Heena Lamba v. The State ( Govt Of NCT Of Delhi) & ANR

$~7 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(CRL) 2202/2018 HEENA LAMBA ..... Petitioner Through:

Mr. Sukhbeer Kaur Bajwa and Mr.

Vivek Aggarwal, Advocates.

Versus

THE STATE ( GOVT OF NCT OF DELHI) & ANR ..... Respondents Through:

Mr. Rahul Mehra, Standing Counsel for State alongwith Mr. Jamal Akhtar, Advocate with ASI Jagbir Singh, PSCrime Branch. Mr.

Paramveer Dalal, Advocate alongwith complainant.

CORAM:

HON'BLE MR. JUSTICE NAJMI WAZIRI

O R D E R

% 03.08.2018 1.

The FIR filed by the complainant, in substance, was apropos Rs. 3.25 lacs. The said amount has been repaid to the complainant. The learned counsel for the petitioner submits that the Investigating Officer had made a statement before this Court which while granting bail to the petitioner, in Bail APPLN. 1734/2017 had recorded submission on behalf of the State that: "It has been submitted on behalf of the State on instructions from the Investigating Officer that the applicant has made payments and settled the matter with all 16 victims in FIR No. 85 dated 09.06.2015, PS Crime Branch".

2.

The constituted attorney of the complainant is present in the Court. He does not have a counsel, accordingly Mr. Paramveer Daval, Advocate,

present in the Court is appointed as his counsel for the day. He states upon instructions that the complainant does not wish to pursue his complaint against the petitioner any further.

2.

In the aforesaid circumstances and keeping in mind the decision of the Supreme Court in Gian Singh Vs. State of Punjab and Another (2012) 10 SCC 303, holding 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." 3.

The amicable resolution of cases like the present one is an abiding objective. The dictum of Gian Singh (supra) has been affirmed by the Apex Court in Narinder Singh & Ors. Vs. State of Punjab & Anr. 2014 6 SCC 466 while observing:

"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.

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 chargesheet 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." 4.

The Court is of the view that since the complainant himself does not wish to pursue the complaint any further against the petitioner and in view of the fact that 16 persons have confirmed through e-mails or otherwise that their respective monies have been received by them, nothing further survives in the case; the FIR has been denuded of its substratum and any further proceedings emanating therefrom would be an exercise in futility, therefore, in the interest of justice, the FIR should be quashed. 5.

In the circumstances, FIR No. 85/2015 under sections 406/420/120-B IPC registered at Police Station Crime Branch and all proceedings

emanating therefrom are hereby quashed.

6.

At this stage, the learned counsel for the petitioner state that because of the unnecessary pressure caused by her upon the administrative machinery engaged in the maintenance of law and order, as her expression of remorse and contrition, she is ready and willing to undertake some social work. Accordingly, the petitioner is directed to report before the Deputy Conservator of Forests (North), GNCTD, on 17th August, 2018 at 11.00 am, who shall assign her duties of planting 300 deciduous indigenous plants/trees in Compensatory Afforestation Schemes or other Schemes and/or for maintenance of such forests, for a period of one week. Since the petitioner is a lady, the trees need not be planted by her personally, unless she wants to do so herself. She is otherwise granted the liberty to have them planted under her supervision. An affidavit of compliance alongwith photographs of the plantation completed by the petitioner, shall be filed on or before 10.09.2018, both by the petitioner as well as by the Deputy Conservator of Forests (North).

7.

The petition is allowed in the above terms.

8.

Should the Investigating Officer be informed by any of the 16 victims, that the monies have not been actually received by them, it will be open to initiate motion for revival of the FIR against the petitioner. 9.

A copy of this order be given dasti to the learned counsel appearing on behalf of the parties and a copy will also be sent to the office of Deputy Conservator of Forests (North).

NAJMI WAZIRI, J AUGUST 03, 2018 RW