The High Court · 2006
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No. 4461 of 2023 Bina Mallik @ Binod Kumar Mallik …. Petitioner Mr. S. Sahoo, Advocate -versus- State of Odisha and another …. Opp. Parties Mr. D. Biswal, ASC Mr. S. K. Routray, Advocate For the Informant CORAM: JUSTICE CHITTARANJAN DASH Order No.
Decision
ORDER 09.01.2024 03. 1. Heard learned counsel for the Petitioner, the Informant and the State. 2. By means of this application, the Petitioner seeks the indulgence of this Court for quashing of FIR dated 13.05.2023 in connection with Mahakalapada PS Case No.142 of 2023 corresponding to GR Case No. 1529 of 2023 pending before the leaned SDJM, Kendrapara. 3. The background facts of the case are that on 13.05.2023 while the Informant who was then a student of +3 second year Arts prosecuting her studies in Sri Sri Bayaba College, Mahakalapara had been to the Punjab National Bank for obtaining ATM card. While returning, on the way about 200 meters away from the Bank, Page 1 of 12 // 2 // she waited for the conveyance to board to her house. In the meanwhile, a person came in a bike and volunteered to give her lift to her house giving an impression that he belongs to her village. As there was scorching sun, she agreed to the request and took the lift whereas the said person having dropped the Informant on the way forced her down from the vehicle and took away the mobile phone. Later, the Informant came to know that the present Petitioner was the said person. On the basis of the report, the police lodged the FIR. 4. It is submitted by learned counsel for the Petitioner that a false case was registered by the Petitioner due to misunderstanding and later having realized her mistake, she compromised the matter and sworn an affidavit before the Notary Public expressing her intention not to proceed with further in the matter. 5. On perusal of the affidavit reveals that the signature appearing against the deponent is that of the Informant and it tallies with the signature appearing in the report dated 13.05.2023. Further, the learned counsel has identified the Informant to be the deponent who sworn the affidavit. 6. The learned counsel for the Petitioner also relied upon the decisions in the matter of Navinder Singh & Others Vs. State of Punjab and another in CRLA No.686 of 2014 order dated 27.03.2014, B. Satish Reddy vs. State of Odisha reported in 2019 (III) ILR-Cut-725 and Unikrishnan @ Unikuttan Vs. State of Kerala in CRLMP No.18630 of 2016 order dated 01.03.2017. Page 2 of 12 // 3 // 7. The coordinate Bench of this Court, in the matter of B. Sathish Reddy @ Sathis Reddy reported in ILR Cuttack wherein it referred to the decision in the matter of Madan Mohan Abbot Vrs. State of Punjab reported in (2008) 4 Supreme Court Cases 582, Shiji @ Pappu –Vrs- Radhika reported in (2011) 10 Supreme Court Cases 705, Nikhil Merchant –Vrs. C.B.I. reported in A.I.R. 2009 Supreme Court 428, Gian Singh -Vrs-State of Punjab reported in (2012) 10 Supreme Court Cases 303 and Narinder Singh -Vrs- State of Punjab reported in (2014) in (2014) 6 Supreme Court Cases 466, the Court held as follows:- 8. In the case of Madan Mohan Abbot (supra), it is held as follows:- Kotwali, “2. This appeal is directed against the judgment dated 14th February 2006 whereby an application for quashing of FIR No.155 dated 17th November 2001 registered at Police Station Sections Amritsar 79,406,409,418,506/34 of the Indian Penal Code, 1860 on account of the complainant and the accused, has been declined on the ground that Section 406 was not compoundable as the amount involved was more than Rs.250/- and that the case was already fixed on 28th April 2006 for the examination of the prosecution witnesses. the compromise entered into between under xxx xxx xxx xxx 5. It is on the basis of this compromise that the application was filed in the High Court for quashing of proceedings which has been dismissed by the impugned order. We notice from a reading of the FIR and the other documents on record that the dispute was purely a personal one between two contesting parties and that it arose out of extensive business dealings between them and that there was absolutely no public policy involved in the nature of the allegations made against the accused. We are, therefore, of the opinion that no useful purpose would be served in continuing with the proceedings in the light of the compromise and also in the Page 3 of 12 // 4 // light of the fact that the complainant has on 11th January 2004 passed away and the possibility of a conviction being recorded has thus to be ruled out. 6. We need to emphasize that it is perhaps advisable that in disputes where the question involved is of a purely personal nature, the Court should ordinarily accept the terms of the compromise even in criminal proceedings as keeping the matter alive with no possibility of a result in favour of the the Courts, grossly prosecution overburdened as they are, cannot afford and that the time so saved can be utilized in deciding more effective and meaningful litigation. This is a common sense approach to the matter based on ground of realities and bereft of the technicalities of the law.” luxury which is a 9. In the case of Shiji @ Pappu (supra), it is held as follows:- “17. It is manifest that simply because an offence is not compoundable under Section 