MANU/PH/2716/2011 Equivalent Citation: 2011(3)RCR(Criminal)407 IN THE HIGH COURT OF PUNJAB AND HARYANA C.R.M. No.

M-36087 of 2010 Decided On: 28.01.2011 Appellants: Kanwardeep Singh and Anr. Vs. Respondent: State of Punjab and Ors. Hon'ble Judges/Coram: Nirmaljit Kaur, J. Counsels: For Appellant/Petitioner/Plaintiff: Bipan Ghai, Sr. Adv. and Vinod Ghai, Adv. For Respondents/Defendant: K.S. Pannu, DAG and R.K. Gupta, Adv. for the Respondent No. 2 Subject: Criminal Catch Words Mentioned IN Acts/Rules/Orders: Arms Act - Section 25, Arms Act - Section 27, Arms Act - Section 54, Arms Act - Section 59; Code of Criminal Procedure (CrPC) - Section 482; Indian Penal Code - Section 34, Indian Penal Code - Section 307 Cases Referred: Kulwinder Singh and Ors. v. State of Punjab and Anr. 2007 (3) RCR 1052; Madan Mohan Abbot v. State of Punjab MANU/SC/1204/2008 : 2008 (2) R.C.R. (Criminal) 429 : 2008 (2) R.A.J. 529 : (2008) 4 SCC 582; B.S. Joshi and Ors. v. State of Haryana and Anr. 2003 (2) RCR 888; Pepsi Food Ltd. and Anr. v. Special Judicial Magistrate and Ors. MANU/SC/1090/1998 : 1997 (4) R.C.R.761 : (1998) 5 SCC 749; Madhavrao Jiwajirao Scindia and Ors. v. Sambhajirao Chandrojirao Angre and Ors. MANU/SC/0261/1988 : 1988 (1) R.C.R. 565 : (1988) 1 SCC 692 Disposition: Petition allowed JUDGMENT Nirmaljit Kaur, J. 1. This is a petition under Section 482 Code of Criminal Procedure for quashing of FIR No. 44 dated 19.03.2010 under Sections 307, 34 of Indian Penal Code and Section 25, 27, 54, 59 of Arms Act, Police Station Dhariwal, District Gurdaspur, Punjab (Annexure P-1) which was got registered by Respondent No. 2 - complainant against the present Petitioners on the basis of the compromise dated 30.10.2010 arrived at between the parties. Copy of the same has been placed on record as Annexure P-2. 2. In the present case, the aforesaid FIR was got registered by Respondents No. 2 against the Petitioners with the allegations that Petitioner No. 1 fired at the complainant but the bullet did not hit him. However, the matter was stated to have been compromised vide compromise deed dated 30.10.2010. 3. The complainant is present in Court along with his counsel. He has also filed his affidavit in Court today, stating therein, that in the said incident no injury was suffered by him or any one and, as such, he has no objection if the said FIR is quashed. 4. No doubt, in the present case, Section 307 IPC and Section 25, 27, 54, 59 of Arms Act have been attributed to the Petitioners but it is a case of no injury as the complainant himself in his affidavit stated that no one was injured in the said occurrence. 5. Reply by way of affidavit of Jaspal Singh, PPS, Deputy Superintendent of Police (Rural) Gurdaspur on behalf of Respondent No. 1 has also been filed in Court today. The same is taken on record. As per the said reply, during investigation, it was found that no offence under Sections 307, 34 IPC and Sections 25, 27, 54, 59 of the Arms Act is made out against the present Petitioners. It is also stated in the reply that cancellation report has also been prepared and the same is yet to be filed in the Court. 6. Keeping in view the peculiar facts of the case as well as the reply filed by the State, there is no impediments in the way of the High Court in accepting the compromise. 7. The Full Bench of this Court in the case of Kulwinder Singh and Ors. v. State of Punjab and Anr. 2007 (3) RCR 1052 has observed as under:

