Shri Nand Kumar v. State of NCT of Delhi

Delhi High Court · 11 Feb 2016 · 2016:DHC:1155

Suresh Kait

Crl.M.C. No.5327/2013

2016:DHC:1155

criminal petition_allowed Significant

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The Delhi High Court quashed FIR and criminal proceedings under Sections 279 and 304-A IPC based on a settlement between parties, exercising inherent powers under Section 482 CrPC to prevent abuse of process and futility.

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Crl.M.C. No.5327/2013 HIGH COURT OF DELHI

JUDGMENT

delivered on: 11th February, 2016 CRL.M.C. No.5327/2013
SHRI NAND KUMAR ..... Petitioner Represented by: Mr.Sameer Mendiratta and
Ms.Kanchan Khurana, Advocates with Petitioner in person.

Versus

STATE OF NCT OF DELHI & ORS. ..... Respondents
Represented by: Mr.G.M.Farooqui, Addl.
Public Prosecutor for the State.
Mr. Ghanshyam Thakur, Advocate for Respondents
No.2 to 5 with Respondents No.2 to 5 in person.

CORAM:

HON’BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)

1. By way of this petition, the petitioner seeks quashing of FIR No.292/2011 registered at Police Station Paschim Vihar, New Delhi, for the offences punishable under Sections 279/304-A IPC and the consequential proceedings emanating therefrom against him.

2. Learned counsel appearing on behalf of the petitioner submits that in the incident dated 02.10.2011, one Chhote Lal met with an accident and succumbed to the injuries. Thereafter, the petitioner and the legal heirs of deceased Chhote Lal, i.e., respondents No.2 to 5 approached the 2016:DHC:1155 Mediation and Conciliation Centre, Tis Hazari Courts, Delhi and settled the matter amicably vide Settlement/Agreement dated 03.12.2013.

3. Notice in the present petition was issued on 19.12.2013, whereby this Court passed the following order:- “ Mr.Bipin Kumar Jha, Advocate, appears on behalf of respondents No.2 to 5 and submits that he will be placing on record his vakalatnama/power of attorney during the course of the day and that there is no other legal heirs of the deceased except respondents No.2 to 5 and further points out that their affidavits are on record giving no objection to the quashing of this FIR in view of Mediated Settlement (Annexure-B) in terms of which petitioners are required to pay a sum of Rs.1.80 lac to the legal heirs of deceased-Chhote Lal, irrespective of fate of this petition. Learned counsel for petitioner submits that pleabargaining is not applicable in cases under Section 304- A of IPC and seeks time to place on record judgment holding so. However, learned counsel for petitioner hands over a demand draft Rs.1.80 lac of 12th December, 2013 to respondent No.2, who is identified to be wife of deceased and she accepts it on behalf of respondents No.3 to 5 as well and submits that there is no objection to the quashing of this FIR. Respondents No.2 to 5, present in the Court, have been identified to the legal heirs of deceased by SI Tej Singh on the basis of identity proof i.e. voters I-cards produced by them.”

4. Thereafter, the matter remained adjourned on one pretext or the other. Pursuant to order dated 23.11.2015, respondents No.2 to 5 are present in the Court through their counsel named above. The respondents No.2 to 5, i.e., legal heirs of deceased Chhote Lal have been identified by SI Tej Singh on the basis of their identity cards, i.e., Voter Identity Cards produced by them as is evident from the order dated 09.12.2013.

5. Learned counsel on instructions from the aforesaid respondents submits that the matter has been settled between the parties and the respondents No.2 to 5/legal heirs of deceased Chhote Lal have already received the total amount of Rs.4,80,000/- (Four Lakhs Eighty Thousand). Therefore, they do not want to pursue this case further against the petitioner.

6. Learned Additional Public Prosecutor appearing on behalf of the State submits that the petitioner has been chargesheeted and after framing of charges, matter is pending for trial before learned Trial Court. Since the parties have amicably settled the matter and the respondents do not want to pursue this case further against the petitioner, the State has no objection if the present petition is allowed.

7. Undisputedly, offence punishable under Section 279/304A of the IPC are non-compoundable, however, considering the facts and circumstances of the case and in exercise of the inherent powers under Section 482 of the Code of Criminal Procedure, 1973, this Court has power to accept the compromise. This issue has been decided by the Constitution Bench of the Supreme Court in the case of Gian Singh Vs. State of Punjab and Another (2012) 10 SCC 303, wherein the Apex Court has referred to a number of matters for the proposition that even a non-compoundable offence can also be quashed on the ground of a settlement agreement between the offender and the victim, if the circumstances so warrant; by observing as under: “58.....However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to the victim and the offender and the victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or FIR if it is satisfied that on the face of such settlement, there is hardly any likelihood of the offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated.”

8. While recognizing the need of amicable resolution of disputes in cases like the instant one, the aforesaid dictum has been affirmed by the Apex Court in a recent judgment in Narinder Singh & Ors. Vs. State of Punjab & Anr., 2014 6 SCC 466. The pertinent observations of the Apex Court are 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 the High Court is to form an opinion on either of the aforesaid two objectives.

29.3. Such a power is not to 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 the 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 hand, those criminal cases having overwhelmingly and predominantly 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.

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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 are 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 latter 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 to 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.”

9. Both the parties who are present in the Court today, approbate the aforesaid settlement and their statements recorded on 03.12.2013 and undertake to remain bound by the same.

10. As discussed above, offences punishable under Section 279/304A of the IPC are non-compoundable being of serious nature, however, if the Court feels that continuation of criminal proceedings will be an exercise in futility and justice in this case demands that the dispute between the parties is put to an end and peace is restored, it can order for quashing of the FIR or criminal proceedings as it is the duty of the Court to prevent continuation of unnecessary judicial process.

11. In view of the law discussed above, considering the settlement arrived at between the parties and the statements of respondent Nos.[2] to 5, and the learned Additional Public Prosecutor for the State, I am of the considered opinion that this matter deserves to be given a quietus as continuance of proceedings arising out of the FIR in question would be an exercise in futility.

12. Accordingly, the present petition is allowed with no order as to costs.

SURESH KAIT (JUDGE) FEBRUARY 11, 2016 sb/M

Shri Nand Kumar v. State of NCT of Delhi

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