Jagdish Basumatary and 2 Ors v. The State of Ap

ORDER Date : 13.12.2024

Heard Mr. O. Modi, learned counsel for the petitioners. Also heard Mr. G. Tado, learned Addl. Public Prosecutor appearing for the State respondents.

¶2The petitioners, by instituting the present proceeding, have prayed for quashing of an FIR dated 04.03.2012, lodged by the petitioner no. 1 against the petitioner no. 3 herein, leading to registration of Itanagar P.S. Case No. 46/2012, under Sections 341/392 of the IPC along with the Charge-sheet being Charge-sheet No. 299/14, dated 29.08.2014, so laid by the Investigating Officer in G. R. Case No. 82/12 pending before the Court of the learned Chief Judicial Magistrate, Yupia, Papumpare.

¶3The petitioner no. 1 herein, had lodged an FIR on 04.03.2012, interalia, alleging therein that his wife (the petitioner no. 2, herein) along with 3(three) others while proceeding from Itanagar, were looted and injured by 04 persons and one of the person was so identified as one Dagang Tada (petitioner no. 3 herein). It is further alleged in the FIR that the vehicle on being stopped, the petitioner no. 2 was attacked causing injury to her left hand with a Dao and she was also threatened with dire consequence. It was alleged that the gang had looted an amount of Rs. 70,000/- (Rupees Seventy Thousand only) from the petitioner no. 2 in addition to snatching 03 nos. of mobile phones from the persons accompanying the petitioner no. 2 in the said vehicle. On receipt of the said FIR, Itanagar P. S. Case No. 46/2012, under Sections 341/392 of the IPC came to be so registered. On conclusion of the investigation in the matter, the Investigating Officer laid Charge-sheet being Charge-sheet No. 299/14, dated 29.08.2014, against the petitioner no. 3, herein. In the said Charge-sheet, it has been reflected that the Page No.# 3/10 petitioner no. 3, herein, had submitted a 'Mutual Understanding' note dated

10.03.2012, entered into by him with the petitioner no. 1 herein. The copy of the said 'Mutual Understanding' note forms part of the said Charge-sheet.

¶4The materials placed on record in the present criminal petition also contains an order dated 23.04.2012, passed by the Judicial Magistrate First Class, Yupia, wherein it has been recorded that the petitioner no. 1 and petitioner no. 2 had submitted before the Trial Court that the matter was settled and the informant does not wish to pursue the matter further. In view of the said statement so made by the informant i.e. the petitioner no. 1, herein, the further recording of evidence of the Prosecution Witnesses was halted as it was concluded that recording of the same would be an exercise in vain. In the said order, it was further reflected that the accused person i.e. the petitioner no. 3, herein, had expressed his willingness to bring the case to an end by filing an application before this Court for quashing of the FIR.

¶5Mr. O. Modi, learned counsel for the respondent, has submitted that the compromise as entered into by and between the petitioners in the matter, is duly reflected in the Charge-sheet and further the reason for the respondent no. 3 to have done the act so alleged against him, was also highlighted. Mr. O. Modi, learned counsel has submitted that on a discussion between the petitioners in the matter and the differences arising being resolved, the petitioner no. 1 and the petitioner no. 3 had executed a 'Mutual Understanding' note, which was also contended to have been supported by the petitioner no. 2. In the above premises, the present criminal petition instituted by the informant, victim and the accused i.e. the petitioner nos. 1, 2 & 3 respectively, in Itanagar P. S. Case No. 46/2012, under Sections 341/392 of the IPC would require to be allowed by interfering with the FIR and the consequential proceeding so instituted thereon.

¶6Mr. G. Tado, learned Additional Public Prosecutor, has not objected to the Page No.# 4/10 prayer made on behalf of the petitioners, but, has submitted that the case on investigation having ended in a Charge-Sheet, it is required that the trial in the matter be taken to its logical conclusion.

¶7I have considered the submission advanced by the parties and the materials made available on record.

¶8At the outset, it is to be noted that the provisions of Section 528 of the BNSS, 2023 is pari-metria to the provisions of Section 482 of the Cr.P.C., 1973. The issue arising in the present proceeding is as to whether this Court has the power under Section 528 of the BNSS, 2023; to quash criminal proceeding involving non compoundable offences in view of the compromise arrived at between the parties. The said issue, more particularly, with regard to matrimonial dispute/offences was considered by the Hon'ble Supreme Court in the case of B. S. Joshi & Ors. Vs. State of Haryana & Anr., reported in [(2003) 4 SCC 675] and the Hon'ble Apex Court categorically held that the High court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint; and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code. 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 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. Having held so, the Hon'ble Apex Court observed and concluded as follows:- "12. The special features in such matrimonial matters are evident. It becomes the duty of the Court to encourage genuine settlements of matrimonial disputes.

¶13The observations made by this Court, though in a slightly different context, in G.V. Rao v. L.H.V. Prasad & Ors. [(2000) 3 SCC 693] are very apt Page No.# 5/10 for determining the approach required to be kept in view in matrimonial dispute by the courts, it was said that there has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counseled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their "cases" in different courts.