The compromise, in a modern society, is the sine qua non of harmony and orderly behaviour. It is the soul of justice and if the power under Section 482 of the Code of Criminal Procedure is used to enhance such a compromise which, in turn, enhances the social amity and reduced friction, then it truly is finest hour of justice. Disputes which have their genesis in a matrimonial discord, landlord-tenant matters, commercial transactions and other such matters can safely be dealt with by the court exercising its power under Section 482 of the Code of Criminal Procedure in the event of a compromise, but this is not to say power is limited to such

cases. There can never be any such rigid rules to prescribe the exercise of such power.
The Apex Court in the case of 'Madan Mohan Abbot v. State of Punjab' reported as MANU/SC/1204/2008 : 2008 (2) R.C.R. (Cri) 429 : 2008 (2) R.A.J. 529 : (2008) 4 SCC 582 emphasised in para No. 6 as follows:

6. We need to emphasize that it is perhaps advisable that in disputes where the question involved is of a purely personal nature, the Court should ordinarily accept the terms of the compromise even in criminal proceedings as keeping the matter alive with no possibility of a result in favour of the prosecution is a luxury which the Courts, grossly overburdened as they are, cannot afford and that the time so saved can be utilised in deciding more effective and meaningful litigation. This is a common sense approach to the matter based on ground of realities and bereft of the technicalities of the law.
8. The said compromise has been arrived at between the parties without any pressure. The complainant has no objection if the said FIR is quashed. 9. Hon'ble the Supreme Court in B.S. Joshi and Ors. v. State of Haryana and Anr. reported as 2003 (2) RCR (Cri) 888, in para 6 and 11, held as under:

6. In Pepsi Food Ltd. and Anr. v. Special Judicial Magistrate and Ors. MANU/SC/1090/1998 : 1997 (4) R.C.R. (Cri) 761 : (1998) 5 SCC 749, this Court with reference to Bhajan Lal's case observed that the guidelines laid therein as to where the court will exercise jurisdiction under Section 482 of the Code could not be inflexible or laying rigid formulae to be followed by the courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. It is well settled that these powers have no limits. of course, where there is more power, it becomes necessary to exercise utmost care and caution while invoicing such powers. 11. In Madhavrao Jiwajirao Scindia and Ors. v. Sambhajirao Chandrojirao Angre and Ors. MANU/SC/0261/1988 : 1988 (1) R.C.R. (Cri) 565 : (1988) 1 SCC 692, it was held that while exercising inherent power of quashing under Section 482, it is for the High Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. Where, in the opinion of the Court, chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may, while taking into consideration the special facts of a case, also quash the proceedings.
10. Thus, taking into account the allegations, compromise dated 30.10.2010, affidavit of the complainant as well as reply filed by the State that offence under Section 307 is not made out and the cancellation report is already prepared, it is a fit case, where there is no impediment in the way of this Court to exercise its inherent powers under Section 482 Code of Criminal Procedure for quashing of the present FIR and subsequent proceedings arising out of the same. 11. Accordingly, the present petition is allowed and FIR No. 44 dated 19.03.2010 under Sections 307, 34 of Indian Penal Code and Section 25, 27, 54, 59 of Arms Act, Police Station Dhariwal, District Gurdaspur, Punjab (Annexure P-1) and subsequent proceedings arising out the same are hereby quashed. Allowed in the aforesaid terms. Manupatra Information Solutions Pvt. Ltd.
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MANU/SC/0261/1988

