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Judgment
Sandeep Sharma, J.
In the instant proceedings, filed under S. 482 CrPC, a prayer has been made on behalf of petitioner for quashing of FIR No. 210/17 dated
22.9.2017, under Ss. 420 and 120B IPC, registered at Police Station Sadar, District Bilaspur, Himachal Pradesh as well as consequential proceedings
pending in the court of learned Chief Judicial Magistrate, Bilaspur.
For having a bird’s eye view, necessary facts as emerge from the record are that respondent No.2, Smt. Sunita Thakur filed a complaint before
the Judicial Magistrate 1st Class, Bilaspur under S 156(3) CrPC, alleging therein that persons namely Alisha and Gulshan Khan fraudulently made her
to deposit a sum of Rs.6.00 Lakh in the bank account of person namely Mustafa at Kerala on the pretext of getting work visa in favour of her son.
Above named complainant also alleged that Alisha and Gulshan Khan assured her that her son would be provided with work visa, however, the fact
remains that neither work visa was provided to her son nor money was refunded, as such, she was compelled to file complaint under Section 156(3)
before the Judicial Magistrate 1st Class, Bilaspur.
On the direction of the Judicial Magistrate 1st Class, Bilaspur, FIR detailed herein above came to be lodged at Police Station Sadar, Bilaspur.
During investigation, police found involvement of the present petitioner as well as other persons namely Mustafa and Jafar Shah in the crime, in as
much as amount of Rs.6.00 Lakh was found to have been deposited in the saving bank account of Mustafa at Kerala on the askance of the present
petitioner and Jafar Shah. Person namely Mustafa, by way of a petition i.e. CrMP(M) No. 166 of 2018, prayed for grant of bail on the ground that an
amount of Rs.8.00 Lakh stands paid to respondent No.2, however, aforesaid prayer of said person was not accepted in those proceedings, who
thereafter filed an independent petition i.e. CrMMO No. 95 of 2018 under S. 482 CrPC, praying therein for quashment of FIR, as has been taken note
herein above as well as consequential proceedings pending before the learned Chief Judicial Magistrate, Bilaspur.
This court having taken note of the compromise entered into between complainant-Sunita Thakur and Mustafa, whereby she was paid a sum of
Rs.8.00 Lakh in lieu of Rs.6.00 Lakh allegedly paid by her for procuring work visa for her son, quashed FIR No. 210/2017, dated 22.9.2017, vide
judgment dated 26.6.2018, qua him (Mustafa) only.
Mr. Sanjeev Bhushan, learned Senior Advocate duly assisted by Mr. Subhash Chandran K.R. Advocate, while inviting attention of this Court to the
judgment dated 26.6.2018 passed by this court in CrMMO No. 95 of 2018, titled Mustafa vs. State of Himachal Pradesh, contended that since
complainant-Sunita Thakur has already made a statement before this Court that she has received a sum of Rs.8.00 Lakh, as such, FIR lodged at her
behest may be quashed and set aside, present petition having been filed by petitioner also deserves to be allowed. Mr. Bhushan, learned Senior
Advocate, while making this court travel through the record, especially the status report fled by respondent-State, during the proceedings of the
petition, strenuously argued that there is no evidence, if any, collected on record by investigating agency suggestive of the fact that role, if any, was
ever played by the present petitioner at any stage of crime having been allegedly committed by him, as well as other accused, Alisha and Gulshan
Khan.
Mr. Bhushan, learned Senior Advocate, contended that as per investigation, Sunita Thakur (complainant) had deposited a sum of Rs.6.00 Lakh in the
account of Mustafa, who in his statement given to the police, stated that he was disclosed by the Jafar Shah, that some money was to be transferred
to his (Mustafa) account and that would be used for the construction of his (Jafar Shah) house. Mr. Bhushan, learned Senior Advocate also contended
that even bare perusal of complaint having been filed by the complainant to the Judicial Magistrate 1st Class under S. 156(3) CrPC, nowhere reveals
role, if any, of the present petitioner, in the alleged crime, rather, specific allegation is/was against Alisha and Gulshan Khan, who allegedly made her
deposit some amount into the saving bank account of Mustafa. Lastly, Mr. Bhushan, learned Senior Advocate contended that since a sum of Rs.8.00
Lakh stands paid to the complainant, prayer made in the instant petition for quashing of FIR, deserves to be accepted.
