TMI Blog2023 (5) TMI 1280X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 Cr.P.C. Similarly, when the Revisional Court considered, it has been clearly mentioned that the offence is not compoundable offence under the provision of Section 320 Cr.P.C, and therefore, it has been mentioned that said compromise have got no bearing in the offence. This proposition of law is unswallowable and cannot be accepted. The scope and ambit of Section 482 Cr.P.C. is in much wider than that of Section 320 Cr.P.C. Expression of word 'Evidence' in Section 319 Cr.P.C. - HELD THAT:- For the exercise of power under Section 319 Cr.P.C., the use of word `evidence' means material that has come before the court during an inquiry or trial by it and not otherwise. If from the evidence led in the trial the court is of the opinion that a person not accused before it, has also committed the offence, the court may summon such person under Section 319 Cr.P.C. The word evidence therefore has to be understood in its widest sense, both at the stage of trial and, even at the stage of inquiry, as used under Section 319 Cr.P.C. The court, therefore, should be understood to have the power to proceed against any person after summoning him on the basis of any such mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble court may kindly be pleased to exercise power under section 482 Cr.P.C. and in terms of the law laid down by the Supreme Court in the case of Parbatbhai Aahir(supra) pass an appropriate order quashing the criminal proceeding in so far as the applicants are concerned in case crime no.0264 of 2018 registered in Police Station-Nazirabad, District-Kanpur Nagar and also quash the revisional rejection order dated 16.12.2022 as well as the summons issued to the applicants dated 22.11.2022 so that justice be done. 3. During the arguments, it was urged by Sri Anurag Khanna, learned Senior Counsel appearing for the applicant to allow the present application in the terms of the law laid down by Hon'ble Apex Court in the case of Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Others Vs. State of Gujarat and another, reported in (2017) 9 SCC 641 , decided on 4th October, 2017 and other catena of decisions decided by Hon'ble Apex Court on this issue, pass an appropriate order quashing the criminal proceedings in the light of the compromise dated 04.10.2019 and 10.10.2019 between the contesting parties named above in so far as the applicants are concerned in case cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Vikram Singh Chauhan and Mr Man Singh, in favour of M/s A.K. Enterprises in respect of certain landed property at Village Hatipura Tehsil Barod, District-Agar Malwa, Madhya Pradesh. Applicant no.1, Gagan Pal Ahuja endorsed the said sale deed on behalf of the partnership firm i.e. M/s A.K. Enterprises. The consideration for the execution of the aforesaid sale deed was Rs. 67 lacs and Rs. 50 lacs and the same was paid by respondent no.2 and applicant no.1 respectively. The respondent no.2 paid the amount directly to Sri Vikram Singh and Sri Man Singh. 8. In the year 2016 after digesting the amount, the said Vikram Singh Chauhan has admitted the fact that the so-called sale deed with regard to aforesaid landed property was never registered and said transaction was not legally completed. Sensing that something sneaky and shabby may occur, Sri Devendra Singh Dua-respondent no.2 have backed out from the said partnership firm and a fresh partnership deed came into existence on 01.04.2016, between Ms. Meeta Agrawal, w/o Sonu Dua, Gagan Pal Singh Ahuja and Jaspal Singh Ahuja. 9. Soon after coming to know that the nefarious design of Vikram Singh Chauhan and others, on 16.10.2017, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheques were fallen due, they were duly encashed in the account of Meeta Dua and Devendra Singh Dua respectively and entire outstanding sum was credited in their respective accounts. Thus, opposite party no.2 has admitted, that he has got no objection, if the prosecution against the applicants may be dropped. Taking into account the said acknowledgement by opposite party no.2, I.O. of the case have submitted the 'CLOSURE REPORT' against the applicants only after taking those compromise/settlement between the parties as part of Case Diary and taking them on record in Parcha Tittama No. 4. 12. After submission of the charge sheet, the remaining accused persons were put to trial after framing the charges against them. It is worthwhile to point out that no charges were framed against the present applicants as they were non-accused, and their names were dropped by the I.O. on account of aforementioned compromise and settlement between the contesting parties. On 06.04.2021 and 06.12.2021 in examination-in-chief and its cross-examination, PW-1, informant Devendra Singh Dua, in no uncertain terms has admitted (a) that initially he has been duped by 67 lacs; (b) he has signed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17. Aggrieved by the order dated 23.08.2022 passed by the Additional C.M.M. Court No. 3, Kanpur Nagar, allowing the 319 Cr.P.C. application moved by the Public Prosecutor, the applicants have preferred Criminal Revision under section 397 Cr.P.C registered as Criminal Revision No. 390 of 2022. Ultimately, that criminal revision too was rejected by the learned Revisional Court confirming the orders dated 23.08.2022. While rejecting the said revision preferred by the applicants, learned Revisional Court pleased to observe the following :- 18. Hence, the present application under section 482 Cr.P.C assailing the order dated 23.08.2022 and 16.12.2022 respectively. From the records, it is clear that proceeding against the remaining co-accused persons namely Vikram Singh Chauhan and Man Singh is still pending and proceeding smoothly. 