Equivalent Citation: 1988(12)ACR312(SC), AIR1988SC709, 1988(36)BLJR292, 1988(90)BOMLR108, 1988CriLJ853, 1988(1)Crimes780(SC), JT1988(1)SC279, 1988()MPJR(SC)1, 1988(1)SCALE261, (1988)1SCC692, [1988]2SCR930 IN THE SUPREME COURT OF INDIA Criminal Appeals Nos. 657-58 of 1986 Decided On: 09.02.1988 Appellants: Madhavrao Jiwajirao Scindia and Ors. Vs. Respondent: Sambhajirao Chandrojirao Angre and Ors. Hon'ble G. L. Oza, M. M. Dutt and Ranganath Misra, JJ. Subject: Criminal Catch Words Mentioned IN Acts/Rules/Orders: Code of Criminal Procedure (CrPC) - Section 482; Indian Penal Code (IPC) - Section 34, Indian Penal Code (IPC) - Section 120B, Indian Penal Code (IPC) - Section 406, Indian Penal Code (IPC) - Section 467 Case Note: Criminal - Quashing of proceeding - Offence committed punishable under Sections 406, 467 read with Section 34 and 120-B of the Indian Penal Code, 1860 - Held, in the setting of the matter, criminal case should not be continued - Criminal prosecution quashed - Criminal Appeal No. 657 of 1986 allowed - Criminal Appeal No. 658 of 1986 dismissed. JUDGMENT Ranganath Misra, J. 1. Both the appeals are by special leave and are on an application under Section 482 of the CrPC, the High Court by the impugned decision quashed the prosecution against two of the four accused persons. The two accused persons whose prosecution has not been quashed are appellants in Criminal Appeal No. 657 of 1986 while the complainant assails the decision of the High Court quashing the prosecution of the two accused persons in Criminal Appeal No. 658 of 1986. 2. Rajmata Smt. Vijaya Raje Scindia of Gwalior created a trust on 23rd of February, 1966, known as "Srikrishna Madhava Trust" with four trustees including the settler, the other trustees being Madhavarao Jiwajirao Scindia, Col. Eknath Trimbak Patil and Kumar Shanbhajirao Chandrajirao Angre. Madhavrao is the son of the settler while the other two, though residents of Gwalior, are not members of the family. 'Vijay Vilas' a large house located in the Bombay city constituted a part, of the trust property. Russi Homi Awary and Damodar Rangrappa Shenoy, respondents in criminal Appeal No. 652 of 1986, were employed as Secretary and Manager respectively of the Trust between 1976 and 1982. Flat No. 15 of 'Vijay Vilas' was in the occupation of one Sushiladevi Kathait on tenancy basis. In June, 1981, the said tenant surrendered the tenancy and on 9th of June, 1981, the Secretary issued a certificate to the effect that the tenancy had terminated. On 31st of March, 1982, the said Secretary issued another certificate to the effect that the aforesaid tenancy terminated with effect from 1st April, 1980, after the entire rental liability had been liquidated. On the allegation that the two officers of the Trust in conspiracy with trustee Madhavrao and his wife Smt. Madhavi had created documents showing tenancy in respect of that flat in favour of Smt. Madhavi, a complaint was filed by trustee Angre in the Court of the Metropolitan Magistrate, 28th Court, Esplanade, Bombay on 27th July, 1983. Judges/Coram:

Summons were directed to be issued against the four persons referred to above for offences punishable under Sections 406, 467 read with Section 34 and 120-B of the Indian Penal Code. The accused persons challenged the proceedings before the High Court by filing an application under Section 482 of the Code and prayed for quashing of the criminal case. By the impugned order dated 13th February, 1986 the High Court quashed the proceedings so far as accused Nos. 2 and 4 were concerned but sustained the order of the Metropolitan Magistrate in regard to the remaining two accused persons. Hence these appeals have been filed as already stated. 3. The settler and the accused being mother and son, ah attempt was made to bring about a settlement but that having failed the appeals have been heard on merit and are being disposed of by this common judgment. 4. Dr. Singhvi, learned Counsel appearing for the accused appellants has contended that the criminal proceedings are without any basis and if at all, a civil wrong may be said to have been caused. According to him, the trust deed authorised trustee Madhavrao to look after the affairs of the Trust. The flat had been tenanted at a particular rent when the tenant vacated; and a new tenant, had to be inducted - it being the common case that the fiat was intended for tenancy - Madhavi wanted to be the tenant and at the rate of rent which the outgoing tenant was paying, a new tenancy was created. Under the law applicable to tenancies in Bombay, a higher rent is not chargeable and as such no higher amount of rent could be claimed by the Trust in regard to the flat. The wife of the trustee is an independent person having her own income and the tenancy in favour of Madhavi cannot be considered to be creating an interest in favour of the trustee. Dr. Singhvi further relied upon a lawyer's notice issued on behalf of the trust calling upon Madhavi to surrender the tenancy in favour of the Trust failing which action was threatened. Madhavi volunteered to surrender the tenancy and thus there was really no justification, according to Dr. Singhvi, for initiating criminal proceedings. In the facts and circumstances of the case narrated above, the appellants' counsel contended that there was no meanse rea for the offences as alleged and at the most it amounted to a civil wrong. He argued that the mother and the son had fallen out and on that score the machinery of the Court should not be permitted to be utilised for private vengeance. 5. Mr. Jethmalani, appearing for the complainant, on the other hand, maintained that it was a clear case of breach of trust and according to him every breach of trust would simultaneously be a civil wrong and a criminal offence and if summons have been issued by the Metropolitan Magistrate on the basis of the complainant's allegations, no objection could be taken at the preliminary stage, it is appropriate that the complainant should be given an opportunity to establish his case by leading evidence. He relied upon the provisions of Section 53 of the Indian Trust Act which provides:

No trustee, and no person who has recently ceased to be a trustee, may, without the permission of a principal Civil Court of original jurisdiction, buy or become mortgagee or lessee of the trust-property or any part thereof; and such permission shall not be given unless the proposed purchase, mortgage or lease is manifestly for the advantage of the beneficiary.
6. We have considered the relevant documents including the Trust deed as also the correspondence following the creation of the tenancy. We have also kept in view the submissions advanced on behalf of the parties by their respective counsel. We have further taken into consideration the natural relationship between the settler and the son and his wife and the fall out. 7. The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. 8. Mr. Jethmalani has submitted, as we have already noted, that a case of breach of trust is both a civil wrong and a criminal offence. There would be certain situations where it would predominantly be a civil wrong and may or may not amount to a criminal offence. We are of the view that this case is one of that type where, if at all, the facts may constitute a civil wrong and the ingredients of the criminal offences are wanting. Several decisions were cited before us in support of the respective stands taken by counsel for the parties. It is unnecessary to refer to them. In course of hearing of the appeals. Dr. Singhvi made it clear that Madhavi does not claim any interest in the tenancy. In the setting of the matter we are inclined to hold that the criminal case should not be continued. 9. Criminal Appeal No. 657 of 1986 is allowed and the criminal prosecution against the two appellants being Madhavrao and Rusi Homi Avari is quashed. In view of what we have stated above, Criminal Appeal No. 658 of 1986 has to fail and is dismissed.

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MANU/SC/0126/1980

Equivalent

Citation: 1980()ACR423(SC),

AIR1980SC1883,

1980CriLJ1308,

(1980)4SCC631,

(1981)SCC(Cri)93, [1981]1SCR935 IN THE SUPREME COURT OF INDIA Criminal Appeal No. 687 of 1980 Decided On: 10.10.1980 Appellants: H.S. Bains, Director, Small Saving-Cum-Deputy Secretary Finance, Punjab, Chandigarh Vs. Respondent: State (Union Territory of Chandigarh) Hon'ble O. Chinnappa Reddy and R. S. Sarkaria, JJ. Counsels: For Appellant/Petitioner/Plaintiff: Urmila Sirur, Adv For Respondents/Defendant: Shobha Dixit and M.N. Shroff, Advs. Subject: Criminal Catch Words Mentioned IN Acts/Rules/Orders: Indian Penal Code (IPC) - Section 156(3), Indian Penal Code (IPC) - Section 173(1), Indian Penal Code (IPC) - Section 190(1), Indian Penal Code (IPC) - Section 307, Indian Penal Code (IPC) Section 324,Indian Penal Code (IPC) - Section 448, Indian Penal Code (IPC) - Section 451, Indian Penal Code (IPC) - Section 506; Code of Criminal Procedure (CrPC) - Section 156(1), Code of Criminal Procedure (CrPC) - Section 156(3), Code of Criminal Procedure (CrPC) - Section 157, Code of Criminal Procedure (CrPC) - Section 169, Code of Criminal Procedure (CrPC) - Section 170, Code of Criminal Procedure (CrPC) - Section 173, Code of Criminal Procedure (CrPC) - Section 173(1), Code of Criminal Procedure (CrPC) - Section 173(2), Code of Criminal Procedure (CrPC) - Section 190, Code of Criminal Procedure (CrPC) - Section 190(1), Code of Criminal Procedure (CrPC) - Section 200, Code of Criminal Procedure (CrPC) - Section 202, Code of Criminal Procedure (CrPC) - Section 203, Code of Criminal Procedure (CrPC) - Section 204 Prior History: Appeal by special leave from the Judgment and Order dated April 18, 1980 of the Punjab and Haryana High Court in Crl. Misc. No. 26-M/1980 Citing Reference: Judges/Coram:

