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Cr.P.C. S. 482 – Quashing based on compromise - Non-compoundable offences, seriousness of the offences, distinction between a personal or private wrong and a social wrong and the social impact thereof – Duty to scan the facts - High Court, in exercise of its powers under Section 482 of Cr.P.C., relying on Shiji @ Pappu v. Radhika, (2011) 10 SCC 705 quashed the criminal proceedings against the accused on the ground that the accused and the complainant have settled the disputes amicably - However, High Court has not at all considered the fact that the offences alleged were non-compoundable offences as per Section 320 of the Cr.P.C. - High Court has not at all considered the relevant facts and circumstances of the case, more particularly the seriousness of the offences and its social impact - High Court has mechanically quashed the respective FIRs - High Court has not at all considered the distinction between a personal or private wrong and a social wrong and the social impact – The Court’s principal duty, while exercising the powers under Section 482 Cr.P.C. to quash the criminal proceedings, should be to scan the entire facts to find out the thrust of the allegations and the crux of the settlement - It is the experience of the Judge that comes to his aid and the said experience should be used with care, caution, circumspection and courageous prudence - In the case at hand, the High Court has not at all taken pains to scrutinise the entire conspectus of facts in proper perspective and has quashed the criminal proceedings mechanically. Even, the quashing of the respective FIRs by the High Court in the present cases for the offences under Sections 307, 294 and 34 of the IPC and 394 of the IPC, 11/13 of M.P.D.V.P.K. Act and Sections 25/27 of the Arms Act respectively, and that too in exercise of powers under Section 482 of the Cr.P.C. is just contrary to the law laid down by this Court in a catena of decisions. State of Maharashtra vs. Vikram Anantrai Doshi, (2014) 15 SCC 29, relied. 2019 SCeJ 283
Cr.P.C. S. 482 – Quashing based on compromise - High court relying on Shiji @ Pappu v. Radhika, (2011) 10 SCC 705 quashed the criminal proceedings - Reliance placed upon the decision of this Court in the case of Shiji (supra), while quashing the respective FIRs by observing that as the complainant has compromised with the accused, there is no possibility of recording a conviction, and/or the further trial would be an exercise in futility is concerned, we are of the opinion that the High Court has clearly erred in quashing the FIRs on the aforesaid ground - High Court has misread or misapplied the said decision to the facts of the cases on hand - The High Court ought to have appreciated that it is not in every case where the complainant has entered into a compromise with the accused, there may not be any conviction - Such observations are presumptive and many a time too early to opine - In a given case, it may happen that the prosecution still can prove the guilt by leading cogent evidence and examining the other witnesses and the relevant evidence/material, more particularly when the dispute is not a commercial transaction and/or of a civil nature and/or is not a private wrong - The said decision may be applicable in a case which has its origin in the civil dispute between the parties; the parties have resolved the dispute; that the offence is not against the society at large and/or the same may not have social impact; the dispute is a family/matrimonial dispute etc. - The aforesaid decision may not be applicable in a case where the offences alleged are very serious and grave offences, having a social impact like offences under Section 307 IPC and 25/27 of the Arms Act etc. - Therefore, without proper application of mind to the relevant facts and circumstances, in our view, the High Court has materially erred in mechanically quashing the respective FIRs, by observing that in view of the compromise, there are no chances of recording conviction and/or the further trial would be an exercise in futility. The High Court has mechanically considered the aforesaid decision of this Court in the case of Shiji (supra), without considering the relevant facts and circumstances of the case. 2019 SCeJ 283
In the case of Shiji (supra), this Court found that the case had its origin in the civil dispute between the parties, which dispute was resolved by them and therefore this Court observed that, ‘that being so, continuance of the prosecution where the complainant is not ready to support the allegations…will be a futile exercise that will serve no purpose’. In the aforesaid case, it was also further observed ‘that even the alleged two eyewitnesses, however, closely related to the complainant, were not supporting the prosecution version’, and to that this Court observed and held ‘that the continuance of the proceedings is nothing but an empty formality and Section 482 Cr.P.C. can, in such circumstances, be justifiably invoked by the High Court to prevent abuse of the process of law and thereby preventing a wasteful exercise by the courts below. The said decision may be applicable in a case which has its origin in the civil dispute between the parties; the parties have resolved the dispute; that the offence is not against the society at large and/or the same may not have social impact; the dispute is a family/matrimonial dispute etc. The aforesaid decision may not be applicable in a case where the offences alleged are very serious and grave offences, having a social impact like offences under Section 307 IPC and 25/27 of the Arms Act etc. Therefore, without proper application of mind to the relevant facts and circumstances, in our view, the High Court has materially erred in mechanically quashing the respective FIRs, by observing that in view of the compromise, there are no chances of recording conviction and/or the further trial would be an exercise in futility. The High Court has mechanically considered the aforesaid decision of this Court in the case of Shiji (supra), without considering the relevant facts and circumstances of the case. 2019 SCeJ 283
