Sh. Shaukat Ali & ORS. v. State & ANR.

$~35 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(CRL) 3393/2018 SH. SHAUKAT ALI & ORS.

..... Petitioners Through:

Mr. Dalip Kumar Santoshi, Advocate with Petitioners in person.

Versus

STATE & ANR.

..... Respondents Through:

Mr. Jamal Akhtar, Advocate with SI Rajender Singh Dhama, P.S. Gokul Puri.

Mr. Rahul Kumar Singh, Advocate for Respondent No.2 with Respondent No. 2 in person.

CORAM:

HON'BLE MR. JUSTICE NAJMI WAZIRI

O R D E R

% 02.11.2018 Crl. M.A. No. 35692/2018 (for exemption) Allowed, subject to all just exceptions.

The application stands disposed off.

W.P.(CRL) 3393/2018 1.

By way of this petition filed under section 482 of the Code of Criminal Procedure, 1973, petitioners seek quashing of FIR No. 0482/2014 registered at Police Station Gokulpuri, Delhi, for the offences punishable under sections 420/34 IPC and the consequential proceedings emanating therefrom against the petitioners.

2.

The learned counsel appearing on behalf of the petitioners submits that the aforesaid case was registered on the complaint of respondent No.2,

namely, Mr. Afsar Ali. With the intervention of the well-wishers, relatives and common friends of the parties, the matter has been settled between them vide Settlement Deed dated 17.10.2018, which is annexed as Annexure-P-2 to this petition.

3.

Respondent No.2 has been duly identified by the Investigating Officer as well as by his counsel named above. The latter states upon instructions that since the lis has been amicably settled, the respondent No. 2 does not want to pursue the FIR any further and hence, the proceedings arising out of the FIR in question may be brought to an end. 4.

The learned Additional Public Prosecutor appearing on behalf of the State submits that since the respondent No.2 does not wish to pursue the case against the petitioners any further, no purpose would be served if the petitioners are directed to face trial. Therefore, the State has no objection, if the present petition is allowed.

5.

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." 6.

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.

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.

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." 7.

The parties are present in the Court and have been identified by their respective counsel. The parties have re-iterated the terms of the aforesaid settlement and undertake to remain bound by the same. Since the complainant himself does not wish to pursue against the petitioners, the substratum of the complaint/FIR dissipates and any further proceeding apropos the same FIR would be an exercise in futility. It would therefore be in the interest of justice that the FIR be quashed. Accordingly, FIR No. 0482/2014 registered at Police Station Gokulpuri, Delhi, for the offences punishable under sections 420/34 IPC and all the proceedings arising therefrom are quashed.

8.

At this stage, the learned counsel for the petitioners submits that as an expression of the contrition of the petitioners for them having caused the unnecessary burden upon the administrative machinery engaged in the maintenance of law and order, the petitioners shall do some social work as may be assigned by the Court. Accordingly, the petitioner shall report before the Sub-Divisional Magistrate (SDM), Shahdara, Delhi, on 26.11.2018 at 11.00 am, who shall assign them duties to plant 25 trees each. The plants/trees shall be of deciduous indigenous variety with a nursery age of three and a half years, and a height of at least eight feet. Depending upon the soil type and topography, the SDM may consider the following types of trees for plantation:- (i) Gular (Cluster Fig) (ii) Kadamba (Burflower Tree) (iii) Pilkhan (White Fig) (iv) Jaamun (Black Plum) (v) Bargad (Banyan Tree) (vi) Mango

(vii) Amaltas (Golden Shower) (viii) Mahua (Butter Tree) [Indian Laburnum] (ix) Putranjiva (x) Badh (xi) Sagwan (Teak Wood) (xii) Safed Siris (Albizia Procera) (xiii) Kala Siris (xiv) Anjeer (xv) Kathal- Jackfruit (xvi) Palash (xvii) Arni (xviii) Bistendu (xix) Rohida (xx) Medshingi 9.

An affidavit of compliance shall be filed by the petitioners as well as SDM, Shahdara, Delhion or before 22.12.2018, failing which the Registry shall list the case for directions. Satellite pictures prior to and after the afore directed plantation shall be obtained by the SDM from Geospatial Delhi Ltd. and shall be filed alongwith his affidavit. Similar monthly updates shall be obtained by him to monitor and ensure the upkeep of the said plantation. A Report of the same shall be filed six months after the plantation alongwith fresh photographs to show the health/status of the plants. In case of default, the Registry shall list the case for directions. 10.

The petition is allowed in the above terms.

11.

A copy of this order be given dasti to the learned counsel for the parties under signature of the Court Master. Additionally, a copy be served upon the SDM concerned for due compliance.

NAJMI WAZIRI, J.

NOVEMBER 02, 2018 sb