Kamesh & Ors. v. The State of Delhi and Ors.

1. The present petition under Article 226 of the Constitution of India read with Section 482 Cr.P.C. has been filed for quashing of FIR NO. 0097/2022 dated 12.02.2022 under Sections 307/34 IPC registered at PS Roop Nagar, Delhi against the present petitioners no.1 to 3 on the complaint of respondent no.2. 1.[1] In brief facts, it is stated that the said FIR was registered on the complaint of one Sonu Khari, who is respondent no.2. A copy of the FIR has been annexed as Annexure -A. The sum and substance of the FIR is reproduced hereunder:- 2022:DHC:4202 “Statement of Sonu Khari S/o Lt. Sh. Rakesh Khari R/o H. NO. 5764, Gali No. 6, New Chandrawal, Delhi, aged 37 years, Mob. 9910464960 stated that I reside at the above said address alongwith my family and do the job as a Contractor in MCD. Yesterday on dated 11.02.2022 at about 11: 30pm at night I was at my house, Tenant told me that a quarrel has taken place between your cousin brother and Rajan Khari who reside at Gali no. 5 New Chandrawal, Delhi. I immediately alongwith Gaurav’s mother reached at Gali no. 5 near the the house of Rajan Khari, where arguments between Gaurav and Rajan Khari were going on. That I and Gaurav;s mother tried t intervene and made Gaurav understand and were taking him back to the home. When we reached a little ahead in the street then Rajan Khari along with his nephew kale and Shivam came from back and Rajan Khari stated to me that saale I will kill you, I had left you before also and after saying this Rajan, Kale and Shivam started beating me with fist and blows and during this Rajan pull out the knife which was with him and Kale and Shivam caught hold me and Rajan stabs me one after another and said I will not leave you today. That my brother Gaurav tried to intervene then 2-3 more associates of Rajan Khari reached there in which one person was a Sikh. Then, that Sikh, Rajan, Kale and Shivam again started beating Gaurav in which Rajan, Shivam and Sikh caught hold Gaurav and Kale after taking knife from Rajan started stabbing one after another with knife. That we tried to intervene but Rajan’s associates again started beating us with fist, blows and sticks and kept on threatening to kill us. That I and Gaurav started bleeding a lot. That after seeing this, all of them while threatening ran away from there. That my Uncle’s (tau) son namely Shekhar also reached there who took us to the Hindu Rao Hospital where our treatment is going on. That my brother called the PCR. That you came to the hospital but due to ongoing treatment and pain we couldn’t able to give our statement. That now I had given you my statement. That Rajan Khari, Kale, Shivam and his associates with the intention of killing us has attacked us with deadly weapon. Legal action be taken against them. I can indentify the associates of Rajan Khari if they come before me. You have recorded my statement which I have read and heard nad found correct. SD English Sonu….” 1.[2] It has been further mentioned that respondent no.2, Sonu Khari and respondent no.5, Gaurav Khari had suffered injuries in respect of which, MLC bearing no. 650/2022 of Sonu Khari and MLC bearing no. 645/2022 of Gaurav Khari, were prepared. The petitioner no.1 had also suffered grievous injury. A cross FIR on the complaint of petitioner no.1 bearing NO. 100/2022 under Sections 325/341/506/34 IPC was also registered against the respondents. The petitioners and the respondents are residing in the same area and they are known to each other for the last number of years. The quarrel started when respondent no.2 was abusing in front of the house of the petitioner no.2, which was converted into a fight and during the quarrel, both the parties had suffered injuries and the fight was neither pre-planned nor pre-meditated. Now the petitioners and respondents no.2 to 6 have compromised the matter with the intervention of respectable persons of the society, friends and well-wishers. So, quashing of FIR has been prayed to create good atmosphere as they are residing in the same neighbourhood. 1.[3] Respondents no.2 to 6 are not interested to proceed further in the said case and petitioners and respondent no.2 to 6 are having no grievances against each other. There is no harm to the society at large and to the State. The matter is at the initial stage and trial will take a long time. Under these circumstances, it has been prayed that FIR No. 0097/2021 registered under Sections 307/34 IPC may be quashed in the interest of justice.