Mentioned 2

Case

Note:

Criminal - cognizance of offence - Sections 156 (3), 173 (1), 190 (1), 307, 324, 448, 451 and 506 of Indian Penal Code, 1860 and Sections 156 (1), 156 (3), 157, 169, 170, 173, 173 (1), 173 (2), 190, 190 (1), 200, 202, 203 and 204 of Criminal Procedure Code, 1973 complaint submitted to Magistrate who ordered investigation by police under Section 156 (3) of Code of 1973 - police submitted report under Section 173 of Code of 1973 stating that no case had been made out against accused and case might be dropped - Magistrate disagreed with police and took cognizance of case directing issue of process to accused accused alleged Magistrate not competent to take cognizance of case as police report stated that accused did not commit the offence - Magistrate not bound by conclusions of complaint - held, Magistrate acted within jurisdiction in taking cognizance of offence and issuing process to accused notwithstanding that police report stated that no case had been made out.

JUDGMENT Chinnappa Reddy, J. 1. On August 13, 1979, Gurnam Singh a resident of Chandigarh submitted a complaint to the Judicial Magistrate 1st Class Chandigarh, alleging that the appellant H.S. Bains accompanied by two persons had come to his house in a car on the morning of August 11, 1979, at about 8 a.m., tress-passed into the house and threatened to kill him and his natural son if he did not take away his natural son Aman Deep Singh from the house of his sister Bakshish Kaur, who had taken the boy in adoption as she was issueless. Bakshish Kaur was the widow of the brother of the appellant and the adoption made by Bakshish Kaur was not to the liking of the appellant. It was alleged in the complaint that the appellant was armed with a revolver which he pointed at the complainant. The complainant raised a hue and cry. The accused and his companions fled away in their car. As August 11, 1979 and August 12, 1979 were holidays, he was able to file the complaint only on 13th August, 1979. The learned Magistrate to whom the complaint was submitted ordered an investigation by the police under Section 156(3) of the CrPC. The police after completing the investigation, submitted a report to the Magistrate under Section 173of the CrPC stating that the case against the appellant was not true and that it might be dropped. The police arrived at the conclusion that the case against the appellant was not true as their investigation revealed, according to them, that the appellant was at Amritsar with Shri Jai Singh, District Magistrate of Amritsar at 9 a.m. on August 11, 1979 and it was, therefore, impossible for him to have been at Chandigarh at 8 a.m. on August 11, 1979. The learned Magistrate after perusing the report submitted by the police disagreed with the conclusion of police, took cognizance of the case under Sections 448,451 and 506 of the Indian Penal Code and directed the issue of process to the appellant. Aggrieved by the issue of process, the appellant filed Criminal Miscellaneous Case No. 26-M of 1980, in the High Court of Punjab and Haryana to quash the proceedings before the Magistrate. The application was dismissed by the High Court and the appellant filed a petition for the grant of special leave to appeal against the order of the High Court. We granted Special Leave and straightaway heard the appeal with the consent of the parties. 2. Shri Kapil Sibal urged that the Magistrate had issued process to the accused without recording the statement, on oath, of the complainant and the witnesses under Section 200 Criminal Procedure Code and therefore, he must be taken to have taken cognizance of the case under Section 190(1)(b), as if upon a police report. Shri Sibal submitted that the Magistrate was not competent to take cognizance of the case as if it was upon a police report as the report under Section 173 Criminal Procedure Code submitted to him disclosed that no offence had been committed by the accused. According to Shri Sibal, in the circumstances of the case, the Magistrate, on receipt of the report under Section 173Criminal Procedure Code to the effect that the case against the accused was not proved, had only two options before him. He could either order a further investigation or he could take cognizance of the case as if upon a complaint, record the statements of the complainant and witnesses under Section200 Criminal Procedure Code and then proceed to issue process if he was satisfied that process ought to be issued. In any case Shri Sibal submitted that the order of the Ist Class Magistrate taking cognizance of the case was so unjudicial that it ought to be struck down. Shri Sibal invited our attention to two decisions of this Court : Abhinandan Jha and Ors. v. Dinesh Mishra MANU/SC/0054/1967 : 1968CriLJ97 ; and Tula Ram and Ors. v. Kishore Singh MANU/SC/0163/1977 : 1978CriLJ8 . 3. Chapter XII of the CrPC 1973 deals with information to the Police, and their powers to investigate. Section 156(1) vests in an officer incharge of a Police Station the power to investigate any cognizable case, without the order of a Magistrate. Section 156(3) authorises a Magistrate, empowered under Section 190, to order an investigation as mentioned in Section 156(1). The provisions from Section 157onwards are concerned with the power and procedure for investigation. Section 169 prescribes that if upon an investigation it appears to the officer incharge of the Police Station that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond (with or without sureties) to appear if and when required, before a Magistrate empowered to take cognizance of an offence on a police report and to try the accused or commit him for trial. Section 170 prescribes that if upon investigation it appears to the officer incharge of the Police Station that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of an offence on a police report and to try the accused or

