Fareed And Others vs State Of Uttarakhand & Another

R.C. Khulbe, J

By way of present application, moved under Section 482 of Cr.P.C., applicants seek to quash the judgment and order dated 23.01.2016 passed by

learned Judicial Magistrate/ Civil Judge (S.D.), Kashipur, Udham Singh Nagar in criminal case no.213 of 2010 (New No.1214 of 2015), State Vs.

Abid (deceased) and others†under Sections 147, 148, 324/149, 325/149, 452, 504 and 506 IPC, P.S. Kashipur, District Udham Singh Nagar whereby

the applicants have been sentenced accordingly, in terms of compromise arrived between the parties.

After perusal of the FIR, it would reveal that respondent no.2 lodged an FIR on 01.08.2001 at Police Station Kashipur, District Udham Singh Nagar

with the allegations that when respondent no.2 was sitting at his home with his mother-Smt. Jarina Khatoon and Julfikar Khan at about 1 p.m., Abid

Pehlwan, Fareed, Shahid, Javed, Ibrahim and Sultan Bharati entered their house along with Sword, Sticks in their hands. Abid Pehalwan urged the

other accused to kill them and gave first stroke with sword to younger brother of respondent no.2, namely, Mohd. Harun. All the other accused

followed him and started beating both of them continuously with sticks. Abid also snatched gold chain from the complainant/ respondent no.2 and

Rs.12,000/- kept in his pocket. On raising the alarm, people of the locality entered their house and the accused fled from the spot assuming them to be

dead.

The parties have filed a Compounding Application (CRMA No.3966 of 2019) to show that the parties have buried their differences and have settled

their disputes amicably.

Learned counsel for the State opposed the present compounding application on the ground that after the conviction compounding is not permissible

and also contended that the offences punishable under Sections 147, 148, 324/149, and 452 of IPC are non-compoundable offences. The said

submission of learned counsel for the State is contrary to Sub-Section (5) of Section 320 Cr.P.C. and the judgment of Hon’ble Apex Court inG ian

Singh v. State of Punjab and another, (2013) 1 SCC (Cri) 160. It will be useful to reproduce herein Sub-Section (5) of Section 320 Cr.P.C. as follows:

“320 (5)- When the accused has been committed for trial or when he has been convicted and an appeal is pending, no composition for the offence

shall be allowed without the leave of the Court to which he is committed, or, as the case may be, before which the appeal is to be heard.â€​

Learned counsel for the applicants argued that a Co-ordinate Bench of this Court vide order dated 27.11.2014 has allowed compounding application

(C-482 No.1531 of 2014) in similar matter where the applicant was convicted but the appeal was pending before Sessions Court against the order of

conviction.

The Apex Court has dealt with the consequence of a 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 a bar to the exercise of

power of quashing. It is, however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a

power.â€​

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.

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

650.

Learned counsel for the parties also drew the 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:

“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.â€​

Parties are present in the Court today and they are duly identified by their respective counsel.

Although the offences punishable 147, 148, 324/149, and 452 of IPC are non-compoundable offences, however, in view of rulings of the

Hon’ble Apex Court in the judgments supra and also considering the fact that complainant has filed an affidavit stating that the matter has been

settled amicably between the parties, it would be just and appropriate to allow the present compounding application in the interest of justice.

Accordingly, the compounding application is allowed. The judgment and order dated 23.01.2016 passed by learned Judicial Magistrate/ Civil Judge

(S.D.), Kashipur, Udham Singh Nagar in criminal case no.213 of 2010 (New No.1214 of 2015), State Vs. Abid (deceased) and others†under

Sections 147, 148, 324/149, 325/149, 452, 504 and 506 IPC, P.S. Kashipur, District Udham Singh Nagar whereby the applicants have been convicted

and sentenced is hereby quashed, qua the present applicants only, on the basis of compromise arrived among the parties.

The conviction and sentence recorded vide judgment and order dated 23.01.2016 by the trial court is also set aside. Accused-applicants stands

acquitted of the charges of Sections 147, 148, 324/149, 325/149 and 452 of IPC. Accused-applicants are on bail. Their bail bonds are cancelled and

sureties stand discharged. They need not to surrender.

The Criminal Misc. Application (C-482 Petition) No. 2747 of 2019 is thus disposed of in terms of compromise arrived at between the parties.

Criminal appeal no.30 of 2016, “Fareed and others Vs. State of Uttarakhand†pending against the conviction of the applicants has since

rendered infructuous, therefore, the same be disposed of as infructous by the lower appellate court in view of this judgment.

Pending applications, if any, also stand disposed of accordingly.