Quashing of FIR New Guideline by Supreme Court
The Hon”ble Supreme Court held that:-
In the absence of such guidelines in India, Courts go by their
own perception about the philosophy behind the prescription of certain
specified penal consequences for particular nature of crime. For some
deterrence and/or vengeance becomes more important whereas another
Judge may be more influenced by rehabilitation or restoration as the
goal of sentencing. Sometimes, it would be a combination of both
which would weigh in the mind of the Court in awarding a particular
sentence. However, that may be question of quantum.
What follows from the discussion behind the purpose of sentencing is
that if a particular crime is to be treated as crime against the
society and/or heinous crime, then the deterrence theory as a
rationale for punishing the offender becomes more relevant, to be
applied in such cases. Therefore, in respect of such offences which
are treated against the society, it becomes the duty of the State to
punish the offender. Thus, even when there is a settlement between
the offender and the victim, their will would not prevail as in such
cases the matter is in public domain. Society demands that the
individual offender should be punished in order to deter other
effectively as it amounts to greatest good of the greatest number of
persons in a society. It is in this context that we have to
understand the scheme/philosophy behind Section 307 of the Code.
We would like to expand this principle in some more detail. We
find, in practice and in reality, after recording the conviction and
while awarding the sentence/punishment the Court is generally governed
by any or all or combination of the aforesaid factors. Sometimes, it
is the deterrence theory which prevails in the minds of the Court,
particularly in those cases where the crimes committed are heinous in
nature or depicts depravity, or lack morality. At times it is to
satisfy the element of “emotion” in law and retribution/vengeance
becomes the guiding factor. In any case, it cannot be denied that the
purpose of punishment by law is deterrence, constrained by
considerations of justice. What, then, is the role of mercy,
forgiveness and compassion in law? These are by no means comfortable
questions and even the answers may not be comforting. There may be
certain cases which are too obvious namely cases involving heinous
crime with element of criminality against the society and not parties
inter-se. In such cases, the deterrence as purpose of punishment
becomes paramount and even if the victim or his relatives have shown
the virtue and gentility, agreeing to forgive the culprit, compassion
of that private party would not move the court in accepting the same
as larger and more important public policy of showing the iron hand of
law to the wrongdoers, to reduce the commission of such offences, is
more important. Cases of murder, rape, or other sexual offences etc.
would clearly fall in this category. After all, justice requires long
term vision. On the other hand, there may be, offences falling in the
category where “correctional” objective of criminal law would have to
be given more weightage in contrast with “deterrence” philosophy.
Punishment, whatever else may be, must be fair and conducive to good
rather than further evil. If in a particular case the Court is of the
opinion that the settlement between the parties would lead to more
good; better relations between them; would prevent further occurrence
of such encounters between the parties, it may hold settlement to be
on a better pedestal. It is a delicate balance between the two
inflicting interests which is to be achieved by the Court after
examining all these parameters and then deciding as to which course of
action it should take in a particular case.
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[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.686/2014
(arising out of S.L.P.(Criminal) No.9547 of 2013)
Narinder Singh & Ors. ……Appellants
Vs.
State of Punjab & Anr. …Respondents
J U D G M E N T
A.K.SIKRI,J.
1. The present Special Leave Petition has been preferred against
the impugned judgment/final order dated 8.10.2013 passed by the High
Court of Punjab and Haryana at Chandigarh in Criminal Miscellaneous
Petition No.27343/2013. It was a petition under Section 482 of the
Code of Criminal Procedure (hereinafter referred to as the “Code”) for
quashing of FIR No.121/14.7.2010 registered under Sections
307/324/323/34,IPC, on the basis of compromise dated 22.7.2013 entered
into between the petitioners ( who are accused in the said FIR) and
respondent No.2 (who is the complainant). The High Court has refused
to exercise its extraordinary discretion invoking the provisions of
Section 482 of the Code on the ground that four injuries were suffered
by the complainant and as per the opinion of the Doctor, injury No.3
were serious in nature. The High Court, thus, refused to accept the
compromise entered into between the parties, the effect whereof would
be that the petitioners would face trial in the said FIR.