320 Cr.P.C. is by itself no reason for the High Court to refuse exercise of its power under Section 482 Cr.P.C. That power can in our opinion be exercised in cases where there is no chance of recording a conviction against the accused and the entire exercise of a trial is destined to be an exercise in futility. There is a subtle distinction between compounding of offences by the parties before the trial Court or in appeal on the one hand and the exercise of power by the High Court to quash the prosecution under Section 482 Cr.P.C. on the other. While a Court trying an accused or hearing an appeal against conviction, may not be competent to permit compounding of an offence based on a settlement arrived at between the parties in cases where the offences are not compoundable under Section 320, the High Court may quash the prosecution even in cases where the offences with which the accused stand charged are non- compoundable. The inherent powers of the High Court under Section 482 Cr.P.C. are not for that purpose controlled by Section 320 Cr.P.C. 18. Having said so, we must hasten to add that the plenitude of the power under Section 482 Cr.P.C. by itself, makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the power itself demands that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. It is neither necessary nor proper for us to enumerate the situations in Page 4 of 12 // 5 // which the exercise of power under Section 482 may be justified. All that we need to say is that the exercise of power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse of the process of law. The High court may be justified in declining interference if it is called upon to appreciate evidence for it cannot assume the role of an appellate court while dealing with a petition under Section 482 of the Criminal Procedure Code. Subject to the above, the High Court will have to consider the facts and circumstances of each case to determine whether it is a fit case in which the inherent powers may be invoked.” 10. In the case of Nikhil Merchant (supra), it is held as follows:- “22. Despite the ingredients and the factual content of an offence of cheating punishable under Section 420 IPC, the same has been made compoundable under Sub-section (2) of Section 320 Cr.P.C. with the leave of the Court. Of course, forgery has not been included as one of the compoundable offences, but it is in such cases that the principle enunciated in B.S. Joshi's case (2003 AIR SCW 1824) becomes relevant. 23. In the instant case, the disputes between the Company and the Bank have been set at rest on the basis of the compromise arrived at by them whereunder the dues of the Bank have been cleared and the Bank does not appear to have any further claim against the Company. What, however, remains is the fact that certain documents were alleged to have been created by the appellant herein in order to avail of credit facilities beyond the limit to which the Company was entitled. The dispute involved herein has overtones of a civil dispute with certain criminal facets. The question which is required to be answered in this case is whether the power which independently lies with this Court to quash the criminal proceedings pursuant to the compromise arrived at, should at all be exercised? B. SATHISH REDDY @ SATHISH REDDY –V- STATE & ORS 24. On an overall view of the facts as indicated hereinabove and keeping in mind the decision of this Court in B.S. Joshi's case (supra) and the compromise arrived at between the Company and the Bank as also clause 11 of the consent terms Page 5 of 12 // 6 // filed in the suit filed by the Bank, we are satisfied that this is a fit case where technicality should not be allowed to stand in the way in the quashing of the criminal proceedings, since, in our view, the continuance of the same after the compromise arrived at between the parties would be a futile exercise.” 11. In the case of Dimpey Gujral (supra), it is held as follows:- “8. 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 Sections 147, 148, 149, 323, 307, 452 and 506 of the IPC at Police Station Sector 3, Chandigarh and all consequential proceedings arising therefrom including the final report presented under Section 173 of the Code and charges framed by the trial Court are hereby quashed.” 12. In the case of Gian Singh (supra), it is held as follows:- “52. The question is with regard to the inherent power of the High Court in quashing the criminal proceedings against an offender who has settled his dispute with the victim of the crime but the crime in which he is allegedly involved is not compoundable under Section 320 of the Code. xxx xxx xxx xxx 57. Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a Court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal Court is circumscribed by the provisions contained in Section 320 and the Court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on Page 6 of 12 // 7 // record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment. 58. Where High Court quashes a criminal proceeding having regard to the fact that dispute between the offender and victim has been settled although the offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrong doing that seriously endangers and threatens the well-being of the society and it is not safe to leave the crimedoer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without the permission of the Court. In respect of serious offences like murder, rape, dacoity, etc; or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between the offender and victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavor 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 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 F.I.R 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. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard and fast category can be prescribed. 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 Page 7 of 12 // 8 // 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 a serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under the 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 the 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 the 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.” 13. In the case of Narinder Singh (supra), it is held as follows:- Page 8 of 12 // 9 // to quash the Code “8. We find that there are cases where the power of the High Court under Section 482 of the proceedings in those offences which are non-compoundable has been recognized. The only difference is that under Section 320(1) of the Code, no permission is required from the Court in those cases which are compoundable though the Court has discretionary power to refuse to compound the offence. However, compounding under Section 320(1) of the Code is permissible only in minor offences or in non-serious offences. Likewise, when the parties reach settlement in respect of offences enumerated in Section 320(2) of the Code, compounding is permissible but it requires the approval of the Court. In so far as serious offences are criminal proceedings upon concerned, quashing of compromise is within the discretionary powers of the High Court. In such cases, the power is exercised under Section 482 of the Code and proceedings are quashed. Contours of these powers were described by this Court in B.S. Joshi - Vrs.- State of Haryana : (2003) 4 SCC 675 which has been followed and further explained/ elaborated in so many cases thereafter, which are taken note of in the discussion that follows hereinafter. 9. At the same time, one has to keep in mind the subtle distinction between the power of compounding of offences given to Court under Section 320 of the Code and quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction conferred upon it under Section 482 of the Code. Once it is found that compounding is permissible only if a particular offence is covered by the provisions of Section 320 of the Code and the Court in such cases is guided solitary and squarely by the compromise between the parties, in so far as power of quashing under Section 482 of the Code is concerned, it is guided by the material on record as to whether the ends of justice would justify such exercise of power, although the ultimate consequence may be acquittal or dismissal of indictment. xxx xxx xxx xxx 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 Page 9 of 12 // 10 // 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 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. the other, those criminal cases having 29.4. On overwhelmingly character, and pre-dominantly 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. civil 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 Indian Penal Code 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 Indian Penal Code 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 Page 10 of 12 // 11 // Section 307 Indian Penal Code 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 Indian Penal Code. 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. facie assessment of 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 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 Indian Penal Code 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 Indian Penal Code and conviction is already recorded of a heinous crime and, Page 11 of 12 // 12 // therefore, there is no question of sparing a convict found guilty of such a crime.” 14. In the matter of B. S. Joshi –Vrs. State of Haryana : (2003) 4 SCC 675 and the decisions discussed as held above since the matter has already been settled between the parties which arose out of a misunderstanding, in the opinion of this Court no useful purpose would be served in allowing the proceeding to continue more so when there is no chance of recording a conviction against the Petitioner in the case and the entire exercise of the trial against the Petitioner would be futile save and except an abuse of the process of law. Therefore, it would be proper and justified to exercise inherent power under Section 482 of the CrPC in the ends of justice to quash the FIR against the Petitioner. 15. In view of the forgoing discussion, the payer of the Petitioner is allowed and it is directed that the further proceeding pursuant to the FIR dated 13.05.2023 vide Mahakalapada PS Case No.142 of 2023 corresponding to GR Case No.1529 of 2023 pending in the court of the learned SDJM, Kendrapara stands quashed. 16. The CRLMC is accordingly allowed. Judge (Chittaranjan Dash) AKPradhan Signature Not Verified Digitally Signed Signed by: ANANTA KUMAR PRADHAN Designation: Sr. Steno Reason: Authentication Location: HIGH COURT OF ORISSA Date: 11-Jan-2024 10:53:26 Page 12 of 12