commit him for trial. If the offence is bailable the officer shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed. Section 173(1) casts a duty upon the police officer to complete the investigation without unnecessary delay. Section 173(2)prescribes that as soon as the investigation is completed the officer incharge of the police station shall forward to a Magistrate empowered to take cognizance of an offence on a police report, a report in the prescribed form stating the various particulars mentioned in that sub-section. 4. Section 190(1) which occurs in Chap. XIV (Conditions requisite for initiation of proceedings) may be extracted at this stage. It is as follows :

190(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Subsection (2), may take cognizance of any offence(a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
What has been extracted is Section 190 as it stands at present. Section 190 of the previous Code was slightly different. Clause (1)(b) read as "upon a report in writing of such facts made by any policeofficer". In Clause (1)(c) after the word 'knowledge', the words 'or suspicion' occurred, and these words have now been omitted. 5. Chapter XV (Sections 200 to 203) of the Code deals with "complaints to Magistrates". A Magistrate taking cognizance of an offence on complaint is required by Section 200 to examine the complainant and the witnesses present, if any. Section 202 provides that a Magistrate taking cognizance of a case upon complaint, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Section 203 empowers the Magistrate to dismiss the complaint, if, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the enquiry or investigation (if any) under Section 202, the Magistrate is of the opinion that there is no sufficient ground for proceeding. Chapter XVI deals with "commencement of proceedings before Magistrate" and Section 204 enables a Magistrate to issue summons or a warrant as the case may be to secure the attendance of the accused if in the opinion of the Magistrate taking cognizance of the offence there is sufficient ground for proceeding. 6. It is seen from the provisions to which we have referred in the preceding paragraphs that on receipt of a complaint a Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under Section200. Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under Section 203. If in his opinion there is sufficient ground for proceeding he may issue process under Section 204. However, if he thinks fit, he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a Police Officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. On the other hand, in the first instance, on receipt of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation under Section 156(3). The police will then investigate and submit a report under Section 173(1). Oft receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(b) and straightaway issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The Police report under Section 173 will contain the facts discovered or unearthed by the police and the conclusion drawn by the police therefrom. The Magistrate is not bound by the conclusions drawn by the Police and he may decide to issue process even if the Police recommend that there is no sufficient ground for proceeding further. The Magistrate after receiving the Police report, may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under Section 200 Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under Section 156(3) and received a report under Section 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203and 204. Thus, a Magistrate who on receipt of a complaint, orders an investigation under Section156(3) and receives a police report under Section 173(1), may, thereafter, do one of three things : (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report : (3) he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section200. If he adopts the third alternative, he may hold or

direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be. 7. In Abhinandan Jha and Ors. v. Dinesh Mishra, (supra) the question arose whether a Magistrate to whom a report under Section 173(1) had been submitted to the effect that no case had been made out against the accused, could direct the police to file a charge-sheet, on his disagreeing with the report submitted by the Police. this Court held that the Magistrate had no jurisdiction to direct the police to submit a charge-sheet. It was open to the Magistrate to agree or disagree with the police report. If he agreed with the report that there was no case made out for issuing process to the accused, he might accept the report and close the proceedings. If he came to the conclusion that further investigation was necessary he might make an order to that effect under Section 156(3). If ultimately the Magistrate was of the opinion that the facts set out in the police report constituted an offence he could take cognizance of the offence, notwithstanding the contrary opinion of the police expressed in the report. While expressing the opinion that the Magistrate could take cognizance of the offence notwithstanding the contrary opinion of the police the Court observed that the Magistrate could take cognizance under Section 190(1)(c)'. We do not have any doubt that the reference to 'Section 190(1)(c)' was a mistake for 'Section 190(1)(b)'. That appears to be obvious to us. But Shri Kapil Sibal urged that the reference was indeed to Section 190(1)(c) since at that time Section 190(1)(c) included the words 'or suspicion' and the Court had apparently taken the view that the Magistrate could take cognizance of the offence not under Section 190(1)(b) as if on a police report but under Section 190(1)(c) as if 'on suspicion'. We do not agree with this submission. Section 190(1)(c) was never intended to apply to cases where there was a police report under Section 173(1). We find it impossible to say that a Magistrate who takes cognizance of an offence on the basis of the facts disclosed in a police report must be said to have taken cognizance of the offence on suspicion and not upon a police report merely because the Magistrate and the Police arrived at different conclusions from the facts. The Magistrate is not bound by the conclusions arrived at by the police even as he is not bound by the conclusions arrived at by the complainant in a complaint. If a complainant states the relevant facts in his complaint and alleges that the accused is guilty of an offence under Section 307 Indian Penal Code the Magistrate is not bound by the conclusion of the complainant. He may think that the facts disclose an offence under Section 324 Indian Penal Code only and he may take cognizance of an offence under Section 324instead of Section 307. Similarly if a police report mentions that half a dozen persons examined by them claim to be eye witnesses to a murder but that for various reasons the witnesses could not be believed, the Magistrate is not bound to accept the opinion of the police regarding the credibility of the witnesses. He may prefer to ignore the conclusions of the police regarding the credibility of the witnesses and take cognizance of the offence. If he does so, it would be on the basis of the statements of the witnesses as revealed by the police report. He would be taking cognizance upon the facts disclosed by the police report though not on the conclusions arrived at by the police. It could not be said in such a case that he was taking cognizance on suspicion. 8. In Tula Ram and Ors. v. Kishore Singh (supra) the Magistrate, on receiving a complaint, ordered an investigation under Section 156(3). The Police submitted a report indicating that no case had been made out against the accused. The Court, however, recorded the statements of the complainant and the witnesses and issued process against the accused. It was contended that the Magistrate acted without jurisdiction in taking cognizance of the case as if upon a complaint when the police had submitted a report that no case had been made out against the accused. this Court held that the Magistrate acted within his powers and observed that the complaint did not get exhausted as soon as the Magistrate ordered an investigation under Section 156(3). We are, therefore unable to agree with the submission of Shri Sibal that the Magistrate acted without jurisdiction in taking cognizance of the offence and issuing process to the accused notwithstanding the fact that the police report was to the effect that no case had been made out. 9. We do not propose to say a word about the merits of the case since it was entirely a matter for the learned Magistrate to take cognizance or not to take cognizance of the several offences. We however wish to observe that it was wholly unnecessary for the Magistrate to write such an elaborate order as if he was weighing the evidence and finally disposing of the case. We also desire to say that some of the observations of the learned Magistrate about the District Magistrate were wholly uncalled for as the latter was yet to appear before him as a witness. We are told that the case has already been transferred to some other Magistrate. It is, therefore, unnecessary to say anything further in the matter. The appeal is, therefore, dismissed.