2. Leave granted.
3. We have heard counsel for the parties at length.
4. It may be stated at the outset that the petitioners herein, who
are three in number, have been charged under various provisions of the
IPC including for committing offence punishable under Section 307, IPC
i.e. attempt to commit murder. FIR No.121/14.7.2010 was registered.
In the aforesaid FIR, the allegations against the petitioners are that
on 9.7.2010 at 7.00 A.M. while respondent No.2 was going on his
motorcycle to bring diesel from village Lapoke, Jasbir Singh, Narinder
Singh both sons of Baldev Singh and Baldev Singh son of Lakha Singh
attacked him and injured him. Respondent No.2 was admitted in Shri
Guru Nanak Dev Hospital, Amritsar. After examination the doctor found
four injuries on his person. Injury No.1 to 3 are with sharp edged
weapons and injury No.4 is simple. From the statement of injured and
MLR’s report, an FIR under sections 323/324/34 IPC was registered.
After X-ray report relating to injury No.3, section 307 IPC was added
in the FIR
5. After the completion of investigation, challan has been
presented in the Court against the petitioners and charges have also
been framed. Now the case is pending before the Ld.Trial Court,
Amritsar, for evidence.
6. During the pendency of trial proceedings, the matter has been
compromised between the petitioners as well as the private respondent
with the intervention of the Panchayat on 12.07.2013. It is clear
from the above that three years after the incident, the parties
compromised the matter with intervention of the Panchayat of the
village.
7. It is on the basis of this compromise, the petitioners moved
aforesaid criminal petition under section 482 of the Code for quashing
of the said FIR. As per the petitioners, the parties have settled the
matter, as they have decided to keep harmony between them to enable
them to live with peace and love. The compromise records that they
have no grudge against each other and the complainant has specifically
agreed that he has no objection if the FIR in question is quashed.
Further, both the parties have undertaken not to indulge in any
litigation against each other and withdraw all the complaints pending
between the parties before the court. As they do not intend to
proceed with any criminal case against each other, on that basis the
submission of the petitioners before the High Court was that the
continuance of the criminal proceedings in the aforesaid FIR will be a
futile exercise and mere wastage of precious time of the court as well
as investigating agencies.
8. The aforesaid submission, however, did not impress the High
Court as the medical report depicts the injuries to be of grievous
nature. The question for consideration, in these circumstances, is as
to whether the court should have accepted the compromise arrived at
between the parties and quash the FIR as well as criminal proceedings
pending against the petitioner.
9. The ld. counsel for the State has supported the aforesaid
verdict of the High Court arguing that since offence under Section 307
is non-compoundable, the respondents could not have been acquitted
only because of the reason that there was a compromise/settlement
between the parties. In support, the learned counsel for the
respondent-State has relied upon the judgment of this Court in the
case of Rajendra Harakchand Bhandari vs. State of Maharashtra (2011)
13 SCC 311 wherein this Court held that since offence under Section
307 is not compoundable, even when the parties had settled the matter,
compounding of the offence was out of question. Said settlement along
with other extenuating circumstances was only taken as the ground for
reduction of the sentence in the following manner:
“We must immediately state that the offence under Section
307 is not compoundable in terms of Section 320(9) of the
Code of Criminal Procedure, 1973 and, therefore, compounding
of the offence in the present case is out of question.
However, the circumstances pointed out by the learned Senior
Counsel do persuade us for a lenient view in regard to the
sentence. The incident occurred on 17.5.1991 and it is almost
twenty years since then. The appellants are agriculturists by
occupation and have no previous criminal background. There
has been reconciliation amongst parties; the relations
between the appellants and the victim have become cordial and
prior to the appellants’ surrender, the parties have been
living peacefully in the village. The appellants have already
undergone the sentence of more than two-and-a half years.
Having regard to those circumstances, we are satisfied that
ends of justice will be met if the substantive sentence
awarded to the appellants is reduced to the period already
undergone while maintaining the amount of fine.
Consequently, while confirming the conviction of the
appellants for the offences punishable under Section 307 read
with Section 34, Section 332 read with Section 34 and Section
353 read with Section 34, the substantive sentence awarded to
them by the High Court is reduced to the period already
undergone. The fine amount and the default stipulation remain
as it is.”