Mr. Dinesh Thakur, learned Additional Advocate General, while fairly acknowledging the factum with regard to receipt of a sum of Rs.8.00 Lakh
having been paid to the complainant pursuant to compromise arrived inter se her (complainant) and Mustafa, contended that there is ample evidence
on record to suggest that aforesaid amount was deposited in the account of Mustafa on the askance of present petitioner. However, Mr. Thakur,
learned Additional Advocate General was unable to point out any material available on record suggestive of the fact that, at any point in time,
complainant-Sunita Thakur had any conversation or contact with Faisel Babu (petitioner), who allegedly got a sum of Rs.6.00 Lakh deposited in the
account of Mustafa.
I have heard the learned counsel for the parties and gone through the record carefully.
Having heard the learned counsel representing the parties and perused record, this court finds that there is no direct evidence adduced on record by
the investigating agency to demonstrate that a sum of Rs.6.00 Lakh was deposited into the account of Mustafa at Kerala on the askance of present
petitioner, rather, Mustafa, in his statement has stated that a sum of Rs.6.00 Lakh was deposited in his account for the construction of house of one
co-accused, Jafar Shah. If statement of Mustafa made during his judicial interrogation, is read in its entirety, it suggests that he disclosed that his
account number was given to the present petitioner by Jafar Shah, who resides in Dubai. Allegedly, on 12.3.2017, a sum of Rs.6.00 Lakh was
deposited into the account of Mustafa, but definitely, there is no evidence available on record to connect the present petitioner with the aforesaid
transaction. If, for the sake of arguments, it is presumed to be correct that account number of Mustafa was given to the complainant on the askance
of co-accused Jafar Shah, even then this court is unable to find any document available on record suggestive of the fact that such account number
was ever provided to the complainant Sunita Thakur by Faisel Babu, rather, it is an admitted case of the investigating agency that Rs.6.00 Lakh came
to be deposited into the account of Mustafa on the askance of co-accused Alisha and Gulshan Khan.
At this stage, it may be noticed that in the proceedings having been filed by Mustafa i.e. CrMMO No. 95 of 2018, this court had an occasion to
peruse compromise/settlement arrived inter se complainant-Sunita Thakur and Mustafa, wherein factum with regard to receipt of Rs.8.00 Lakh in lieu
of Rs.6.00 Lakh stood recorded. On 20.3.2018, respondent No.2-Sunita Thakur stated on oath before this Court that she, of her own volition and
without there being any external pressure, has entered into compromise with the person namely Mohammad Mustafa son of Shri Mohammad, through
his next friend/ brother-in-law. She categorically stated before this court in those proceedings that she has received a sum of Rs.8.00 Lakh towards
full and final settlement and has no objection in case, FIR No. 210/2017 dated 22.9.2017 lodged at Police Station Sadar, Bilaspur, Himachal Pradesh,
at her instance, is quashed and set aside.
Mr. Sanjeev Bhushan, learned Senior Advocate, while inviting attention of this Court to the agreement/ compromise arrived inter se parties as well
as judgment passed by this court in CrMMO No. 95 of 2018, prayed that since nothing concrete has emerged against the petitioner, FIR as detailed
herein above, may be quashed and set aside alongwith consequential proceedings pending before the Judicial Magistrate 1st Class, Bilaspur.
