Dileep Kashyap and 4 Others v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

Court No. - 27 Case :- APPLICATION U/S 482 No. - 2259 of 2024 Applicant :- Dileep Kashyap And 4 Others Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another Counsel for Applicant :- Anil Kumar Sharma Counsel for Opposite Party :- G.A.,Vivek Kumar Srivastava Hon'ble Subhash Vidyarthi,J.

¶1Heard Sri Anil Kumar Sharma, the learned counsel for the applicants, Sri Rishikesh Verma, the learned A.G.A for the State and Sri Vivek Kumar Srivastava, the learned counsel for the opposite party no. 2.

¶2The instant application has been filed under Section 482 Cr.P.C, the applicant has sought quashing of the charge sheet No. 07/2011 dated arising out of Case Crime No. 198/2011, under Sections 498-A, 304-B, I.P.C and ¾ of Dowry Prohibition Act, Police Station Thakurganj, District Lucknow, in S.T. NO. 761/2011 (State Vs. Dileep Kahsyap and others) which is pending before the court of Additional District Judge, Court No.7, Lucknow, on the ground that the parties have entered into a compromise.

¶3The aforesaid case arises out of F.I.R. no. 198 of 2011 lodged by the opposite party no.2 on 09.05.2011 against the applicants, stating that her daughter Preeti (Bobby) got married to applicant no.1 on

25.11.2007. All the accused persons used to harass her for demanding dowry. In the night of 06/07.05.2011, she received telephonic information from some unknown person that her daughter had been given poison by the accused persons.

¶4After investigation, a charge-sheet was submitted on 09.05.2011 against the applicants for commission of offences under section 498-A, 304-B and 3 /4 of Dowry Prohibition Act.

¶5During pendency of trial, seven prosecution witnesses were examined by the trial court and all of them supported the prosecution case and none of them turned hostile. Defense witnesses have also been examined by the trial court.

¶6At this stage, on 18.07.2023, The parties entered into a settlement wherein it is stated that the deceased had committed suicide by consuming poison and thereafter the parties have arrived at a settlement. It is also recorded in the compromise that son of the deceased lives with the complainant, therefore, he studies in Class-VIII but as the complainant has attained age of more than 75 years and she does not keep well and she is unable to take care of the deceased's son and, for this reason, she wants that no further proceedings should be continued against accused persons.

¶7Earlier the applicants had filed an application under section 482 Cr.P.C No. 12521 of 2023, which was disposed of by means of an order dated 17.01.2024 directing the parties to get the compromise verified by the trial court. The compromise has been verified by means of an order dated 20.01.2024 passed by the Additional District Judge, court No.7, Lucknow.

¶8It is recorded in the order dated 17.01.2024 passed by a coordinate bench of this court that keeping in view the special circumstances of the case this court can compound, the offences and record the compromise between the parties quashing the criminal proceedings. After this court had passed the order for verification of the compromise, the trial court recorded the statement of the compliment, who stated that she has entered into a compromise, she does not want any proceedings against the applicant.

¶9The Coordinate Bench had relied upon judgment and order dated

22.03.2022 passed by a Single Judge of the Andhra Pradesh, High Court in Criminal Petition No. 378 of 2022, whereby the Andhra Pradesh High Court had quashed proceedings of criminal case under section 304-B, read with 34 I.P.C on the ground that the parties had entered into a compromise. The Andhra Pradesh High Court had relied upon the decision of the Andhra Supreme Court in Gian Singh v. State of Punjab: (2012) 10 SCC 303. In Gian Singh (Supra), the allegation was of commission of offences under section 420 and 120-B IPC and the Hon'ble Supreme Court after referring to numerous proceedings of the point and had summarized the legal points as follows:- "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 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 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 flavour 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 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."

¶10The Andhra Pradesh High Court did not take into consideration this aspect of law laid down in Gian Singh (supra), while quashing criminal proceedings involving commission of offence under section 304-B IPC. Therefore, the decision of the Andhra Pradesh High Court does not taken into consideration the law laid down by the Hon'ble Supreme Court in its correct prospective and it is not a binding precedent.

¶11In Narinder Singh and others versus State of Punjab and another:

(2014) 6 SCC 466, the Hon'ble Supreme Court laid down the following principles, which would guide this court while exercising its power under section 482 Cr.P.C, while dealing with prayer for quashing of proceedings on the ground of compromise entered between the parties. "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/delicate 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 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 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."

¶12Again, in State of M.P. v. Laxmi Narayan, (2019) 5 SCC 688, the Hon'ble Supreme Court held that: - "15. Considering the law on the point and the other decisions of this Court on the point, referred to hereinabove, it is observed and held as under:

15.1. That the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves;

15.2. Such power is not to be exercised in those prosecutions which involved 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;

15.3. Similarly, such power is not to be exercised for the offences under the special statutes 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;

15.4. Offences under Section 307 IPC and the Arms Act, etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone, and therefore, the criminal proceedings for the offence under Section 307 IPC and/or the Arms Act, etc. which have a serious impact on the society cannot be quashed in exercise of powers under Section 482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves. 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 framing 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/delicate parts of the body, nature of weapons used, etc. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge-sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paras 29.6 and 29.7 of the decision of this Court in Narinder Singh2 should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove;

15.5. While exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offences, which are private in nature and do not have a serious impact on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise, etc."

¶13When we examine the facts of the present case, in the light of the law laid down by the aforesaid cases, it appears that the daughter of the opposite party no.2 is said to have been killed by the applicants in the year 2011, by administering poison. The F.I.R allegations were established during investigation and, therefore, a charge-sheet was submitted against all the accused persons.

¶14The prosecution has produced as many as seven witnesses, all of whom have supported the F.I.R allegations and none of them have been declared to be hostile. When the defense evidence is continuing, the parties entered into a settlement and the reason for entering into settlement disclosed in the compromise is that the complainant is taking care of the son of the deceased, she has attained an advance age of 75 years, she does not keep good health and she is unable to bear expenditure for upbringing of her grandson and she is facing difficulties in taking care of the son of the deceased and for these reasons, she does not want continuance of proceedings against the accused persons.

¶15The compromise entered by the deceased's mother for the reason that she is facing difficulties in looking after the deceased's son due to her poor physical and financial condition would not be a ground to quash the criminal proceedings against the persons accused of causing dowry death of the complainant's daughter. The offence under Section 304-B I.P.C. allegedly committed by the accused persons is punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and it falls within the category of the most heinous offences involving mental depravity, it not private in nature and it has a serious impact on society.

¶16In these circumstance, the proceedings of the criminal case cannot be quashed on the basis of compromise between the parties. Accordingly, the application is rejected. (Subhash Vidyarthi,J.) Order Date: 19.03.2024 Preeti. High Court of Judicature at Allahabad, Lucknow Bench