10. The learned counsel for the appellant, on the other hand,
submitted that merely because an offence is non-compoundable under
Section 320 of the Code would not mean that the High Court is denuded
of its power to quash the proceedings in exercising its jurisdiction
under Section 482 of the Cr.P.C. He argued that Section 320(9) of the
Code cannot limit or affect the power of the High Court under Section
482 of the Cr.P.C. Such a power is recognized by the Supreme Court in
catena of judgments. He further submitted that having regard to the
circumstances in the present case where the fight had occurred on the
spot in the heat of the moment inasmuch as both sides were verbally
fighting when the petitioners had struck the victim, this assault was
more of a crime against the individual than against the society at
large. He further submitted that this Court in Dimpey Gujral v. Union
Territory through Administrator 2012 AIR SCW 5333 had quashed the FIR
registered under sections 147,148,149,323,307,452 and 506 of the IPC.
11. We find that there are cases where the power of the High Court
under Section 482 of the Code to quash the proceedings in those
offences which are uncompoundable 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 concerned,
quashing of criminal proceedings upon 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 vs.
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.
12. 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. Such a
distinction is lucidly explained by a three-Judge Bench of this Court
in Gian Singh vs. State of Punjab & Anr. (2012) 10 SCC 303. Justice
Lodha, speaking for the Court, explained the difference between the
two provisions in the following manner:
“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 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.
B.S.Joshi, Nikhil Merchant, Manoj Sharma and Shiji do
illustrate the principle that the High Court may quash criminal
proceedings or FIR or complaint in exercise of its inherent
power under Section 482 of the Code and Section 320 does not
limit or affect the powers of the High Court under Section 482.
Can it be said that by quashing criminal proceedings in
B.S.Joshi, Nikhil Merchant, Manoj Sharma and Shiji this Court
has compounded the non-compoundable offences indirectly? We do
not think so. There does exist the distinction between
compounding of an offence under Section 320 and quashing of a
criminal case by the High Court in exercise of inherent power
under Section 482. The two powers are distinct and different
although the ultimate consequence may be the same viz. acquittal
of the accused or dismissal of indictment.”
13. Apart from narrating the interplay of Section 320 and Section
482 of the Code in the manner aforesaid, the Court also described the
extent of power under Section 482 of the Code in quashing the criminal
proceedings in those cases where the parties had settled the matter
although the offences are not compoundable. In the first instance it
was emphasized that the power under Sec. 482 of the Code is not to be
resorted to, if there is specific provision in the Code for redressal
of the grievance of an aggrieved party. It should be exercised very
sparingly and should not be exercised as against the express bar of
law engrafted in any other provision of the Code. The Court also
highlighted that in different situations, the inherent power may be
exercised in different ways to achieve its ultimate objective.
Formation of opinion by the High Court before it exercises inherent
power under Section 482 on either of the twin objectives, (i) to
prevent abuse of the process of any court, or (ii) to secure the ends
of justice, is a sine qua non.
14. As to under what circumstances the criminal proceedings in a non-
compoundable case be quashed when there is a settlement between the
parties, the Court provided the following guidelines:
“Where the High Court quashes a criminal proceeding having
regard to the facts that the dispute between the offender and
the 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 wrongdoing that seriously endangers and threatens
the well-being of the society and it is not safe to leave the
crime-doer 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 the Prevention of
Corruption Act or the offences committed by public servants
while working in that capacity, the settlement between the
offender and the 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 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. 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.”
Thereafter, the Court summed up the legal position in the following
words:
“The position that emerges from the above discussion can be
summarized 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 plentitude
with no statutory limitation but it has to be exercised in
accord with the guidelines engrafted in such power viz.: (i) to
secure the ends of justice, or (ii) to prevent abuse f the
process of any court. In what cases power to quash the criminal
proceeding or complaint or FIR may be exercised where the
offender and the 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 the offender in relation to
the offences under special statutes like the 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 predominatingly
civil flavor stand on a 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, the
High Court may quash the criminal proceedings if in its view,
because of the compromise between the offender and the victim,
the possibility of conviction is remote and bleak and
continuation of the criminal case would put the 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
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 the criminal case is put
to an end and if the answer to the above question(s) is in the
affirmative, the High Court shall be well within its
jurisdiction to quash the criminal proceeding.”