¶14There is no doubt that the object of introducing Chapter XX-A containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper-technical view would be counter-productive and would act against interests of women and against the object for which this provision was added. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XXA of Indian Penal Code.

¶15In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code."

¶9The decision rendered by the Hon'ble Apex Court in the case of B. S. Joshi Page No.# 6/10 (supra) came to be doubted when the Special Leave Petition in Gian Singh V. State of Punjab came up for hearing before a two Judges Bench of the Hon'ble Apex Court 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 Vs. State of Punjab & Anr. reported in (2012) 10 SCC 303 has held that the case of B. S. Joshi (supra) was correctly decided by concluding 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 criminal complaint or F.I.R if it is satisfied that on the face of such settlement, there is Page No.# 7/10 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. 59………………………………………………………………………… 60…………………………………………………………………………

¶61The position that emerges from the above discussion can be summarized 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 predominatingly 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 Page No.# 8/10 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 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."

¶10It 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 359 BNSS, 2023. Any such attempt by the court would amount to alteration, addition and modification of Section 359 of BNSS, 2023, which is the exclusive domain of legislature. Nevertheless, the limited jurisdiction to compound an offence within the framework of Section 359 BNSS, 2023 is not an embargo against invoking inherent powers by the High Court vested in it under Section 528 of BNSS, 2023 for quashing of proceedings or FIR or complaint in an appropriate case. This Court, keeping in view of the particular facts and circumstances of the case and for justifiable reasons can invoke the provisions of Section 528 of BNSS, 2023 in aid to prevent abuse of the process of any Court and/or to secure the ends of justice.

¶11This Court, therefore, having regard to the nature of offence and the fact that the parties have amicably settled their dispute and the victim having willingly Page No.# 9/10 consented to the nullification of criminal proceedings, can quash such proceedings in exercise of its power under Section 528 of the BNSS, 2023, even if the offences are non-compoundable.

¶12This 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 it 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.

¶13Having noticed the powers available to this Court, under the provisions of Section 528 of BNSS, 2023 and 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 528 of the BNSS, 2023 and quash the criminal proceedings existing against the petitioner no. 2 for the following reasons:-

(1) Firstly, in the light of the disclosures made in the charge-sheet as well as in the present criminal petition, the incident leading to the institution of the FIR dated

04.03.2012 can be categorized as purely personal or having over-tones of criminal proceedings of private nature between the petitioners;

(2) Secondly, it having been jointly projected by the petitioners that the incident which had occasioned on 04.03.2012 and forming the basis of the FIR lodged by the petitioner no. 1 against the petitioner no. 3, had so occasioned on a mis-understanding arising in the matter and the injuries so caused to the petitioner no. 2 are minor and simple in nature. The parties having resolved to bury their differences in the matter, and the said aspect of the matter also being projected before the learned Trial Court and recorded by the Trial Court in its order dated Page No.# 10/10

23.04.2024, no fruitful purpose would be served in continuing the criminal proceedings instituted against the petitioner no. 3. Further the incident involved does not appear to exhibit mental depravity of the petitioner No. 3 or the commission of the said offence cannot be said to be of such a serious nature that quashing of which would override public interest;

(3) Lastly, the cause of administration of Criminal justice system would remain unaffected on acceptance of the amicable settlement between the parties.

¶14In view of the conclusion reached hereinabove, this Court in exercise of power under Section 528 of the BNSS, 2023 quash the FIR dated 04.03.2012. Accordingly, Itanagar P.S. Case No. 46/2012, so registered against the petitioner no. 3, under Sections 341/392 of the IPC along with the Charge-sheet No. 299/14; dated 29.08.2014, so laid by the Investigating Officer in G. R. Case No. 82/2012 stand quashed. Consequently, the proceedings in G. R. Case No. 82/2012 pending before the Court of the learned Chief Judicial Magistrate, Yupia, Papumpare, also stands quashed.

¶15With the above observations, this Criminal Petition stands disposed of.

JUDGE Comparing Assistant

Page No.# 1/10 GAHC040009212024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : Crl.Petn./107/2024 Jagdish Basumatary and 2 Ors Son of Late Durga Basumatary, resident of Rajghar Charali, Hollongi, PO and PS Gohpur, Sonitpur District, Assam 2: Smti Nomita Basumatary Age: Occupation : Wife of Shri Jagdish Basumatary resident of Rajghar Charali Hollongi PO and PS Gohpur Sonitpur District Assam 3: Dagang Mada @ Dagang Tada Age: Occupation : Son of Late Dagang Tanyang resident of Jha Village PO and PS Tali Kra Daadi District Arunachal Prades VERSUS The State of AP represented by the PP of AP Advocate for the Petitioner : Orin Modi, Noni Nobeng,Pura Khongkhung Advocate for the Respondent : P P of AP, Page No.# 2/10 BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR