Ghulam Mohammad Khan v. Government of J and K and Ors. (Home Department)

O R D E R

29.12.2023

(ORAL)

¶1In the instant petition, petitioner has invoked the inherent power of this Court enshrined under Section 482 Cr.PC seeking quashment of FIR No. 89/2023 dated 05.08.2023 registered with Police Station Kangan for commission of offence under Sections 304-A IPC.

¶2According to counsel for the petitioner a compromise has been arrived at between the petitioner and respondents 4 to 8 herein outside the Court qua the death of the said Ubaid Ahmad and in the light of the said compromise, the continuation of the criminal case arising out of the impugned FIR which is, as such, sought to be quashed.

¶3Counsel for the petitioner thus, would pray for disposal of the instant petition upon quashment of impugned FIR owing to the compromise arrived at between the petitioner and respondents 4 to 8 herein.

¶4Mr. Owais Shafi, present, appears on behalf of respondents 4 to 8 and would admit that the respondents 4 to 8 have entered into the compromise with the petitioner herein qua the death of the deceased and consequently quashment of the FIR in question.

¶5Mr. Syed Musaib Dy.AG, present appears on behalf of respondents 1 to 3. Mr. Musaib in principle is also not averse to the disposal of the petition and would submit that provided the case of the parties falls

within the ambit and scope of the judgement passed by the Apex Court in this regard.

Heard counsel for the parties and perused the record.

¶6According to the counsel for the petitioner one Ubaid Ahmad S/o respondent 4 and 5 herein and brother of respondents 6 to 8 herein got electrocuted on 05.08.2023 allegedly while executing work of the petitioner herein and sustained serious injuries and died later on and consequently the impugned FIR got registered against the petitioner for offences under Section 304-A.

¶7The petitioner as also the respondents 4 to 8 herein are present in person. Respondents 4 to 8 herein have stated at bar that they have entered into a compromise with the petitioner and have amicably settled the matter and, as such, do not oppose the quashment of the impugned FIR. The statement of respondents 4 to 8 is taken on record.

¶8The moot point for consideration of this Court in the instant petition, having regard to the facts and circumstances of the case would be, as to whether impugned FIR could be quashed in the instant petition in exercise of inherent powers enshrined under Section 482 Cr.PC. Law in this regard is settled by the Apex Court in case titled as 'Gian Singh v. State of Punjab and Another' reported in 2012 (10) SCC 303, wherein at paragraph 61 following has been held: - "61.The 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 victims 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 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, the High Court may quash 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 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 of 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".

And the Apex Court in case titled as 'Parbatbhai Aahir Alias Parbatbhai Bhimsinhbhai Karmur and Others v. State of Gujarat and Another' reported in 2017 (9) SCC 641, held at paragraph 16, as under:- "16. The broad principles which emerge from the precedents on the subject, may be summarized in the following propositions:

16.1 Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognizes and preserves powers which in herein the High Court;

16.2 The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.

16.3 In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power.

16.4 While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or

(ii) to prevent an abuse of the process of any court.

16.5 The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and

victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated.

16.6 In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences.

16.7 As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned.

16.8 Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may inappropriate situations fall for quashing where parties have settled the dispute.

16.9 In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and

16.10 There is yet an exception to the principle set out in propositions

16.8. and 16.9. above. Economic offences involving the financial and economic wellbeing of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanor. The consequences of the act complained of upon the financial or economic system will weigh in the balance."

¶9Keeping in mind the aforesaid position and principles of law and having regard to the facts of the present case as well as the fact that the petitioner as also respondents 4 and 8 have entered into a compromise qua the matter which had resulted into registration of FIR in question, as such, under these circumstances the possibility of conviction of petitioner herein is remote and bleak and continuation of criminal case would rather put the petitioner to great oppression and extreme injustice besides would be unfair and contrary to the interest of justice as the same otherwise would amount to abuse of process of law.

¶10Having regard to the aforesaid facts and circumstances, it would be appropriate and in the interest of justice to quash FIR No. 89/2023 dated 05.08.2023 registered with Police Station Kangan.

Accordingly, petition is allowed and FIR No. 89/2023 dated

05.08.2023 registered with Police Station Kangan for commission of offence under Sections 304-A IPC is quashed.

¶11Disposed of.

(JAVED IQBAL WANI)

JUDGE

SRINAGAR

29.12.2023 Ishaq

S. No. 81 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CRM(M) No. 743/2023 CM No. 1696/2023 Ghulam Mohammad Khan …Petitioner/Appellant(s) Through: Mr. Lone Altaf, Advocate with Mr. Abid Jeelani, Advocate. Vs. Government of J&K and Ors. ...Respondent(s) Through: Mr. Syed Musaib, DyAG. Mr. Owais Shafi, Advocate. CORAM: HON'BLE MR JUSTICE JAVED IQBAL WANI, JUDGE