15. The Court was categorical that in respect of serious offences or
other offences of mental depravity or offence of merely dacoity under
special statute, like the Prevention of Corruption Act or the offences
committed by Public Servant while working in that capacity. The mere
settlement between the parties would not be a ground to quash the
proceedings by the High Court and inasmuch as settlement of such
heinous crime cannot have imprimatur of the Court.
16. The question is as to whether offence under Section 307 IPC
falls within the aforesaid parameters. First limb of this question is
to reflect on the nature of the offence. The charge against the
accused in such cases is that he had attempted to take the life of
another person (victim). On this touchstone, should we treat it a
crime of serious nature so as to fall in the category of heinous
crime, is the poser.
17. Finding an answer to this question becomes imperative as the
philosophy and jurisprudence of sentencing is based thereupon. If it
is heinous crime of serious nature then it has to be treated as a
crime against the society and not against the individual alone. Then
it becomes the solemn duty of the State to punish the crime doer. Even
if there is a settlement/compromise between the perpetrator of crime
and the victim, that is of no consequence. Law prohibits certain acts
and/or conduct and treats them as offences. Any person committing
those acts is subject to penal consequences which may be of various
kind. Mostly, punishment provided for committing offences is either
imprisonment or monetary fine or both. Imprisonment can be rigorous
or simple in nature. Why those persons who commit offences are
subjected to such penal consequences? There are many philosophies
behind such sentencing justifying these penal consequences. The
philosophical/jurisprudential justification can be retribution,
incapacitation, specific deterrence, general deterrence,
rehabilitation, or restoration. Any of the above or a combination
thereof can be the goal of sentencing. Whereas in various countries,
sentencing guidelines are provided, statutorily or otherwise, which
may guide Judges for awarding specific sentence, in India we do not
have any such sentencing policy till date. The prevalence of such
guidelines may not only aim at achieving consistencies in awarding
sentences in different cases, such guidelines normally prescribe the
sentencing policy as well namely whether the purpose of awarding
punishment in a particular case is more of a deterrence or retribution
or rehabilitation etc.
18. In the absence of such guidelines in India, Courts go by their
own perception about the philosophy behind the prescription of certain
specified penal consequences for particular nature of crime. For some
deterrence and/or vengeance becomes more important whereas another
Judge may be more influenced by rehabilitation or restoration as the
goal of sentencing. Sometimes, it would be a combination of both
which would weigh in the mind of the Court in awarding a particular
sentence. However, that may be question of quantum.
What follows from the discussion behind the purpose of sentencing is
that if a particular crime is to be treated as crime against the
society and/or heinous crime, then the deterrence theory as a
rationale for punishing the offender becomes more relevant, to be
applied in such cases. Therefore, in respect of such offences which
are treated against the society, it becomes the duty of the State to
punish the offender. Thus, even when there is a settlement between
the offender and the victim, their will would not prevail as in such
cases the matter is in public domain. Society demands that the
individual offender should be punished in order to deter other
effectively as it amounts to greatest good of the greatest number of
persons in a society. It is in this context that we have to
understand the scheme/philosophy behind Section 307 of the Code.
19. We would like to expand this principle in some more detail. We
find, in practice and in reality, after recording the conviction and
while awarding the sentence/punishment the Court is generally governed
by any or all or combination of the aforesaid factors. Sometimes, it
is the deterrence theory which prevails in the minds of the Court,
particularly in those cases where the crimes committed are heinous in
nature or depicts depravity, or lack morality. At times it is to
satisfy the element of “emotion” in law and retribution/vengeance
becomes the guiding factor. In any case, it cannot be denied that the
purpose of punishment by law is deterrence, constrained by
considerations of justice. What, then, is the role of mercy,
forgiveness and compassion in law? These are by no means comfortable
questions and even the answers may not be comforting. There may be
certain cases which are too obvious namely cases involving heinous
crime with element of criminality against the society and not parties
inter-se. In such cases, the deterrence as purpose of punishment
becomes paramount and even if the victim or his relatives have shown
the virtue and gentility, agreeing to forgive the culprit, compassion
of that private party would not move the court in accepting the same
as larger and more important public policy of showing the iron hand of
law to the wrongdoers, to reduce the commission of such offences, is
more important. Cases of murder, rape, or other sexual offences etc.
would clearly fall in this category. After all, justice requires long
term vision. On the other hand, there may be, offences falling in the
category where “correctional” objective of criminal law would have to
be given more weightage in contrast with “deterrence” philosophy.