2. Notice was issued. Status Report has been filed. Status report is reiterating the facts about registration of FIR and the injuries suffered by respondent no.2 and respondent no.5 as detailed in their respective MLCs. The petitioner no.1 was arrested on 15.02.2022 and petitioner no.2 was arrested on 21.02.2022 and they remained in judicial custody. Weapon of offence being a knife was recovered at the instance of the petitioner no.2. Respondent no.5/victim sustained 13 injuries. Petitioner no.2 Rajan Khatri also threatened the complainant and his mother by pointing pistol towards them and hence, Section 27 of Arms Act has been added. The said pistol could not be recovered. Co-accused Ishprit and two unknown persons are avoiding their arrest. On the MLC of complainant, namely, Sonu Khatri, the opinion regarding nature of injury is ‘Simple’, the final injury report on the MLC No. 645/2022 of injured Gaurav Khatri is still awaited. Charge-sheet stands filed against the petitioners in which petitioner no.1 and 3 have been shown to have committed an offence under Section 307/34 IPC and petitioner no.2 has committed an offence under Section 307/34 IPC and Section 25/27 of the Arms Act. A cross FIR was also registered on the complaint of petitioner no.1, namely, Kamlesh Khari under Sections 325/341/506/34 IPC registered at PS Roop Nagar. 2.[1] As per the prosecution, petitioner no.2 is a bad character of PS Roop Nagar and he is previously involved in eight cases:

1 375 1995 ROOP NAGAR 307/34 IPC Due to very old case, status Not found 2 394 1997 ROOP NAGAR 147/148/149/323/34 IPC Due to very old case, status Not found 3 186 2000 ROOP NAGAR 324/34/IPC ACQUITED 4 204 2003 RAI 279/337/304A ACQUITED 5 239 2005 ROOP NAGAR 68/1/14 EXCISE ACT CONVICTED 6 159 2005 ROOP NAGAR 498A/34 IPC QUASHED 7 248 2006 ROOP NAGAR 308/324/341/394/34 IPC QUASHED 8 251 2018 ROOP NAGAR 3/4/9/55 DPG ACT CONVICTED 2.[2] It has been prayed that present petition may be dismissed. Copies of the MLCs of the injured have been also placed on record.

3. I have heard the arguments. 3.[1] Learned counsel for the petitioner has relied upon the following judgments:- 3.[2] Mohdv. Umair @ Umer vs. State (NCT of Delhi & ORS. & ANR.) in Crl.M.C. 674/2021. In this case, the accused charged under Section 307 IPC alleged to have stabbed the complainant in stomach on following altercations. The Hon’ble Delhi High Court quashed the FIR on the basis of compromise as the law settled by the Supreme Court permits quashing of FIR on compromise. 3.[3] Dr. Mohd. Ibrahim & Ors. vs. State of UP & Ors. in Crl.M.C. 4690/2021. In this case, the accused was charged under Section 147/148/149/323/504/506/427/307 IPC and the offences were noncompoundable as per Section 320 Cr.P.C., yet the chargesheet was quashed on the basis of compromise. The Hon’ble High Court quashed the proceedings on the basis of compromise as the law settled by the Supreme Court permits quashing of FIR/proceedings on compromise. The applicability and reliance covers the facts of the case as compromise between the complainant and accused is permissible under the law, considering the proposition of law settled by superior Courts. 3.[4] Lateben Jiteshbai Lathiya vs. State of Gujarat, Criminal Misc. Appl. No. 10288 of 2020. In this case, the FIR was registered under Section 307 IPC and the same was quashed by the Hon’ble High Court of Gujarat on the basis of compromise considering the mitigating circumstances and the law settled by the Supreme Court, which permits quashing of FIR/proceedings on compromise. 3.[5] Kush Thukral and Anr. Vs. State of Uttrakhand & Anr. Crl.Misc. Appl. (C-482) No. 2027 of 2018. In this case, the accused was charged under Section 307 IPC for firing 3 gunshots with intention to kill the complainant, yet the charge-sheet was quashed on the basis of compromise. The Hon’ble High Court quashed the proceedings on the basis of compromise as the law settled by the Supreme Court in the cases as mentioned in the judgment, observing that though the offence under Section 307 IPC is non-compoundable, yet the complainant filed the affidavit that the matter has been settled amicably. The Hon’ble Court felt it appropriate to quash the proceedings as the trial would have served no purpose.

