compensated, in order to preserve his future or in order to enable him to meet up any future medical contingencies, which he may face in future on account of the injuries and its nature suffered by him, by the fire arm attack, made by the present applicants.

8. Considering the implications, about the ambit of exercise of powers by the Courts in their exercise of its 482 powers of the Code of Criminal Procedure, this Court in the matter of Pan Singh Rana Vs. State of Uttarakhand and anotherreported in 2018 Volume (2) U.D. 680, had considered the impact, as to under what circumstances, the heinous offence, which are not covered under Section 320 Cr.P.C., could be permitted to be compounded, in the light of the ratios of the Hon’ble Apex Court, as it has been referred thereto, and more particularly, when it relates to the

offence under Section 307 of I.P.C., which was also subject matter, which was under consideration in the said judgment, particularly, as observed in paragraph no. 26 of judgment of Pan Singh Rana (Supra).

9. Paragraph 26 of the said judgment is extracted as under:

“26. It was arising out of the judgment rendered by the Punjab and Haryana High Court, wherein, while exercising the jurisdiction under Section C-482 Cr.P.C., the High Court has declined to quash the F.I.R. under Sections 307, 324 and 323/34 I.P.C., based on the compromise entered between the victim and the offender and the reason for refusal which has been recorded by the Punjab and Haryana High Court was that the offence being heinous in nature would fall to be an offence not compoundable under Section 320 of the Cr.P.C and bar of Sub-section (9) of Section 320 of the Cr.P.C. come into play as it has an element of being social offence and also the stage at which, the settlement for the offences aforesaid was under consideration, was an issue before the High Court was the stage when the investigation stood completed, challan has been presented in the Court and the accused were charged and the matter was pending before the Trial Court. It was at that stage that in C-482 proceedings by way of criminal petition, prayer was made for quashing of the F.I.R.. In the said case, settlement thus arrived, following assertions were made :-

1. Complainant has specially made statement that he has no intention to prosecute the offender.

2. The situation where the complainant agrees that he has got no objection for quashing of the proceedings.

3. Where the offenders and the victim have undertaken in writing that in writing or by way of affidavit that they do not intent to undertake and indulge in any criminal offences against one another.

4. Based on the criminal offences alleged, they do not want to litigate any further.

5. As consequence of such settlement in writing or by way of affidavit, when it results into futile exercise on culmination of the criminal proceedings and,

6. Lastly, when in an event of declining to accept such settlement covering the aforesaid condition would result into unnecessary wastage of time of the Court as well as the Investigating Agency and would cause unnecessary hardship and wastage of time to the parties to the dispute.”

10. But, still the present case can be put at different pedestal altogether, particularly, when as already observed by this Court, it’s future of the

victim, which is at stake, and the applicants cannot be left scot-free, by compounding their offence under Section 307, which, though was held to be compoundable by the Hon’ble Apex Court, in the light of the judgment which has been considered in para 30 of Pan Singh Rana, which is extracted here under.

30. About the nature of offence as contemplated under Section 307 I.P.C. which is normally dealt with as to be public offence, this aspect was considered in Dimpey Gujral Case (Supra), which, in turn, while considering the ratio rendered in Gian Singh case (Supra), has held that if the three ratio are read harmoniously, it has been provided that the interpretation given to the offence under Section 307 IPC may be that they are social offence and it ought to be made punishable so as to made deterrent for offenders at large but simultaneously while referring to the said judgment of Dimpey Gujral (Supra), as well as Narinder Singh (Supra) has thus held that even at times, looking to the circumstances, which led to commission of offence the nature of injury inflicted, the circumstances of commission of offence, they do at times make an important consideration for compounding offence based on settlement the offences under Section 307 IPC also as to be personal offence and not an offence against the society. That is why in Narinder Singh (Supra) case, the Hon'ble Apex Court while drawing distinction as against the ratio laid down in the case of Rajendra Harakchand Bhandari Vs. State of Maharashtra reported in (2011) 13 SCC 311 and in the case of Shiji Alias Pappu and others Vs. Radhika and another, reported in (2011) 10 SCC 705 and in the case of State of Rajasthan Vs. Shambhu Kewat and another reported in (2014) 4 SCC 149, where these judgments have invariably held that the offence under Section 307 I.P.C. since being non-compoundable offence covered by the Sub-section (9) of Section 320 Cr.P.C would not be compoundable. Considering the ratio of making the offence as not compoundable, irrespective of the settlement arrived at between the parties, the Hon'ble Apex Court in Narinder Singh (Supra) has drawn distinction from the aforesaid judgment and has deviated to lay down the ratio that even the offence under Section 307 I.P.C., though heinous in nature, though at times it may be social offence, but, the same would still be dependent upon its own facts and circumstances which is the prerogative of the Court to consider in each case when the same is being decided on the basis of the settlement while exercising its plenary powers under Section 482 Cr.P.C. or under Article 226 /227 of the Constitution of India. It would be apt to refer to para 22 and 23 of the judgment of Narendra Singh (Supra) case.