Punishment, whatever else may be, must be fair and conducive to good
rather than further evil. If in a particular case the Court is of the
opinion that the settlement between the parties would lead to more
good; better relations between them; would prevent further occurrence
of such encounters between the parties, it may hold settlement to be
on a better pedestal. It is a delicate balance between the two
inflicting interests which is to be achieved by the Court after
examining all these parameters and then deciding as to which course of
action it should take in a particular case.
20. We may comment, at this stage, that in so far as the judgment in
the case of Bhandari (supra) is concerned, undoubtedly this Court
observed that since offence under Section 307 is not compoundable in
terms of Section 320(9) of the Cr.P.C., compounding of the offence was
out of question. However, apart from this observation, this aspect is
not discussed in detail. Moreover, on reading para 12 of the said
judgment, it is clear that one finds that counsel for the appellant in
that case had not contested the conviction of the appellant for the
offence under Section 307 IPC, but had mainly pleaded for reduction of
sentence by projecting mitigating circumstances.
21. However, we have some other cases decided by this Court
commenting upon the nature of offence under Section 307 of IPC. In
Dimpey Gujral case (supra), FIR was lodged under sections
147,148,149,323,307,552 and 506 of the IPC. The matter was
investigated and final report was presented to the Court under Section
173 of the Cr.P.C. The trial court had even framed the charges. At
that stage, settlement was arrived at between parties. The court
accepted the settlement and quashed the proceedings, relying upon
the earlier judgment of this Court in Gian Singh vs. State of Punjab &
Anr. 2012 AIR SCW 5333 wherein the court had observed that inherent
powers under section 482 of the Code are of wide plentitude with no
statutory limitation and the guiding factors are: (1) to secure the
needs of justice, or (2) to prevent abuse of process of the court.
While doing so, commenting upon the offences stated in the FIR, the
court observed:
“Since the offences involved in this case are of a
personal nature and are not offences against the society, we had
enquired with learned counsel appearing for the parties whether
there is any possibility of a settlement. We are happy to note
that due to efforts made by learned counsel, parties have seen
reason and have entered into a compromise.”
This Court, thus, treated such offences including one under section
307, IPC were of a personal nature and not offences against the
society.
22. On the other hand, we have few judgments wherein this Court
refused to quash the proceedings in FIR registered under section 307
IPC etc. on the ground that offence under section 307 was of serious
nature and would fall in the category of heinous crime. In the case
of Shiji vs. Radhika & Anr. (2011) 10 SCC 705 the Court quashed the
proceedings relating to an offence under section 354 IPC with the
following observations:
“We have heard learned counsel for the parties and perused
the impugned order. Section 320 of the Cr.P.C. enlists
offences that are compoundable with the permission of the
Court before whom the prosecution is pending and those that
can be compounded even without such permission. An offence
punishable under Section 354 of the IPC is in terms of
Section 320(2) of the Code compoundable at the instance of
the woman against whom the offence is committed. To that
extent, therefore, there is no difficulty in either quashing
the proceedings or compounding the offence under Section
354, of which the appellants are accused, having regard to
the fact that the alleged victim of the offence has settled
the matter with the alleged assailants. An offence
punishable under Section 394 IPC is not, however,
compoundable with or without the permission of the Court
concerned. The question is whether the High Court could and
ought to have exercised its power under section 482 the said
provision in the light of the compromise that the parties
have arrived at.”
