Author: Adviat Shukla
1) Joginder Pal v. State of Himachal Pradesh & Ors.
Case No.: Criminal MMO No. 322 Of 2018
Date of Pronouncing Judgment: 07/12/2018
Coram: The Hon’ble Mr. Vivek Singh Thakur, J.
Judgment Per: The Hon’ble Mr. Vivek Singh Thakur, J.
PRINCIPLES OF LAW DISCUSSED:
- 482 CrPC: To secure ends of Justice – Where parties have compromised – Offence of private nature – FIR quashed by consent.
- 279 of IPC: Though not compoundable u/s. 320 of Cr.P.C. – In interest of justice – where parties have compromised – S.279 FIR quashed.
DECISION & DISCUSSION:
The present case is an Application for quashing of FIR by compromise between the parties. The Hon’ble High Court of Himachal Pradesh has discussed various important decisions dealing with the power of the High Court u/s. 482 is discussed.
The court has widely discussed whether Inherent Jurisdiction u/s. 482 can be invoked to compromise those offences which are not compoundable u/s. 320 of Cr.P.C.
Reliance was put on a three Judges Bench of the Apex Court in Gian Singh Vs. State of Punjab and Ors.[1] explaining that High Court has inherent power under Section 482, where it was held that, “these powers are to be exercised to secure the ends of justice or to prevent abuse of process of any Court and these powers can be exercised to quash criminal proceedings or complaint or FIR in appropriate cases where offender and victim have settled their dispute and for that purpose no definite category of offence can be prescribed.”
However, it is also observed that Courts must have due regard to nature and gravity of the crime and criminal proceedings in heinous and serious offences or offence like murder, rape and dacoity etc. should not be quashed despite victim or victim family have settled the dispute with offender. Jurisdiction vested in High Court under Section 482 Cr.P.C. is held to be exercisable for quashing criminal proceedings in cases having overwhelming and predominantly civil flavour particularly offences arising from commercial, financial, mercantile, civil partnership, or such like transactions, or even offences arising out of matrimony relating to dowry etc., family disputes or other such disputes where wrong is basically private or personal nature where parties mutually resolve their dispute amicably.
Further, reference was made to decision in Narinder Singh and Ors. Vs. State of Punjab and Ors.[2] where the court laid down principles, by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercise its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with criminal proceedings.
Principle laid down in this judgment:
Hon’ble High Court of Himachal Pradesh held:
“No doubt Sections 279 is not compoundable under Section 320 Cr. P.C. However, as explained by Hon’ble Supreme Court in Gian Singh’s and Narinder Singh’s cases supra, power of High Court under Section 482 Cr.PC is not inhibited by the provisions of Section 320 Cr.P.C. and FIR as well as criminal proceedings can be quashed by exercising inherent powers under Section 482 Cr.PC, it was warranted in given facts and circumstances of the case for ends of justice or to prevent abuse of the process of any Court, even in those cases which are not compoundable where parties have settled the matter between themselves.”
2) Naveen Kumar & Ors. v. State of Himachal Pradesh & Anr.
Case No.: Criminal MMO No. 190 Of 2018
Date of Pronouncing Judgment: 11/12/2018
Coram: The Hon’ble Mr. Justice Tarlok Singh Chauhan, J.
Judgment Per: The Hon’ble Mr. Justice Tarlok Singh Chauhan, J.
PRINCIPLES OF LAW DISCUSSED:
- 197 of Code of Criminal Decision – there has to be a reasonable connection between the omission or commission and the discharge of official duty or the act committed was under the colour of the office held by the official – If the acts, omission or commission of which is totally alien to the discharge of the official duty, question of invoking Section 197 Cr.P.C. does not arise.
- the protection given under Section 197 of the Act is to protect responsible public servants against the institution of vexatious criminal proceedings – However, this protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act.
- Rule of law – “Be you never so high, the law is above you” – There is nothing like a power without any limit or constraint.
DECISION & DISCUSSION:
The instant case deals with an issue that, whether the act done by the petitioners was in discharge of official duty or by virtue of their office, so as to entitle them to the protection under Criminal Procedure Code, 1973 read with Section 197 of the Code.
Judgment states that “it is more than settled that sanction to prosecute under Section 197 of the Act is required only when the alleged act has reasonable nexus between the act done and official duty.”
On this point reference was made to certain recent judgments as follows:
Hon’ble Supreme Court in Devender Singh and others vs. State of Punjab through CBI[3], wherein after taking into consideration the entire law on the subject, the principles emerged therefrom were summarized as under:
- Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime.
- Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far, its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 CrPC has to be construed narrowly and in a restricted manner.
- Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under section 197 Cr.P.C. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor it is possible to lay down such rule.
- In case the assault made is intrinsically connected with or related to performance of official duties sanction would be necessary under Section 197 CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 CrPC would apply.
- In case sanction is necessary it has to be decided by competent authority and sanction has to be issued on the basis of sound objective assessment. The court is not to be a sanctioning authority.
- Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of Court at a later stage, finding to that effect is permissible and such a plea can be taken first time before appellate Court. It may arise at inception itself. There is no requirement that accused must wait till charges are framed.
- Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage.
- Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. Question of sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in the course of the progress of the case and it would be open to accused to place material during the course of trial for showing what his duty was. Accused has the right to lead evidence in support of his case on merits.
- In some case it may not be possible to decide the question effectively and finally without giving opportunity to the defence to adduce evidence. Question of good faith or bad faith may be decided on conclusion of trial.”
Further, reference is made to judgment of Apex Court in In Punjab State Wareshousing Corporation vs. Bhushan Chander and another[4], where the Supreme Court considered entire law on this subject and concluded that:
“A survey of the precedents makes it absolutely clear that there has to be a reasonable connection between the omission or commission and the discharge of official duty or the act committed was under the colour of the office held by the official. If the acts, omission or commission of which is totally alien to the discharge of the official duty, question of invoking Section 197 Cr.P.C. does not arise”
Principle laid down in this judgment:
Hon’ble High Court of Himachal Pradesh held:
“the protection given under Section 197 of the Act is to protect responsible public servants against the institution of vexatious criminal proceedings for offences alleged to have been committed by them, while they acting or purporting to act as public servant. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. However, this protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, the public servant acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection…
…12. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant…”
“…the country is governed by the rule of law, and to put it in the immortal words of the 17th Century Church Man and Thomas Fuller “Be you never so high, the law is above you”.
In a system governed by the rule of law there is nothing like absolute or unbridled power exercisable at the whims and fancies of the repositories of such powers. There is nothing like a power without any limit or constraint.”
Therefore, it was held that where the public servant had acted illegally, he isn’t entitled to protection u/s. 197 of Cr.P.C.
[1] (2012) 10 SCC 303.
[2] (2014) 6 SCC 466
[3] 2016 (12) SCC 87.
[4] 2016 (13) SCC 44.
About the Author: Advait is a 2016-19 Batch student at ILS Law College, Pune.
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