Sanjay Kumar & Ors vs UT Of J&K And Ors

Sanjay Dhar, J

1) In CRM(M) No.614/2021, the petitioners have challenged FIR No.105/2017 for offences under Section 452, 354, 326 and 323 RPC registered with

Police Station, Rajbagh, District Kathua. The impugned FIR has been lodged against the petitioners on the complaint of respondent No.2 herein, who

happens to be the petitioner No.7 in CRM(M) No.621/2021. In CRM(M) No.621/2021, the petitioners have challenged FIR No.106/20217 for

offences under Section 452, 354, 325, 323, 201, 147, 148 RPC registered with Police Station, Rajbagh, District Kathua, which has been lodged at the

instance of one Banarso Devi, the mother of respondent No.3 herein.

2) Briefly stated, the allegations in FIR No.105/2017 are that on 13.06.2017, the accused trespassed into the house of the complainant and one of the

accused, namely, Ramit Sharma, assaulted and outraged the modesty of the complainant. It is also alleged that the accused armed with hockey sticks,

cricket bats and sharp edged weapons attacked the complainant besides using abusive language and threatening her of dire consequences.

3) The allegations leveled by the complainant in FIR No.106/2017 are that on 13.06.2017, the accused armed with sticks/hockey, illegally trespassed

into the house of the complainant and tried to outrage the modesty of her daughter, namely, Vijay Lakshmi. It is also alleged that the accused used

abusive language besides injuring the daughter of the complainant.

4) During the pendency of these two petitions, the parties have entered into a compromise and have placed on record original compromise deed. As

per this compromise deed, which has been executed on 21.09.2021, the parties have settled their disputes amicably as they want to live peacefully

without involving themselves in further litigation. It is further stated in the compromise deed that the executants do not want to pursue the impugned

FIRs. The compromise deed has been executed by complainants and accused in both the FIRs. The complainants have also made statements before

the Registrar Judicial on 02.12.2022, 2021, wherein they have admitted the contents of the deed of compromise as well as its execution.

5) I have heard learned counsel for the parties and perused the record of the case.

6) So far as the facts alleged in both the petitions, particularly those pertaining to the compromise arrived at between the parties in terms of

compromise deed dated 21.09.2021, are concerned, the same are not disputed. However, according to the petitioners, some of the offences are non-

compoundable. In the backdrop of this position, the question arises as to whether this Court has power to quash the proceedings, particularly when

some of the offences alleged to have been committed by the petitioners of both the petitions are non-compoundable in nature. The Supreme Court in

the case of Gian Singh. v. State of Punjab & another, reported in (2012) 10 SCC 303, while considering this aspect, has observed as under:

“57. 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..

7) Similarly, the Supreme Court in the case titled Narinder Singh & Ors. Vs. State of Punjab & anr, reported in (2014) 6 SCC 466, has laid down

guidelines for quashing of criminal proceedings. The guidelines are reproduced as under:

“31. 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:

(I) 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.

(II) 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 the High Court is to form an opinion on either of the aforesaid two objectives.

(III) 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.

(IV) 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.

(V) 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.

(VI) 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.

(VII) 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 crime.â€​

8) From a perusal of the aforesaid observations of the Supreme Court, it is clear that in the cases or disputes which have predominantly civil flavour

and where the wrong is basically private or personal in nature and the parties have resolved their entire dispute, the High Court will be within its

jurisdiction to quash the criminal proceedings if it is known that because of the compromise arrived at between the parties, there is remote possibility

of securing conviction of the accused. In fact, in such cases, the Supreme Court has clearly observed that it would amount to extreme injustice if

despite settlement having been arrived at by the parties, the criminal proceedings are allowed to continue.

9) Adverting to the facts of the instant case, it is clear that the parties to the dispute, i.e., complainants of both the impugned FIRs, have entered into a

compromise whereby they have decided not to pursue the prosecution against accused in the FIRs. Therefore, once the rival groups have arrived at a

settlement as regards the basis of the dispute, allowing the prosecutions to continue merely because some of the offences alleged against the accused

are non-compoundable in nature would amount to great injustice to both the parties and, in fact, it will amount to frittering away the fruits of

compromise that has been arrived at between the parties, who happen to be neighbours and want to live peacefully. The continuance of criminal

proceedings against the petitioners of the two petitions, in these circumstances, will be nothing but an abuse of process of law.

10) Taking conspectus of the aforesaid discussion, both the petitions are allowed. Accordingly, FIR No.105/2017 for offences under Section 452, 354,

326 and 323 RPC and FIR No.106/20217 for offences under Section 452, 354, 325, 323, 201, 147, 148 RPC, both registered with Police Station,

Rajbagh, District Kathua, as also the proceedings emanating therefrom, are quashed.