23. In a recent judgment in the case of State of Rajasthan vs.
Shambhu Kewat & Ors. 2013 (14) SCALE 235, this very Bench of the
Court was faced with the situation where the High Court had accepted
the settlement between the parties in an offence under Section 307
read with Section 34 IPC and set the accused at large by acquitting
them. The settlement was arrived at during the pendency of appeal
before the High Court against the order of conviction and sentence of
the Sessions Judge holding the accused persons guilty of the offence
under Section307/34 IPC. Some earlier cases of compounding of offence
under Section 307 IPC were taken note of, noticing under certain
circumstances, the Court had approved the compounding whereas in
certain other cases such a course of action was not accepted. In that
case, this Court took the view that High Court was not justified in
accepting the compromise and setting aside the conviction. While
doing so, following discussion ensued:
“We find, in this case, such a situation does not arise.
In the instant case, the incident had occurred on 30.10.2008.
The trial court held that the accused persons, with common
intention, went to the shop of the injured Abdul Rashid on that
day armed with iron rod and a strip of iron and, in furtherance
of their common intention, had caused serious injuries on the
body of Abdul Rashid, of which injury number 4 was on his head,
which was of a serious nature.
Dr.Rakesh Sharma, PW5, had stated that out of the injuries
caused to Abdul Rashid, injury No.4 was an injury on the head
and that injury was “grievous and fatal for life”. PW8, Dr. Uday
Bhomik, also opined that a grievous injury was caused on the
head of Abdul Rashid. DR. Uday conducted the operation on
injuries of Abdul Rashid as a Neuro Surgeon and fully supported
the opinion expressed by PW5 Dr. Rakesh Sharma that injury No.4
was “grievous and fatal for life”.
We notice that the gravity of the injuries was taken note
of by the Sessions Court and it had awarded the sentence of 10
years rigorous imprisonment for the offence punishable under
Section 307 IPC, but not by the High Court. The High Court has
completely overlooked the various principles laid down by this
Court in Gian Singh (Supra), and has committed a mistake in
taking the view that, the injuries were caused on the body of
Abdul Rashid in a fight occurred at the spur and the heat of the
moment. It has been categorically held by this Court in Gian
Singh (supra) that the Court, while exercising the power under
Section 482, must have “due regard to the nature and gravity of
the crime” and “the social impact”. Both these aspects were
completely overlooked by the High Court. The High Court in a
cursory manner, without application of mind, blindly accepted
the statement of the parties that they had settled their
disputes and differences and took the view that it was a crime
against “an individual”, rather than against “the society at
large”.
We are not prepared to say that the crime alleged to have
been committed by the accused persons was a crime against an
individual, on the other hand it was a crime against the society
at large. Criminal law is designed as a mechanism for achieving
social control and its purpose is the regulation of conduct and
activities within the society. Why Section 307 IPC is held to be
non-compoundable, because the Code has identified which conduct
should be brought within the ambit of non-compoundable offences.
Such provisions are not meant, just to protect the individual,
but the society as a whole. High Court was not right in thinking
that it was only an injury to the person and since the accused
persons had received the monetary compensation and settled the
matter, the crime as against them was wiped off. Criminal
justice system has a larger objective to achieve, that is safety
and protection of the people at large and it would be a lesson
not only to the offender, but to the individuals at large so
that such crimes would not be committed by any one and money
would not be a substitute for the crime committed against the
society. Taking a lenient view on a serious offence like the
present, will leave a wrong impression about the criminal
justice system and will encourage further criminal acts, which
will endanger the peaceful co-existence and welfare of the
society at large.”
24. Thus, we find that in certain circumstances, this Court has
approved the quashing of proceedings under section 307,IPC whereas in
some other cases, it is held that as the offence is of serious nature
such proceedings cannot be quashed. Though in each of the aforesaid
cases the view taken by this Court may be justified on its own facts,
at the same time this Court owes an explanation as to why two
different approaches are adopted in various cases. The law declared
by this Court in the form of judgments becomes binding precedent for
the High Courts and the subordinate courts, to follow under Article
141 of the Constitution of India. Stare Decisis is the fundamental
principle of judicial decision making which requires ‘certainty’ too
in law so that in a given set of facts the course of action which law
shall take is discernable and predictable. Unless that is achieved,
the very doctrine of stare decisis will lose its significance. The
related objective of the doctrine of stare decisis is to put a curb on
the personal preferences and priors of individual Judges. In a way,
it achieves equality of treatment as well, inasmuch as two different
persons faced with similar circumstances would be given identical
treatment at the hands of law. It has, therefore, support from the
human sense of justice as well. The force of precedent in the law is
heightened, in the words of Karl Llewellyn, by “that curious, almost
universal sense of justice which urges that all men are to be treated
alike in like circumstances”.