Cr.P.C. S. 482 – Quashing based on compromise - High Court has not considered the antecedents of the accused - It has come on record that the accused persons were facing number of trials for the serious offences - The aforesaid would be relevant factors, while exercising the inherent powers under Section 482 Cr.P.C and while considering the application for quashing the FIR/complaint/criminal proceedings - In fact, in such a situation, the High Court ought to have been more vigilant and ought to have considered relevant facts and circumstances under which the accused got the settlement entered into - The High Court has not at all considered the aforesaid relevant circumstances, while exercising the power under Section 482 Cr.P.C. – Order of quashing based on compromise set aside. Held,Even otherwise, in the facts and circumstances of the case High Court has erred in quashing the FIR. It is required to be noted that the FIR was lodged on 21.12.2012 for the offence alleged to happen on 21.12.2012. All the accused were absconding. After a period of approximately three months, they approached the High Court by way of filing a petition under Section 482 of the Cr.P.C., i.e., on 12.03.2013. The learned Chief Judicial Magistrate issued a proclamation under Section 82 of the Cr.P.C. against the accused persons on 14.03.2013. In the meantime, the accused managed to get the affidavits of the complainant and the two witnesses dated 09.02.2013, and the High Court quashed the FIR on 15.03.2013, i.e., within a period of three days from the date of filing the petition. The High Court has also not considered the antecedents of the accused. It has come on record that the accused persons were facing number of trials for the serious offences. The aforesaid would be relevant factors, while exercising the inherent powers under Section 482 Cr.P.C. 2019 SCeJ 283
Cr.P.C., Section 482 - Quashing - Allegations of civil nature - The correctness or otherwise of the allegations has to be decided only in the Trial - At the initial stage of issuance of process it is not open to the Courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused - Criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature - If the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted - Indian Penal Code, 1860, Section 420, 465, 467, 468, 471 read with Section 34.
Cr.P.C., Section 482 - Quashing - Quashing the criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive - If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same - It is not necessary that a meticulous analysis of the case should be done before the Trial to find out whether the case would end in conviction or acquittal - If it appears on a reading of the complaint and consideration of the allegations therein, in the light of the statement made on oath that the ingredients of the offence are disclosed, there would be no justification for the High Court to interfere - Defences that may be available, or facts/aspects which when established during the trial, may lead to acquittal, are not grounds for quashing the complaint at the threshold.
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4 January, 2019
CrPC, 1860, S. 482 - Compromise quashing – Non compoundable offences - High Court quashed criminal proceedings against the Accused for offences under Sections 307, 294 read with Section 34 of the IPC, solely on the ground that the original Complainant and Accused have settled the dispute and the original Complainant does not want to prosecute the accused and, therefore, there is no chance of recording conviction against the accused persons - Offences under Sections 307, 294 read with Section 34 of the IPC are not non-compoundable offences and, looking to the serious allegations against the accused, High Court has committed a grave error in quashing the criminal proceedings for the offences under Sections 307, 294 read with Section 34 of the IPC solely on the ground that the original Complainant and the accused have settled the dispute - IPC, S. 307, 294 read with Section 34. 2019 SCeJ 58
4 January, 2019
Penal Code, 1860 – Section 307, 325 - Quashed – Considering material on record, the medical certificate more particularly, the injuries sustained by the original Complainant - Complainant sustained injuries on the nose and fracture of the nasal bone, the case may fall within the grievous hurt, but it cannot be said that even, prima facie, a case is made out for the offence under Section 307 of the IPC - It cannot be said that the intention of the accused was to cause death of the complainant – High Court rightly passed order holding that a charge under Section 325/149 ought to have been framed and setting aside the order passed by the trial Court insofar as framing the charge under Section 307 of the IPC - CrPC, 1860, S. 482 . 2019 SCeJ 49
CrPC , S. 482 - Jurisdiction to quash the proceedings at the stage of issuance of process, or at the stage of committal, or at the stage of framing of charges, that is to say before the commencement of actual trial, in the light of material placed on record by the accused – Steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC laid down - Rajiv Thapar and Others v. Madan Lal Kapoor, (2013) 3 SCC 330
28. High Court, in exercise of its jurisdiction under Section 482 CrPC, must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/ complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position that in a case where the prosecution/ complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.
29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have far-reaching consequences inasmuch as it would negate the prosecution’s/complainant’s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/ complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC:
Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?
Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?
Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?
Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused.”