3.6. State of Madhya Pradesh vs. Laxmi Narayan & Ors. (2019) 5 Supreme Court Cases 688. In this case, Hon’ble Supreme Court has laid down the guidelines with regard to quashing of FIRs in non-compoundable offences. As per the said guidelines, the learned counsel for the petitioners in the present case prays that on the basis of compromise it is a fit case for quashing of an FIR.

4. On the other hand, the prosecution has relied upon the following judgments.

4.1. In State of Madhya Pradesh vs. Laxmi Narain & Ors. (2019) 5 Supreme Court Cases 688, the reliance is placed on the following paragraphs:- “11.[1] However, the High Court has not at all considered the fact that the offences alleged were non-compoundable offences as per Section 320 of the Cr.P.C. From the impugned judgment and order, it appears that the High Court has not at all considered the relevant facts and circumstances of the case, more particularly the seriousness of the offences and its social impact. From the impugned judgment and order passed by the High Court, it appears that the High Court has mechanically quashed the FIR, in exercise of its powers under Section 482 Cr.P.C. The High Court has not at all considered the distinction between a personal or private wrong and a social wrong and the social impact. As observed by this Court in the case of State of Maharashtra vs. Vikram Anantrai Doshi, (2014) 15 SCC 29, the Court’s principal duty, while exercising the powers under Section 482 Cr.P.C. to quash the criminal proceedings, should be to scan the entire facts to find out the thrust of the allegations and the crux of the settlement. As observed, it is the experience of the Judge that comes to his aid and the said experience should be used with care, caution, circumspection and courageous prudence. In the case at hand, the High Court has not at all taken pains to scrutinise the entire conspectus of facts in proper perspective and has quashed the criminal proceedings mechanically. Even, the quashing of the FIR by the High Court in the present case for the offences under Sections 307 and 34 of the IPC, and that too in exercise of powers under Section 482 of the Cr.P.C. is just contrary to the law laid down by this Court in a catena of decisions. xxx

13. Now so far as the reliance placed upon the decision of this Court in the case of Shiji (supra), while quashing the FIR by observing that as the complainant has compromised with the accused, there is no possibility of recording a conviction, and/or the further trial would be an exercise in futility is concerned, we are of the opinion that the High Court has clearly erred in quashing the FIR on the aforesaid ground. It appears that the High Court has misread or misapplied the said decision to the facts of the cases on hand. The High Court ought to have appreciated that it is not in every case where the complainant has entered into a compromise with the accused, there may not be any conviction. Such observations are presumptive and many a time too early to opine. In a given case, it may happen that the prosecution still can prove the guilt by leading cogent evidence and examining the other witnesses and the relevant evidence/material, more particularly when the dispute is not a commercial transaction and/or of a civil nature and/or is not a private wrong. In the case of Shiji (supra), this Court found that the case had its origin in the civil dispute between the parties, which dispute was resolved by them and therefore this Court observed that, “19.‘…that being so, continuance of the prosecution where the complainant is not ready to support the allegations…will be a futile exercise that will serve no purpose’. In the aforesaid case, it was also further observed ‘that even the alleged two eyewitnesses, however, closely related to the complainant, were not supporting the prosecution version’, and to that this Court observed and held ‘that the continuance of the proceedings is nothing but an empty formality and Section 482 Cr.P.C. can, in such circumstances, be justifiably invoked by the High Court to prevent abuse of the process of law and thereby preventing a wasteful exercise by the courts below. Even in the said decision, in paragraph 18, it is observed as under:

16. Insofar as the present case is concerned, the High Court has quashed the criminal proceedings for the offences under Section 307 and 34 IPC mechanically and even when the investigation was under progress. Somehow, the accused managed to enter into a compromise with the complainant and sought quashing of the FIR on the basis of settlement. The allegations are serious in nature. He used the firearm also in commission of the offence. Therefore, the gravity of the offence and the conduct of the accused is not at all considered by the High Court and solely on the basis of a settlement between the accused and the complainant, the High Court has mechanically quashed the FIR. In exercise of power under Section 482 of the Code, which is not sustainable in the eye of the law. The High Court has also failed to note the antecedents of the accused.”