25. As there is a close relation between the equality and justice,
it should be clearly discernible as to how the two prosecutions under
Section 307 IPC are different in nature and therefore are given
different treatment. With this ideal objective in mind, we are
proceeding to discuss the subject at length. It is for this reason
we deem it appropriate to lay down some distinct, definite and clear
guidelines which can be kept in mind by the High Courts to take a view
as to under what circumstances it should accept the settlement between
the parties and quash the proceedings and under what circumstances it
should refrain from doing so. We make it clear that though there
would be a general discussion in this behalf as well, the matter is
examined in the context of offences under Section 307 IPC.
26. The two rival parties have amicably settled the disputes
between themselves and buried the hatchet. Not only this, they say
that since they are neighbours, they want to live like good neighbours
and that was the reason for restoring friendly ties. In such a
scenario, should the court give its imprimatur to such a settlement.
The answer depends on various incidental aspects which need serious
discourse.
The Legislators has categorically recognized that those offences which
are covered by the provisions of section 320 of the Code are
concededly those not only do not fall within the category of heinous
crime but also which are personal between the parties. Therefore, this
provision recognizes whereas there is a compromise between the parties
the Court is to act at the said compromise and quash the proceedings.
However, even in respect of such offences not covered within the four
corners of Section 320 of the Code, High Court is given power under
Section 482 of the Code to accept the compromise between the parties
and quash the proceedings. The guiding factor is as to whether the
ends of justice would justify such exercise of power, both the
ultimate consequences may be acquittal or dismissal of indictment.
This is so recognized in various judgments taken note of above.
27. In the case of Dimpey Gujral (supra), observations of
this Court to the effect that offences involved in that case were not
offences against the society. It included charge under Section 307 IPC
as well. However, apart from stating so, there is no detained
discussion on this aspect. Moreover, it is the other factors which
prevailed with the Court to accept the settlement and compound he
offence, as noted above while discussing this case. On the other hand,
in Shambhu Kewat (supra), after referring to some other earlier
judgments, this Court opined that commission of offence under Section
307 IPC would be crime against the society at large, and not a crime
against an individual only. We find that in most of the cases, this
view is taken. Even on first principle, we find that an attempt to
take the life of another person has to be treated as a heinous crime
and against the society.
28. Having said so, we would hasten to add that though it is a
serious offence as the accused person(s) attempted to take the life of
another person/victim, at the same time the court cannot be oblivious
to hard realities that many times whenever there is a quarrel between
the parties leading to physical commotion and sustaining of injury by
either or both the parties, there is a tendency to give it a slant of
an offence under Section 307 IPC as well. Therefore, only because
FIR/Charge-sheet incorporates the provision of Section 307 IPC would
not, by itself, be a ground to reject the petition under section 482
of the Code and refuse to accept the settlement between the parties.
We are, therefore, of the opinion that while taking a call as to
whether compromise in such cases should be effected or not, the High
Court should go by the nature of injury sustained, the portion of the
bodies where the injuries were inflicted (namely whether injuries are
caused at the vital/delicate parts of the body) and the nature of
weapons used etc. On that basis, if it is found that there is a
strong possibility of proving the charge under Section 307 IPC, once
the evidence to that effect is led and injuries proved, the Court
should not accept settlement between the parties. On the other hand,
on the basis of prima facie assessment of the aforesaid circumstances,
if the High Court forms an opinion that provisions of Section 307 IPC
were unnecessary included in the charge sheet, the Court can accept
the plea of compounding of the offence based on settlement between the
parties.
29. At this juncture, we would like also to add that the timing of
settlement would also play a crucial role. If the settlement is
arrived at immediately after the alleged commission of offence when
the matter is still under investigation, the High Court may be
somewhat liberal in accepting the settlement and quashing the
proceedings/investigation. Of course, it would be after looking into
the attendant circumstances as narrated in the previous para.
