Tamchi Mongku and 3 Ors v. The State of Ap

JUDGMENT & ORDER (Oral)

Date : 06.03.2024

Heard Mr. R. L. Thungon, learned counsel for the petitioners. Also heard Mr. T. Ete, learned Additional Public Prosecutor for the State.

¶2The petitioners herein, who are the accused, informant and victims respectively, in connection with Papu Hill P.S. Case No. 05/2021, registered under Sections 279/338 of the IPC have instituted the present proceedings for quashing of the FIR dated 16.09.2021 leading to the registration of the said Papu Hill P.S. Case No. 05/2021 registered under Sections 279/338 of the IPC along with the Charge-sheet being Charge-sheet No. 07/2021, under Sections 279/338 of the IPC submitted in G.R. Case No. 857/2021 presently pending before the learned Chief Judicial Magistrate, Yupia.

¶3The petitioner no. 1 had lodged a First Information Report (FIR) on

16.09.2021 to the effect that the petitioner no. 1 (accused), who was riding on a bike had hit his vehicle and as a result of which four persons therein were seriously injured and were admitted at Tomo Riba Institute of Health & Medical Science (TRIHMS), Naharlagun.

¶4On receipt of the said FIR, the police registered Papu Hill P.S. Case No. 05/2021 registered under Sections 279/338 of the IPC. On conclusion of the Page No.# 3/9 investigations in the matter, the police proceeded to submit the Charge-sheet being Charge-sheet No. 07/2021, under Sections 279/338 of the IPC before the Court of the learned Chief Judicial Magistrate, Yupia.

¶5The learned Trial Court thereafter, vide order dated 30.01.2023 framed charges against the petitioner no. 1, (accused), under Section 279 and Section 337 of the IPC and the said case is presently under trial.

¶6As revealed from the materials available on record after the accident caused by the petitioner no. 1 on account of his rash and negligent driving, the petitioners no. 3 & 4 were admitted to the said hospital and it is seen that the injuries as suffered by them were of simple nature caused by blunt object. During the pendency of the said proceedings, the accused as well as the informant and the victims had come together and held discussions in the matter and on concluding that the collusion as occasioning was an accident and the victims have sustained simple injuries, proceeded to resolve the matter by agreeing not to pursue the criminal proceedings initiated by the petitioner no. 2 against the petitioner no. 1. The settlement having been reached, the same was reduced in writing in the form of a Deed of Amicable Settlement executed on 31.01.2024 between the petitioners.

¶7In terms of the said settlement as arrived at between the parties, it is stated that the petitioners no. 2, 3 & 4 have no grievance against the petitioner no. 1 and the father of the petitioner no. 1 while providing medical Page No.# 4/9 expenses for the victims sustaining injuries in the accident had also compensated the petitioner no. 2 by providing a brand new Auto-Rickshaw.

¶8The petitioners in the said Deed of Amicable Settlement has categorically stated that they would not like to pursue the proceedings as pending against the petitioner no. 1 in G.R. Case No. 857/2021 before the Court of learned Chief Judicial Magistrate, Yupia.

¶9The petitioner no. 1 being charged for sections which are non-compoundable in nature, the present proceedings have been initiated, jointly, praying for quashing of the criminal proceedings pending against the petitioner no. 1.

¶10The issue arising in the present proceedings is as to whether this Court has the power, under Section 482 of the Cr.P.C. to quash criminal proceedings involving non-compoundable offences in view of the compromise arrived at between parties. The said issue, was considered by the Hon'ble Supreme Court in the case of B. S. Joshi V. State of Haryana & Another reported in (2003) 4 SCC 675 and the Hon'ble Apex Court categorically held that the exercise of jurisdiction under Section 482 of the Code could not be inflexible or could there be lying a rigid formula to be followed by the Courts. Exercise of such power would depend upon the facts and circumstances of each case, but with the sole purpose to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It was Page No.# 5/9 further held that it is well settled that these powers have no limit, of course, where there is more power; it becomes necessary to exercise utmost care and caution while exercising such powers.

¶11The decisions rendered by the Hon'ble Apex Court in the case of B. S. Joshi (supra) came to be doubted when the Special Leave Petition in Gian Singh V. State of Punjab came up for hearing before a two bench Judge and accordingly the matter was referred to a larger bench. The larger bench of the Hon'ble Supreme Court in its decision in the case of Gian Singh V. State of Punjab and Anr., Reported in (2012) 10 SCC 303 has held that the case of B. S. Joshi (supra) was correctly decided and held as follows:- "58. Where High Court quashes a criminal proceeding having regard to the fact that dispute between the offender and victim has been settled although 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 wrong doing that seriously endangers and threatens well-being of 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 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 Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between offender and 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. or the family dispute, where the wrong is basically to victim and the offender and 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 Page No.# 6/9 criminal complaint or F.I.R if it is satisfied that on the face of such settlement, there is hardly any likelihood of 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.