19. Per contra, a short counter affidavit has been filed on behalf of Devendra Singh Dua, opposite party no.2 sworn by Sonu Dua and in the said counter affidavit, in paragraph no.11, the deponent of the counter affidavit acknowledges that the compromise deed has been executed on 04.10.2019 and 10.10.2019 between the parties after receiving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... friction, then it is a finest hour of the justice . Dispute which has their genesis in a matrimonial discord, landlord-tenant matters, commercial transactions and other such matters can safely be dealt by the Court by exercising its power under section 482 Cr.P.C. In the event of the compromise, the said power is to be used in its true sense in its totality and shall not be used in its abridged form. There can never be any such rigid rules prescribed in exercise of such power, especially in the absence of any premonitions to forecast and predict eventualities which the cause of justice may throw up during the course of litigation. 23. The power to do complete justice is the very essence of every judicial justice dispensation system. It cannot be diluted by the distorted perceptions and is not slave to anything, except to caution and circumspection, the standard of which the Court sets before it, in exercise of such plenary and unflattered power inherently vested in it while donning the cloak of compassion to achieve the end of justice. No embargo, be in a shape of Section 320 Cr.PC.(Cr.P.C.) or any other such curtailment, can whittle down the powers under section 482 Cr.P.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is pending), whether it would be possible to quash the FIR by the High Court under Section 482 of the Code or by this Court exercising jurisdiction under Article 136 of the Constitution of India? 8) The above question was recently considered by this Court in Shiji @ Pappu Ors. vs. Radhika Anr. (2011) 10 SCC 705. The question posed in that case was Whether the criminal proceedings in question could be quashed in the facts and circumstances of the case having regard to the settlement that the parties had arrived at. After adverting to Section 482 of the Code and various decisions, this Court concluded as under: 17. It is manifest that simply because an offence is not compoundable under Section 320 CrPC is by itself no reason for the High Court to refuse exercise of its power under Section 482 CrPC. That power can in our opinion be exercised in cases where there is no chance of recording a conviction against the accused and the entire exercise of a trial is destined to be an exercise in futility. There is a subtle distinction between compounding of offences by the parties before the trial court or in appeal on the one hand and the exercise of power by the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances, the power under Section 482 may be exercised. Further, in view of the settlement arrived at between Respondent No. 2-the complainant and the appellant (Accused No. 3), there is no chance of recording a conviction insofar as the present appellant is concerned and the entire exercise of trial is destined to be an exercise in futility. Inasmuch as the matter has not reached the stage of trial, we are of the view that the High Court, by exercising the inherent power under Section 482 of the Code even in offences which are not compoundable under Section 320 , may quash the prosecution. However, as observed in Shiji (supra), the power under Section 482 has to be exercised sparingly and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. In other words, the exercise of power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse of the process of law. 27. Recently, Hon'ble the Apex Court expanding the horizon of Section 482 Cr.P.C. have acceded that in the event, the parties agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no hesitation to accept that opposite party no.2 has validly entered into compromise with the applicants on 04.10.2019 and 10.10.2019 leaving behind rest of the charge sheeted accused 29. I have perused the order under challenge dated 23.08.2022 of the Additional C.M.M. Kanpur Nagar in which in no uncertain terms submits that mere on the ground of settlement between the parties, the gravity of the offence cannot be liquidated or the offence itself cannot be evaporated and therefore, have allowed the 319 Cr.P.C. application moved by the Public Prosecutor. 