"22. Thus, we find that in certain circumstances, this Court has approved the quashing of proceedings under Section 307 IPC whereas in some other cases, it is held that as the offence is of serious nature such proceedings cannot be quashed. Though in each of the aforesaid cases the view taken by this Court may be

justified on its own facts, at the same time this Court owes an explanation as to why two different approaches are adopted in various cases. The law declared by this Court in the form of judgments becomes binding precedent for the High Courts and the subordinate courts, to follow under Article 141 of the Constitution of India. Stare decisis is the fundamental principle of judicial decision-making which requires "certainty" too in law so that in given set of facts the course of action which law shall take is discernible and predictable. Unless that is achieved, the very doctrine of stare decisis will lose its significance. The related objective of the doctrine of stare decisis is to put curb on the personal preferences and priors of individual Judges. In way, it achieves equality of treatment as well, inasmuch as two different persons faced with similar circumstances would be given identical treatment at the hands of law. It has, therefore, support from the human sense of justice as well. The force of precedent in the law is heightened, in the words of Karl Llewellyn, by "that curious, almost universal sense of justice which urges that all men are to be treated alike in like circumstances".

23. As there is close relation between equality and justice, it should be clearly discernible as to how the two prosecutions under Section 307 IPC are different in nature and therefore are given different treatment. With this ideal objective in mind, we are proceeding to discuss the subject at length. It is for this reason we deem it appropriate to lay down some distinct, definite and clear guidelines which can be kept in mind by the High Courts to take view as to under what circumstances it should accept the settlement between the parties and quash the proceedings and under what circumstances it should refrain from doing so. We make it clear that though there would be general discussion in this behalf as well, the matter is examined in the context of the offences under Section 307 IPC."

11. But, there are certain checks and controls, which are required to be adopted by this Court, under the circumstances of the present case, in order to curb such type of heinous offences, which on being committed, as against an individual, impairing him for all times to come.While allowing the compounding application, and setting aside the proceedings of Criminal Case No.239 of 2022 “State versus Mohan Dutt Sharma”, this Court feels, it to be apt to balance and equities, and the applicants are

directed to pay compensation of Rs.1 lakh, each, to the victim-respondent no.4 and these directives determining the compensation to be made payable to the complainant-respondent, was offered by this Court during the course of proceedings, but, in order to make any statement by the learned Senior counsel for the applicant, he took break in the proceedings of the Court, in order to derive their consent.

12. The applicants, after having discussed the issue of compensation amongst themselves and with the senior counsel for the applicants, and on the revival of the proceedings of the present C-482 application, the applicant have made statement that they are willing to pay Rs.1 lac, each to the victim-respondent in order to compensate him for the physical losses, which he had suffered, on account of the ill fated event, which is now subject matter of criminal trial of Criminal Case No.239 of 2022. The Court of Judicial Magistrate-1[st], Rudrapur District Udham Singh Nagar, would only close the proceedings, as consequence of today’s judgment, only when the proof of remittance of amount of compensation totaling to Rs. 3,00,000/-, as directed above is placed before it by the applicants, which they undertake that they will be paying the amount within two weeks.

13. Subject to the aforesaid restrictions, the C-482 application is exclusively allowed, based upon the statements made by the parties to the proceedings including the complainant and the victim.

14. Consequently, the Criminal Case No.239 of 2022 “State versus Mohan Dutt Sharma” would stand quashed, only subject to compliance of the above conditions.

(Sharad Kumar Sharma, J.)

06.09.2022

Mamta/Reena