Updates By: Advait Shukla
1. Madan Law & Anr v. State of Himachal Pradesh & Ors.
Case No.: (Cr.MMO No. 403 of 2018)
Date of pronouncing judgment: 19th NOVEMBER, 2018.
Coram: Hon’ble Mr. Tarlok Singh Chauhan, J.
Judgment By: Hon’ble Mr. Tarlok Singh Chauhan, J.A
Principles of law discussed:
- Code of Criminal Procedure – S. 482 – the power of the High Court in quashing a criminal proceeding or FIR u/s. 482 is different from the power given to a criminal court for compounding the offences under Section 320 of the Code.
- High Court while exercising the power u/s. 482 – must have due regard to the nature and gravity of the crime, the offence shall not be of serious and heinous in nature.
- High Court may quash criminal proceedings – because of the compromise between the offender and victim – even in non-compoundable offences in interest of justice.
- Broad Principles on this point of law –
Decision & Detailed Discussion:
The instant case is a petition, u/s. 482 of Cr.P.C., by which parties jointly seek quashing of FIR and all consequential proceedings arising therefrom in view of the compromise arrived at inter se them. FIR was registered u/ss. 341, 323, 504, 506 and 34 IPC and u/s. 181 of Motor Vehicle Act. The case was pending before CJM Court. During the pendency of the trial, petitioners No.1 to 3 had amicably settled the matter by entering into a compromise whereby they have resolved to put an end to the dispute and compromise and settle the issue once for all. Issue in this case was, whether the FIR in such like cases can, in fact, be quashed on the basis of compromise.
Hon’ble High Court relied upon the judgment of the Hon’ble Apex Court in Gian Singh vs. State of Punjab[1] wherein the relative scope of inherent power of High Court under Section 482 to quash criminal proceedings of non-compoundable offences in view of the compromise arrived at between the parties have been considered extensively. It was held that,
“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…
…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…
…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…”
The judgment in Gian’s Singh case (supra), in turn, was considered subsequently by another Bench of Hon’ble three Judges of Hon’ble Supreme Court in Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai vs. State of Gujarat and anr.[2] Recapitulated the broad ten principles emerging from this point. (para 16).
High applied above cases’ ratios & held that it would be noticed that the offences, which the petitioners-accused had committed do not in any manner fall within the exception as carved out by the Hon’ble Supreme Court in Gian Singh and Parbatbhai’s cases (supra). Thereby the FIRs were directed to be quashed, to avoid any prejudice & extreme injustice to the parties.
2. Hardayal Singh v. Rajinder Singh Thakur & Ors.
Case No: (Criminal Revision No. 22 of 2017.)
Date of pronouncing judgment: 19th NOVEMBER, 2018.
Coram: Hon’ble Mr. Tarlok Singh Chauhan, J.
Judgment by: Tarlok Singh Chauhan, J.
Principles of law discussed:
- Code of Criminal Procedure- S. 482 – The object of the provision being primarily compensatory, punitive element – only enforcing the compensatory element – compounding at the initial stage has to be encouraged but not debarred at later stage.
- Court has powers conferred upon it not only under sections 397 r/w Section 401 or Section 482 Cr.P.C. but also under Section 147 of N.I. Act, 1881, for accepting the settlement entered into between the parties and to quash the proceedings arising out of the proceedings, which have consequently culminated into a settlement.
- When the cheque amount already paid – with the acknowledgement by respondent – it is peculiar, for doing complete justice, the whole litigation should be given a quietus, subject to appropriate terms.
Decision & Detailed Discussion:
The issue in the instant case deals with S.138 of Negotiable Instruments Act, 1881. The Petitioner was the original accused against whom the Respondent no. 1 had instituted the complaint. The complaint was decided in favour of Respondent no. 1 by Ld. Addl. CJM, Shimla. By which Petitioner was convicted and sentenced for a period of six months & was directed to pay compensation of Rs. 5,50,000/- to Respondent no. 1. Appeal by the petitioner was dismissed by Sessions Judge, Shimla, thereby constraining the petitioner to file the instant revision petition.
Petitioner stated that the entire amount stands paid, therefore, the moot question in this instant case is whether a compromise, at this stage, can be permitted to be effected between the parties in case of offence u/s. 138 of N.I. Act, 1881.
The Judgment extensively discusses the law settled on this point.