30. As quoted above, learned A.C.M.M. Kanpur Nagar, ignoring the compromise, and the parcha tittama no.4, has wrongly averred that mere compromise would not end the rigors of the punishment or the offence itself. This finding by the learned Magistrate is dehors of the ratio laid down by Hon'ble Apex Court in the cases of (i) Shiji @ Pappu and Others VS. Radhika and Another, (2011) 10 SCC 705 (ii) Dimpey Gujral and others Vs. Union Territory through Administrator, U.T. Chandigarh and others, (2013) 11 SCC 497 (iii)Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Others Vs. State of Gujarat and another, (2017) 9 SCC 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court proceeds against any person under sub-section (1), then- (a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. 34. Sri Manish Tiwary, learned Senior Counsel, at the outset, without mincing any words, have accepted that there is truce and compromise between the parties. He further submits that as per his instructions, his client has received the outstanding amount of Rs. 67 lacs but he has unable to give satisfactory reply as to what is the occasion for moving application under section 319 Cr.P.C. summoning the applicants. It seems that the only motive could be attributed for moving this application is simply an arm twisting of the applicants so that they may give the interest over it. This suggestion by the Court, was not disputed by the learned Senior Counsel. In addition to this, he has not denied the statements of PW-1, Devendra Singh Dua and his cross-examination mentioned in aforesaid paragraph no.12. On thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law, and therefore, will be inappropriate to deny the exercise of such power to the court in our criminal justice system where it is not uncommon that the real accused or the kingpins, at times, get away by manipulating the investigation or the prosecuting agency. The desire to avoid the trial is so strong that an accused makes all effort at times to get away himself absolve even at the stage of investigation or inquiry even though, he is connected with commission of the offence. The legislature cannot be presumed to have all the eventualities and the circumstances and therefore, it is the duty of the Court to give full affects to the word used by the legislature so as to encompass any situation which the court may have to tackle while proceeding to trial an offence and not to allow a person who deserve to be tried to go scot free by not being arraigned in the trial in spite of possibility of his complicity which can be gathered from the documents presented by the prosecution. 38. Now focusing upon the moot question the expression 'Evidence' and its true import during trial? Answering to this query, whether the expression 'Evidence' used in section 319 Cr.P.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence, etc. 40. In Lal Suraj @ Suraj Singh Anr. v. State of Jharkhand, reported in (2009) 2 SCC 696, a two-Judge Bench of Hon'ble the Supreme Court held that a court framing a charge would have before it all the materials on record which were required to be proved by the prosecution. In a case where, however, the court exercises its jurisdiction under Section 319 Cr.P.C., the power has to be exercised on the basis of the fresh evidence brought before the court. There lies a fine but clear distinction. The word 'evidence' in Section 319 Cr.P.C. contemplates the evidence of witnesses given in the court. 41. Ordinarily, it is only after the charges are framed that the stage of recording of evidence is reached. A bare perusal of Section 227 Cr.P.C. would show that the legislature has used the terms record of the case and the documents submitted therewith . It is in this context that the word 'evidence' as appearing in Section 319 Cr.P.C. has to be read and understood. The material collected at the stage of investigation can at best be used for a purpose as provided under Section 157 of the Evidence Act i.e. to corroborate or contradict the statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st possible canvass or should be used in limited sense? The reply to this query is apparent, that the expression Evidence in Section 319 Cr.P.C. has to be broadly understood and not literally that is evidence brought during the trial alone. It has to be given the broadest possible way. And thus, to suggest that since the said compromise deed is not exhibited during trial, the cross examination of the PW-1 Devendra Singh Dua and his candid acknowledgement that he has received the amount of Rs. 67 lacs from the opposite party no.2, after entering into compromise and the said compromise should be taken as piece of evidence while deciding the application under section 319 Cr.P.C. 46. The courts below were unmindful of the fact that the compromise between the parties and the summoning of non-accused persons(who are the parties of the compromise) cannot go hand in hand. Both are anti-thesis to each other and with the ulterior motive, this application was moved through Public Prosecutor. Under these circumstances and in the light of the aforesaid judgments and the expression 'Evidence', coupled with the fact that the parties have already entered into terms, I have no hesitat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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