¶61The 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 F.I.R may be exercised where the offender and 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 serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like 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 pre-dominatingly civil flavour stand on 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, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put 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 wrongdoer and whether to Page No.# 7/9 secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."

¶12Having considered the law laid down by the Hon'ble Apex Court in the context of the power of this Court to quash proceedings involving non-compoundable Sections in exercise of its power under Section 482 Cr.P.C., the issue involved in the present proceedings is hereby considered.

¶13It is a settled law that the offences which are non-compoundable cannot be compounded by a criminal Court in purported exercise of its powers conferred under Section 320 Cr.P.C. Any such attempt by the court would amount to alteration, addition and modification of Section 320 Cr.P.C., which is the exclusive domain of legislature. Nevertheless, the limited jurisdiction to compound an offence within the framework of Section 320 Cr.P.C. is not an embargo against invoking inherent powers by the High Court vested in it under Section 482 Cr.P.C. This Court, keeping in view of the particular facts and circumstances of the case and for justifiable reasons can invoke the provisions of Section 482 Cr.P.C. in aid to prevent abuse of the process of any Court and/or to secure the ends of justice.

¶14This Court, therefore, having regard to the nature of offence and the fact that the parties have amicably settled their dispute and the victim has willingly consented to the nullification of criminal proceedings, can quash such proceedings in exercise of its power under Section 482 Cr.P.C., even if the Page No.# 8/9 offences are non-compoundable.

¶15This Court, can indubitably evaluate the consequential effects of the offence beyond the body of an individual and thereafter adopt a pragmatic approach, to ensure that the felony, even if goes unpunished, does not tinker with or paralyze the very object of the administration of criminal justice system. Criminal proceedings involving non-heinous offences or where the offences are pre-dominantly of a private nature can be annulled irrespective of the stage the criminal proceedings are at.

¶16Having noticed the powers available to this Court, under the provisions of Section 482 of the Code, the weighing upon the peculiar facts and circumstances involved in the present proceedings, this Court is inclined to invoke the inherent powers of this Court, under Section 482 Cr.P.C., and quash the criminal proceedings existing against the petitioner no. 2 for the following reasons:-

(1) Firstly, the collision as occasioning between the bike of the petitioner no. 1 and Auto-rickshaw of the petitioner no. 2, having now been projected by the petitioners to be the result of an accident and it is also been projected that the victims have only suffered simple injuries, the factum of the accident occasioning due to rash and negligent driving of the petitioner no. 1 would be improbable.

(2) Secondly, the accident occasioning in the matter only involving the petitioners herein and the matter having been resolved amicably, it is to be held that the conviction of the petitioner no. 1 in the criminal proceedings as pending against him would be an impossibility. Accordingly, the incident as now being projected, in the event the criminal proceedings as pending against the petitioner no. 1 is quashed, Page No.# 9/9 would not override public interest.

(3) Thirdly, the parties, having amicably resolved the matter and having reduced such resolution in the form of a Deed of Amicable Settlement executed on

31.01.2024, the possibility of conviction of the petitioner no. 1 in the matter is remote and bleak. Accordingly, the continuation of the criminal proceedings would cause great prejudice to the accused petitioner no. 1 despite full and complete settlement arrived at in the matter with the informant and the victims.

¶17In view of the conclusions reached herein above and having considered the offence involved in the matter and the reconciliation arrived at between the petitioners, this Court, in exercise of the powers conferred under Section 482 of the Cr.P.C. quash the criminal proceedings pending before the Court of learned Chief Judicial Magistrate, Capital Complex, Yupia against the petitioner no. 1, consequently, the G.R. Case No. 857/2021, under Sections 279/338 of the IPC (arising out of Papu Hill P.S. Case no. 05/2021) along with the FIR dated 16.09.2021 and the charge-sheet being Charge-sheet no. 07/2021, stands quashed.

¶18The criminal revision petition is accordingly allowed in terms of the above. JUDGE Comparing Assistant

Page No.# 1/9 GAHC040002682024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : Crl.Petn./27/2024 Tamchi Mongku and 3 Ors Son of Shri Tamchi Taming, near DK Convention, Itanagar, Papumpare District, Arunachal Pradesh 2: Tatum Kena Age: Occupation : 3: Rupa Boruah Age: Occupation : 4: Somi Basumatary Age: Occupation VERSUS The State of AP represented by the PP of AP Advocate for the Petitioner : Rinchin Ledo Thungon Advocate for the Respondent : P P of AP Page No.# 2/9 BEFORE HONBLE MR. JUSTICE N. UNNI KRISHNAN NAIR