Held:
“This court is not powerless in such situation and adequate powers have been conferred upon it not only under sections 397 read with Section 401 or Section 482 Cr.P.C. (hereinafter referred to as the Code) but also under Section 147 of the Act for accepting the settlement entered into between the parties and to quash the proceedings arising out of the proceedings, which have consequently culminated into a settlement. This power has been conferred to sub-serve the ends of justice or/and to prevent abuse of the process of any Court. Though, such power is required to be exercised with circumspection and in cases which do not involve heinous and serious offence of mental depravity or offences like murder, rape, dacoity etc.” (para 4).
Court referred to the three Judges Bench decision of the Hon’ble Supreme Court in Parbatbhai Aahir @ Parbatbhai and others vs. State of Gujarat and anr.[3] wherein after taking into consideration the entire law on the subject, the Hon’ble Supreme Court has laid down the broad principles for exercise of powers under Section 482 of the Code. Relevant part cited below:
“(i) 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 recognises and preserves powers which inhere in the High Court;
… (viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;
(ix) 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;”
Apart from the above, court referred to recent judgment of the Hon’ble Supreme Court in Meters and Instruments Private Limited and another versus Kanchan Mehta[4] wherein after taking into consideration the object of introducing Section 138 and other provisions of Chapter XVII in the Act in the year 1988, it was observed as under: –
“18. From the above discussion following aspects emerge-
18.1. Offence under Section 138 of the Act is primarily a civil wrong. Burden of proof is on accused in view presumption under Section 139 but the standard of such proof is “preponderance of probabilities”. The same has to be normally tried summarily as per provisions of summary trial under the Cr.P.C . but with such variation as may be appropriate to proceedings under Chapter XVII of the Act. Thus read, principle of Section 258 Cr.P.C. will apply and the Court can close the proceedings and discharge the accused on satisfaction that the cheque amount with assessed costs and interest is paid and if there is no reason to proceed with the punitive aspect.
18.2. The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found acceptable to the parties or the Court.
18.3. Though compounding requires consent of both parties, even in absence of such consent, the Court, in the interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused…”
Further, the reliance was made on two very recent judgments of the Hon’ble Apex Court in Bhangu Trading Co. and another vs. Surjit Singh (dead) through LRs[5] and in terms of the subsequent judgment in N.P. Murugesan vs. C. Krishnamurthy[6], wherein the court decided that when the cheque amount has been already paid, with the acknowledgement of the respondent, it is peculiar, for doing complete justice, the whole litigation should be given a quietus, subject to appropriate terms.
Based on above decisions Court held,this is a fit case to exercise the powers not only under Sections 397, 401 and Section 482 of the Code, but even under Section 147 of the N. I. Act, 188
3. Bhoop Ram v. State of Himachal Pradesh
Case No. (Criminal Revision No. 388 of 2018)
Date of reserving judgment: 16th November 2018
Date of pronouncing judgment: 19th November 2018
Coram: Hon’ble Mr. Vivek Singh Thakur, J.
Judgment by: Hon’ble Mr. Vivek Singh Thakur, J.
Principles of law discussed:
- Code of Criminal Procedure: S. 437(5) – Very cogent and overwhelming circumstances are necessary – for an order directing the cancellation of bail already granted bail – bail once granted should not be cancelled in a mechanical manner – Rejection of bail stands on different footing – as cancellation of bail is a harsh order because it takes away the liberty of an individual granted – is not to be lightly resorted to.
- Order granting the bail, on the ground of being illegal or contrary to law – can only be set aside by the Court superior to the Court granting the bail – not by the same Court as Section 362 Cr.P.C. operates as a bar. – However, the provisions of Section 437 (5) and 439(2) Cr.P.C. operates in different situation than envisaged in Section 362 Cr.P.C.
- Non-payment of amount, directed to be deposited by the petitioner/accused in the writ petition, cannot be considered as a ground for cancellation of bail by exercising the power under Section 437(5) of Cr.P.C (Laid down in this case). – power u/s. 437(5) shall be exercised well within the parameters of law laid down by the apex court.
Decision & Discussion:
The Instant case is a revision petition against the order of the JMFC exercising power u/s. 437(5) of Cr.P.C., ordering cancellation of bail of the petitioner. In the present case, Issue of scope of power of cancellation of bail after its grant is involved. Whether this power is given to magistrate under S. 437(5) of Cr.P.C. is discussed in detail. Hon’ble High has discussed that the said power has to be exercised keeping in mind restriction u/s. 362 of Cr.P.C. Section 362 Cr.P.C. creates a bar upon Court from altering or reviewing its judgment or final order disposing of a case except to correct a clerical or arithmetical error.