Since the instant petition has been filed under Section 482 Cr.P.C, this Court deems it fit to consider the same in light of the judgment passed by
Hon’ble Apex Court in Narinder Singh and others versus State of Punjab and another (2014)6 SCC 466, whereby the Hon’ble Apex Court
has formulated guidelines for accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue
with the criminal proceedings. Perusal of judgment referred to above clearly depicts that in para 29.1, Hon’ble Apex Court has returned the
findings that 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 criminal proceedings even in
those cases which are not compoundable and where the parties have settled the matter between themselves, however, this power is to be exercised
sparingly and with great caution. Para Nos. 29 to 29.7 of the judgment are reproduced as under:-
“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 under Section 482 Cr.P.C the High Court is to form an opinion on either of the aforesaid two objectives.
29.3. Such a power is not 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 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, those criminal cases having overwhelmingly and pre-dominantly 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 is 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/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 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 later
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 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 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 crimeâ€.
Careful perusal of para 29.3 of the judgment suggests that such a power is not to be exercised in the cases 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.
Apart from this, offences 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. On the other hand, those
criminal cases having overwhelmingly and predominantly civil character, particularly arising out of commercial transactions or arising out of
matrimonial relationship or family disputes may be quashed when the parties have resolved their entire disputes among themselves.
The Hon’ble Apex Court in case Gian Singh v. State of Punjab and anr. (2012) 10 SCC 303 has held that power of the High Court in quashing
of the criminal proceedings or FIR or complaint in exercise of its inherent power is distinct and different from the power of a Criminal Court for
compounding offences under Section 320 Cr.PC. Even in the judgment passed in Narinder Singh’s case, the Hon’ble Apex Court has held
that while exercising inherent power of quashment under Section 482 Cr.PC the Court must have due regard to the nature and gravity of the crime
and its social impact and it cautioned the Courts not to exercise the power for quashing proceedings in heinous and serious offences of mental
depravity, murder, rape, dacoity etc. However subsequently, the Hon’ble Apex Court in Dimpey Gujral and Ors. vs. Union Territory through
Administrator, UT, Chandigarh and Ors. (2013( 11 SCC 497 has also held as under:-
“7. In certain decisions of this Court in view of the settlement arrived at by the parties, this Court quashed the FIRs though some of the offences
were non-compoundable. A two Judges’ Bench of this court doubted the correctness of those decisions. Learned Judges felt that in those
decisions, this court had permitted compounding of non-compoundable offences. The said issue was, therefore, referred to a larger bench. The larger
Bench in Gian Singh v. State of Punjab (2012) 10 SCC 303 considered the relevant provisions of the Code and the judgments of this court and
concluded as under: (SCC pp. 342-43, para 61)
The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or
FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a 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
In the light of the above observations of this court in Gian Singh, we feel that this is a case where the continuation of criminal proceedings would
tantamount to abuse of process of law because the alleged offences are not heinous offences showing extreme depravity nor are they against the
society. They are offences of a personal nature and burying them would bring about peace and amity between the two sides. In the circumstances of
the case, FIR No. 163 dated 26.10.2006 registered under Section 147, 148, 149, 323, 307, 452 and 506 of the IPC at Police Station Sector 3,
Chandigarh and all consequential proceedings arising there from including the final report presented under Section 173 of the Code and charges
framed by the trial Court are hereby quashed.â€
Recently the Hon’ble Apex Court in its latest judgment dated 4th October, 2017, titled as Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai
Karmur and others versus State of Gujarat and Another, passed in Criminal Appeal No.1723 of 2017 arising out of SLP(Crl) No.9549 of 2016,
reiterated the principles/ parameters laid down in Narinder Singh’s case supra for accepting the settlement and quashing the proceedings. It would
be profitable to reproduce para No. 13 to 15 of the judgment herein:
“13. The same principle was followed in Central Bureau of Investigation v. Maninder Singh (2016)1 SCC 389 by a bench of two learned Judges of
this Court. In that case, the High Court had, in the exercise of its inherent power under Section 482 quashed proceedings under Sections 420, 467, 468
and 471 read with Section 120-B of the Penal Code. While allowing the appeal filed by the Central Bureau of Investigation Mr Justice Dipak Misra
(as the learned Chief Justice then was) observed that the case involved allegations of forgery of documents to embezzle the funds of the bank. In such
a situation, the fact that the dispute had been settled with the bank would not justify a recourse to thepower under Section 482:
“…In economic offences Court must not only keep in view that money has been paid to the bank which has been defrauded but also the society at
large. It is not a case of simple assault or a theft of a trivial amount; but the offence with which we are concerned is well planned and was committed
with a deliberate design with an eye of personal profit regardless of consequence to the society at large. To quash the proceeding merely on the
ground that the accused has settled the amount with the bank would be a misplaced sympathy. If the prosecution against the economic offenders are
not allowed to continue, the entire community is aggrieved.