CrPC Section 482 - Whether once the charge sheet is filed, petition for quashing of FIR is untenable? - There is nothing in the words of Section 482 which restricts the exercise of the power of the Court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR - It is settled principle of law that the High court can exercise jurisdiction under Section 482 of Cr.P.C even when the discharge application is pending with the trial court - Indeed, it would be a travesty to hold that proceedings initiated against a person can be interfered with at the stage of FIR but not if it has advanced, and the allegations have materialized into a charge sheet - On the contrary it could be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge sheet after investigation - The power is undoubtedly conferred to prevent abuse of process of power of any court. (2018)2 SCeJ 1719
CrPC Section 482, 406 - Allegation that the Appellant has fraudulently transferred the property which is the subject matter of the developer agreement to his wife and has thereby committed criminal breach of trust - This charge is wholly untenable and rather extraordinary since the alleged fraudulent transfer of property by the Appellant to his wife, assuming it to be illegal, by no stretch of imagination can constitute the offence of a criminal breach of trust, since the property was not entrusted by the complainant to the Appellants - The property belonged to Appellant and there was therefore no question of Appellants having been entrusted with their own property, and that too by the complainant, who had merely entered into a development agreement in respect of the property.
(2018)2 SCeJ 1719
Criminal Procedure Code, Section 482 - Revisional jurisdiction of the High Court - High Court has not at all assigned any cogent reason for reaching its conclusion - We are conscious of the fact that revisional jurisdiction must be exercised by the High Court only in exceptional circumstances, where there is a gross miscarriage of justice, manifest illegality or perversity in the judgment of the lower court - Interference would be warranted only if there is a manifest illegality in the judgment of the lower court - But in the matter on hand, in our considered opinion, because of nonfurnishing of valid reasons by the Trial Court, while coming to its conclusion, there is manifest illegality, and thus, the view taken by the High Court cannot be termed as reasonable - When there is a glaring defect or manifest error leading to a flagrant miscarriage of justice, this Court cannot shut its eyes merely on technicalities, particularly while exercising jurisdiction under Article 136 of the Constitution - In our considered opinion, the revisional jurisdiction vested in the High Court has not been properly exercised by the High Court - The High Court should not have proceeded casually while affirming the judgment of the trial Court - Having regard to the material on record and having regard to the magnitude of the offence, the High Court should have been more serious while considering the revision petition.(2018)2 SCeJournal 1390
Criminal Procedure Code, 1973 S. 482 - Court is of the view that notwithstanding the fact the offence under Section 498A IPC is a non-compoundable offence, there should be no impediment in quashing the FIR under this section, if the Court is otherwise satisfied that the facts and circumstances of the case so Warrant - Indian Penal Code, 1860 (XLV of 1860) S. 498-A. (183) PLR (Del.)
Criminal Procedure Code, 1973 S. 482 - Negotiable Instruments Act, 1881 (26 of 1881) S. 138 - Whether the cheques were given as security or not, or whether there was outstanding liability or not is a question of fact which could have been determined only by the trial court after recording evidence of the parties - High Court not have expressed its view on the disputed question of fact - As to whether the signatory of demand notice was authorized by the complainant company or not, could not have been examined by the High Court in its jurisdiction under Section 482 of the Code of Criminal Procedure when such plea was controverted by the complainant before it - High Court exceeded its jurisdiction by giving its opinion on disputed questions of fact, before the trial Court. (S.C.)(179) PLR
Criminal Procedure Code, 1973 S. 482 - Since matter of this FIR is essentially matrimonial, which now stands mutually and amicably settled between the parties, therefore, continuance of proceedings arising out of the FIR in question would be an exercise in futility and is a fit case for this Court to exercise its inherent jurisdiction and quash the same. (183) PLR (Del.)
Criminal Procedure Code, 1973 S. 482 - Where the High Court is convinced that the offences are entirely personal in nature and therefore do not affect public peace or tranquillity and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, it should not hesitate to quash them. (183) PLR (Del.)
Criminal Procedure Code, 1973 S. 482, 156(3) - Where the police does not register FIR - It is inter alia provided that a petition under Section 482 Cr.P.C. is not to be entertained for registering a FIR and the petitioner should be relegated to the Magistrate, who has power to register FIR under Section 156(3) Cr.P.C. or direct the police to register FIR - In view of the above, the petitioners may, if so advised, avail other remedies in accordance with law. (183) PLR
Criminal Procedure Code, 1974 S. 482 - Indian Penal Code, 1860 (XLV of 1860) S. 376, 120-B, Petitioners - Real question would be that if a female, who is 27 years old at the time of registration of FIR, was having an affair with VS for about 2-1/2 years, whether his family members could be held responsible in any way on the basis of story propounded in the FIR and revealed during investigation - Petitioner No.1 is the married sister of VS - Allegations so far as petitioners are concerned would pale into insignificance when child was born to the complainant after about 1 year and 4 months after registration of FIR - There is no assertion in the FIR or challan report that parents or the married sister of VS had any role to play when VS and the complainant started having an affair about 2-1/2 years before registration of FIR - Petitioners cannot be at all prosecuted for offence under Section 376 of the Code as their role was introduced while settling the issue of marriage between the complainant and (180) PLR
Criminal Procedure Code, 1974 S. 482, 320 - High Court in exercise of its inherent powers under Section 482 of the Code of Criminal Procedure can quash the criminal proceedings in matrimonial disputes in non-compoundable offences and Section 320 of the Code of Criminal Procedure does not limit such power - Hindu Marriage Act, 1955 (25 of 1955). (178) PLR