Hon’ble High Court has relied upon various decisions of the Apex Court stated below:
Apex Court in Dolat Ram, Mehboob Dawood vs. State of Haryana[7] and CBI vs. Subramani Gopal Krishnan[8] has laid down that,
“Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted. Generally speaking, the ground for cancellation of bail are, interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concessions granted to the accused in any manner…
… In other words, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. Rejection of bail stands on different footing as cancellation of bail is a harsh order because it takes away the liberty of an individual granted and is not to be lightly resorted to.”
Further, In Abdul Basit alias Raju and others vs. Mohd.Abdul Kadir Chuadhary and anr.[9]
“…that order granting the bail, on the ground of being illegal or contrary to law, can only be set aside by the Court superior to the Court granting the bail and not by the same Court as Section 362 Cr.P.C. operates as a bar to any alteration or review of case disposed of by the Court except permitting correction of clerical or arithmetical errors by the said Court and the review of granting the bail is not permissible by the same Courts.
… However, the provisions of Section 437 (5) and 439(2) Cr.P.C. operates in different situation than envisaged in Section 362 Cr.P.C.”
Law laid down by this judgment:
Court held,
“29. …Non-payment of amount, directed to be deposited by the petitioner/accused in the writ petition, cannot be considered as a ground for cancellation of bail by exercising the power under Section 437(5) of Cr.P.C.
- There is difference between civil and criminal jurisprudence for fastening criminal and/or civil liability. As discussed above, learned Magistrate has failed to consider the application filed by State in accordance with law but was swayed by irrelevant circumstances which were not sufficient to cancel the bail ignoring well defined parameters established in various pronouncements of the Apex Court.
4. Arun Kumar v. State of Himachal Pradesh
Case No. (Cr.MP(M) No. 1480 of 2018)
Date of pronouncing judgment: 19th NOVEMBER, 2018.
Coram: Mr. Sandeep Sharma, J.
Judgment by: Mr. Sandeep Sharma, J.
Principles of law discussed:
- Object of the bail – to secure the attendance of the accused in the trial – normal rule is of bail and not jail.
- Jurisdiction to grant bail – Discretionary nature – it has to be exercised with care ad caution – balancing between valuable right of liberty of an individual and the interest of the society in general.
- Principles while deciding petition of bail laid down by Apex Court – reiterated.
Decision & Detailed Discussion:
Court referred to some important cases of Apex Court clearing the current position of law regarding the grant of Bail. The Court said, “object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail.”
It referred to Sanjay Chandra v. CBI[10] & Manoranjana Sinh Alias Gupta v. CBI[11]
“The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon…
… it would be improper for any court to refuse bail as a mark of disapproval of a conduct whether an accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him to taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care ad caution by balancing the valuable right of liberty of an individual and the interest of the society in general.”
Further, court referred to Apex Court Decision in, Prasanta Kumar Sarkar v. Ashis Chatterjee and Anr.[12] Where, the 8 principles while deciding petition for bail were laid, as follows:
“(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail”
Further, court has also referred to various other landmark decisions of Apex court on similar ground the bail, listed below:
Umarmia @ Mamumia vs. State of Gujarat[13] (Para 11)
Paramjit Singh v. State (NCT of Delhi)[14]
& Dataram Singh vs. State of Uttar Pradesh & Anr[15].
[1] (2012) 10 SCC 303.
[2] (2017) 9 SCC 641.
[3] Criminal Appeal No. 1723 of 2017, decided on 4th October 2017.
[4] (2018) 1 SCC 560
[5] Criminal Appeal Nos. 808 and 809 of 2018 decided on 02.07.2018.
[6] Criminal Appeal No.818 of 2018, decided on 04.07.2018.
[7] (1995)1 SCC 349.
[8] (2011)5 SCC 296.
[9] (2014)10 SCC 754.
[10] (2012) 1 SCC 49.
[11] (2017) 5 SCC 218.
[12] (2010) 14 SCC 496.
[13] (2017) 2 SCC 731.
[14] (1999) 9 SCC 252.
[15] Criminal Appeal No. 227/2018 decided on 06/02/2018.
Advait is a 2016-19 batch student at ILS Law College, Pune.
Disclaimer: Although we try to ensure that the information provided, whether in relation to the products, services, or offering or otherwise provided (hereinafter mentioned as “INFORMATION”) on the website is correct at the time of publishing, we or any third parties do not provide any warranty or guarantee as to the accuracy, timeliness, performance, completeness or suitability of the information and materials found or offered on this website for any particular purpose. It shall be your own responsibility to ensure that any products, services or information available through this website meet your specific requirements. Neither the website nor any person/organization acting on its behalf may accept any legal liability/responsibility.
Criminal Law Research & Review 