In a subsequent decision in State of Tamil Nadu v R Vasanthi Stanley (2016) 1 SCC 376, the court rejected the submission that the first
respondent was a woman “who was following the command of her husband†and had signed certain documents without being aware of the
nature of the fraud which was being perpetrated on the bank. Rejecting the submission, this Court held that:
“... Lack of awareness, knowledge or intent is neither to be considered nor accepted in economic offences. The submission assiduously presented
on gender leaves us unimpressed. An offence under the criminal law is an offence and it does not depend upon the gender of an accused. True it is,
there are certain provisions in Code of Criminal Procedure relating to exercise of jurisdiction Under Section 437, etc. therein but that altogether
pertains to a different sphere. A person committing a murder or getting involved in a financial scam or forgery of documents, cannot claim discharge
or acquittal on the ground of her gender as that is neither constitutionally nor statutorily a valid argument. The offence is gender neutral in this case.
We say no more on this score…â€
“…A grave criminal offence or serious economic offence or for that matter the offence that has the potentiality to create a dent in the financial
health of the institutions, is not to be quashed on the ground that there is delay in trial or the principle that when the matter has been settled it should be
quashed to avoid the load on the system…â€
The broad principles which emerge from the precedents on the subject may be summarized in the following propositions:
(i) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The
provision does not confer new powers. It only recognizes and preserves powers which inhere in the High Court;
(ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement
has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence.
While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The
power to quash under Section 482 is attracted even if the offence is non-compoundable.
(iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High
Court must evaluate whether the ends of justice would justify the exercise of the inherent power;
(iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent
an abuse of the process of any court;
(v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the
dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;
vi) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due
regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity
cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in
nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public
interest in punishing persons for serious offences;
(vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They
stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;
(viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil
flavour may in appropriate situations fall for quashing where parties have settled the dispute;
(ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a
conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and
(x) There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-
being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in
declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act
complained of upon the financial or economic system will weigh in the balance.â€
In the case at hand also, the offence alleged against the accused is under Ss.420 and 120B IPC, which do not involve offences of mental depravity
or of heinous nature like rape, dacoity or murder and as such, with a view to maintain harmony and peace in society, this court deems it appropriate to
quash the FIR as well as consequential proceedings thereto, especially keeping in view the fact that the complainant has compromised the matter with
the accused, in which case, the possibility of conviction is remote and no fruitful purpose would be served in continuing with the criminal proceedings.
Consequently, in view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court (supra), of FIR No. 210/17 dated
22.9.2017, under Ss. 420 and 120B IPC, registered at Police Station Sadar, District Bilaspur, Himachal Pradesh in its totality alongwith consequential
proceedings pending in the court of Chief Judicial Magistrate, Bilaspur, Himachal Pradesh and the petitioner-accused is acquitted of the charges
framed against him. Bail bonds, if any, furnished by the petitioner are discharged.
The petition is disposed of in the aforesaid terms, alongwith all pending applications. Passport of the petitioner be released forthwith.
CrMP No. 1384 of 2018
Infructuous. Copy dasti.