Anish Khan & ANR v. State ( Govt Of NCT Of Delhi ) & ANR

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IN THE HIGH COURT OF DELHI AT NEW DELHI

+ W.P.(CRL) 2801/2015 ANISH KHAN & ANR ..... Petitioners Through:

M.L. Yadav, Adv.

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

Mr.Sanjay Lao, ASC with Mr.Siddharth Sindhu, Adv.

ASI Ramesh Kumar, P.S. Chandni Mahal Mr. Lokesh Chandra, Adv. for R-2

CORAM:

HON'BLE MR. JUSTICE ASHUTOSH KUMAR

O R D E R

% 04.12.2015 Crl. M.A.17663/2015 Exemption granted subject to all just exceptions. Application stands disposed of.

W.P.(CRL) 2801/2015 1.

The petitioners who are related to each other have preferred the present petition seeking quashing of FIR No. 232/2014 (PS. Chandni Mahal) instituted for offence under Sections 323/324/326/341/506/34 of the IPC. The petition is structured on the strength of a settlement which has been arrived at between the petitioners and complainant/respondent No. 2. The petitioners and the respondent No. 2 are neighbours residing in the same locality.

2.

Mohd. Aman (respondent No. 2) has alleged that on 29.08.2014 at about 12:30 AM, petitioner No. 1 along with his brother came at a milk booth where respondent No. 2 was standing and they abused and assaulted him. When respondent No. 2 raised alarm, both the petitioners ran away from the spot. Respondent No. 2 was injured in the occurrence and had to be hospitalized.

FIR No. 232/2014, (PS. Chandni Mahal) for the offences under Sections 323/324/326/341/506/34 of the IPC, was lodged against the petitioners.

3.

With the intervention of well-wishers and local people, the matter has now been settled. The settlement deed which is Annexure P2 to the petition has been executed which interalia recites that the petitioner and respondent no.2 shall live peacefully as good neighbours. 4.

Learned counsel for the State has, however, submitted that the injuries suffered by respondent no.2 are serious and that on earlier occasions also, the petitioners had assaulted respondent no.2. However, the case which was filed on the earlier occasion was also quashed because of a compromise having been arrived at. It has, therefore, been submitted by the State that the petitioners are in the habit of fighting with their neighbour. 5.

The parties are present in the Court.

6.

The investigation in the matter is still continuing. 7.

Considering the fact that the settlement has been arrived at between the parties, this Court is inclined to quash the FIR, but only subject to the condition that the petitioners pay an amount of Rs. 15,000/- as compensation to the Delhi High Court Legal Services Committee. The amount shall be deposited with the Secretary, Delhi High Court Legal Services Committee within a period of two weeks from today, for which a receipt would be

granted. The receipt shall be deposited with the IO of the case. 8.

Though, in Gian Singh vs. State of Punjab & Another, (2012) 10 SCC 303, the Supreme Court has held that cases which are not compoundable under Section 320 of the Cr.P.C. could also be quashed, when continuation of any criminal proceeding would be an exercise in futility and where justice demands that the dispute between the parties should be put to an end and peace is restored, but for securing the ends of justice, it would be necessary that the petitioners are directed to pay the aforesaid amount as compensation.

9.

The Supreme Court has observed in Gian Singh (Supra): "58............................ 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 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.

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." [Refer to B.S. Joshi, (2003) 4 SCC 675; Nikhil Merchant, (2008) 9 SCC 677 and Manoj Sharma, (2008) 16 SCC 1.] 10.

In Narinder Singh & Ors. vs. State of Punjab & Anr., (2014) 6 SCC 466, the pertinent observations of the Apex Court are as under:-

29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings: 29.1 Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves.

However, this power is to be exercised sparingly and with caution. 29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure: (i) ends of justice, or (ii) to prevent abuse of the process of any court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives. 29.3. Such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc.

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.

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."

11.

Since the petitioners and respondent no.2 are neighbours and respondent no.2 has decided to condone the petitioners for a peaceful

neighbourhood, no fruitful purpose would be served in keeping the investigation of this case pending. As stated earlier, taking into account the fact that such occurrence had taken place earlier also, the petitioners have been asked to pay an amount of Rs.15,000/- to the DHCLSC so that it acts as a check and warning for the petitioners for not committing such acts of vandalism in future.

12.

The subject FIR (FIR No. 232/2014, PS Chandni Mahal) and the emanating proceedings thereof, for the aforestated reasons, and subject to the conditions referred to above are quashed. 13.

The petition is disposed of in terms of the aforesaid. ASHUTOSH KUMAR, J DECEMBER 04, 2015 ns