4.2. In State of Madhya Pradesh vs. Dhruv Gurjar (2019) 5 SCC 570; the relevant paragraphs relied upon by prosecution in are as under:- “16. At the outset, it is required to be noted that in the present appeals, the High Court in exercise of its powers under Section 482 Cr.P.C. has quashed the FIRs for the offences under Sections 307, 294 and 34 IPC and Sections 394 IPC, Sections 11/13 of the M.P.D.V.P.K. Act and Sections 25/27 of the Arms Act respectively, solely on the basis of a compromise between the complainant and the accused. That in view of the compromise at the stand taken by the complainant, considering the decision of this Court in Shiji, the High Court has observed that there is no chance of recording conviction against the accused persona and the entire exercise of a trial would be exercise in futility, the High Court has quashed the respective FIRs. 16.[1] However, the High Court has not at all considered the fact that the offences alleged were non-compoundable offences as per Section 320 Cr.P.C. From the impugned judgments and orders, it appears that the High Court particularly the seriousness of the offences and its social impact. From the impugned judgments and orders, it appears that the High Court has not at all considered the relevant facts and circumstances of the case, more particularly the seriousness of the offences and its social impact. From the impugned judgments and orders passed by the High Court, it appears that the High Court has mechanically quashed the respective FIRs, in exercise of its powers under Section 482 Cr.P.C. The High Court has not at all considered the distinction between a personal or private wrong and a social wrong and the social impact. As observed by this court in State of Maharashtra vs. Vikram Anantrai Doshi, the Court’s principal duty, while exercising the powers under Section 482 Cr.P.C. to quash the criminal proceedings, should be to scan the entire facts and to find out the thrust of the allegations and the crux of the settlement. As observed, it is the experience of the Judge that comes to his aid and the said experience should be used with care, caution, circumspection and courageous prudence. In the case at hand, the High Court has not at all taken pains to scrutinise the entire conspectus of facts in proper perspective and has quashed the criminal proceedings mechanically. Even, the quashing of the respective FIRs by the High Court in the present cases for the offences under Section 307, 294 and 34 IPC and Section 394 IPC, Sections 11/13 of M.P.D. V.P.K. Act and Sections 25/27 of the Arms Act respectively, and that too in exercise of powers under Section 482 Cr.P.C. is just contrary to the law laid down by this Court in a catena of decisions. xxx.

18. Now so far as the reliance placed upon the decision of this Court in Shif, while quashing the respective FIRs by observing that the complainant has compromised with the accused, there is no possibility of recording a conviction, and/or the further trial would be in exercise in futility is concerned, we are of the opinion that the High Court has clearly erred in quashing the FIRs on the aforesaid ground. It appears that the High Court has misread or misapplied the said decision to the facts of the cases on hand. The High Court ought to have appreciated that it is not in every case where the complainant has entered into a compromise with the accused, there may not be any conviction. Such observations are presumptive and many a time too early to opine. In a given case, it may happen that the prosecution still can prove the guilt by leading cogent evidence and examining the other witnesses and the relevant evidence/material, more particularly when the dispute is not a commercial transaction and/or of a civil nature and/or is not a private wrong. 19.[1] Therefore, the said decision may be applicable in a case which has its origin in the civil dispute between the parties; the parties have resolved the dispute that the offence is not against the society at large and/or the same may not have social impact; the dispute is a family/matrimonial dispute etc. The aforesaid decision may not be applicable in a case where the offences alleged are very serious and grave offences, having a social impact like offences under Section 307 IPC and Sections 25/27 of the Arms Act etc. Therefore, without proper application of mind to the relevant facts and circumstances, in our view, the High Court has materially erred in mechanically quashing the respective FIRs by observing that in view of the compromise, there are no chances of recording conviction and/or the further trial would be an exercise in futility. The High Court has mechanically considered the aforesaid decision of this Court in Shif without considering the relevant facts and circumstances of the case”.

4.3. In Chilakamarthi Venkateswarlu & Anr. Vs. State of Andra Pradesh (2020) 17 SCC 595, the relevant paragraphs are as under:- “12. The plenary inherent jurisdiction of the Court under Section 482 Cr.P.C. may be exercised to give effect to an order under the Code; to prevent abuse of the process of the Court; and to otherwise secure the ends of justice.