Likewise, when challan is submitted but the charge has not been
framed, the High Court may exercise its discretionary jurisdiction.
However, at this stage, as mentioned above, since the report of the
I.O. under Section 173,Cr.P.C. is also placed before the Court it
would become the bounding duty of the Court to go into the said report
and the evidence collected, particularly the medical evidence relating
to injury etc. sustained by the victim. This aspect, however, would
be examined along with another important consideration, namely, in
view of settlement between the parties, whether it would be unfair or
contrary to interest of justice to continue with the criminal
proceedings and whether possibility of conviction is remote and bleak.
If the Court finds the answer to this question in affirmative, then
also such a case would be a fit case for the High Court to give its
stamp of approval to the compromise arrived at between the parties,
inasmuch as in such cases no useful purpose would be served in
carrying out the criminal proceedings which in all likelihood would
end in acquittal, in any case.
30. We have found that in certain cases, the High Courts have
accepted the compromise between the parties when the matter in appeal
was pending before the High Court against the conviction recorded by
the trial court. Obviously, such cases are those where the accused
persons have been found guilty by the trial court, which means the
serious charge of Section 307 IPC has been proved beyond reasonable
doubt at the level of the trial court. There would not be any
question of accepting compromise and acquitting the accused persons
simply because the private parties have buried the hatchet.
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.
32. After having clarified the legal position in the manner
aforesaid, we proceed to discuss the case at hand.
33. In the present case, FIR No.121 dated 14.7.2010 was registered
under Section 307/324/323/34 IPC. Investigation was completed,
whereafter challan was presented in the court against the petitioner
herein. Charges have also been framed; the case is at the stage of
recording of evidence. At this juncture, parties entered into
compromise on the basis of which petition under Section 482 of the
Code was filed by the petitioners namely the accused persons for
quashing of the criminal proceedings under the said FIR. As per the
copy of the settlement which was annexed along with the petition, the
compromise took place between the parties on 12.7.2013 when
respectable members of the Gram Panchayat held a meeting under the
Chairmanship of Sarpanch. It is stated that on the intervention of
the said persons/Panchayat, both the parties were agreed for
compromise and have also decided to live with peace in future with
each other. It was argued that since the parties have decided to keep
harmony between the parties so that in future they are able to live
with peace and love and they are the residents of the same village,
the High Court should have accepted the said compromise and quash the
proceedings.
34. We find from the impugned order that the sole reason which
weighed with the High Court in refusing to accept the settlement
between the parties was the nature of injuries. If we go by that
factor alone, normally we would tend to agree with the High Court’s
approach. However, as pointed out hereinafter, some other attendant
and inseparable circumstances also need to be kept in mind which
compel us to take a different view.
35. We have gone through the FIR as well which was recorded on the
basis of statement of the complainant/victim. It gives an indication
that the complainant was attacked allegedly by the accused persons
because of some previous dispute between the parties, though nature of
dispute etc. is not stated in detail. However, a very pertinent
statement appears on record viz., “respectable persons have been
trying for a compromise up till now, which could not be finalized”.
This becomes an important aspect. It appears that there have been
some disputes which led to the aforesaid purported attack by the
accused on the complainant. In this context when we find that the
elders of the village, including Sarpanch, intervened in the matter
and the parties have not only buried their hatchet but have decided to
live peacefully in future, this becomes an important consideration.
The evidence is yet to be led in the Court. It has not even started.
In view of compromise between parties, there is a minimal chance of
the witnesses coming forward in support of the prosecution case. Even
though nature of injuries can still be established by producing the
doctor as witness who conducted medical examination, it may become
difficult to prove as to who caused these injuries. The chances of
conviction, therefore, appear to be remote. It would, therefore, be
unnecessary to drag these proceedings. We, taking all these factors
into consideration cumulatively, are of the opinion that the
compromise between the parties be accepted and the criminal
proceedings arising out of FIR No.121 dated 14.7.2010 registered with
Police Station LOPOKE, District Amritsar Rural be quashed. We order
accordingly.
36. Appeal is allowed. No costs.
………………………………J.
(K.S.Radhakrishnan)
………………………………J.
(A.K.Sikri)
New Delhi,