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MANU/PH/0087/2011 Equivalent Citation: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANIGARH Crl. Misc. No. M-2363 of 2010 (O and M) Decided On: 19.01.2011 Appellants: Pooja Vaid and Anr. Vs. Respondent: State of Punjab and Anr. Hon'ble Judges/Coram: Daya Chaudhary, J. Subject: Criminal Catch Words Mentioned IN Acts/Rules/Orders: Indian Penal Code - Section 406, Indian Penal Code - Section 498A; Code of Criminal Procedure (CrPC) - Section 302(9), Code of Criminal Procedure (CrPC) - Section 320, Code of Criminal Procedure (CrPC) - Section 438, Code of Criminal Procedure (CrPC) - Section 482 Cases Referred: Mrs. Shakuntala Sawhney v. Mrs. Kaushalya Sawhney MANU/SC/0532/1979 : (1980) 1 SCC 63; Kulwinder Singh v. State of Punjab 2007 (3) R.C.R. 1052; Dharambir v. State of Haryana 2005 (3) RCR 426 : 2005 AC 424 : 2005 (2) LH 723 JUDGMENT Daya Chaudhary, J. Crl. Misc. No.55943 of 2010 1. This is an application for placing on record compromise dated 23.7.2010 Annexure P-6. 2. Application is allowed. Compromise filed with the Crl. Misc. application is taken on record. Crl. Misc. No.55944 of 2010 3. This is an application for impleading Sunil Vaid son of Sh. Krishan Lal Vaid as Petitioner No. 3 and Kamlesh Vaid widow of Krishan Lal Vaid as Petitioner No. 4. 4. Application is allowed. Sunil Vaid and Kamlesh Vaid are impleaded as Petitioners No. 3 and 4 respectively. Crl. Misc. No. M-2363 of 2010 5. The present petition has been filed for quashing of FIR No. 34 dated 9.2.2009 under Sections 498A/406IPC registered at Police Station Dina Nagar and other proceedings arising therefrom on the basis of compromise arrived at between the parties. 6. Learned Counsel for the Petitioners submits that initially the petition was filed on behalf of Pooja Vaid and Anil Vaid for quashing of FIR but subsequently by moving an application today, other two accused, namely, Sunil Vaid and Kamlesh Vaid are also impleaded as Petitioners No. 3 and 4 and compromise has been effected between the parties, which is annexed as Annexure P-6 with the petition. 7. Complainant Rimple Vaid-Respondent No. 2 is present in Court and has been identified by her counsel. She has also stated that the matter has been compromised with the Petitioners and she has no objection in quashing of the abovesaid FIR. 8. Learned State Counsel, on instructions from HC Kashmir Singh, submits that cancellation report has been submitted before the trial Court but the same has not been accepted so far. 9. After hearing the learned Counsel for the parties, I am of the considered view that continuation of impugned criminal proceedings between the parties would be an exercise in futility. The complainant herself does not want to pursue these proceedings and it shall be merely a formality and sheer wastage of precious time of the Court as complainant would not support the case of prosecution in view of compromise between the parties. It would be in the interest of the parties as well as in the large interest of the society, peace and harmony and in order to save both the families from avoidable litigation that the compromise arrived at between them is accepted by this Court. 10. It has been observed by Hon'ble the Apex Court in Mrs. Shakuntala Sawhney v. Mrs. Kaushalya Sawhney MANU/SC/0532/1979 : (1980)1 SCC 63 that "the finest Hour of Justice arrives propitiously when parties, despite falling apart, bury the hatchet and weave a sense of fellowship of reunion." The power to do complete justice is the very essence of every judicial justice dispensation system. It cannot be diluted by distorted perceptions and is not a slave to anything, except to the caution and circumspection, the standards of which the Court sets before it, in exercise of such plenary and unfettered power inherently vested in it while donning the cloak of compassion to achieve the ends of justice. Relying on the views adopted by the Hon'ble Supreme Court, the Five Judges Bench of this Court also observed in Kulwinder Singh v. State of Punjab 2007(3) R.C.R. 1052 that compounding of

offence which are not compoundable under Section 320(9) Cr.P.C., offence non-compoundable but parties entering into compromise, High Court has the power under Section 482 Code of Criminal Procedure to allow the compounding of non-compoundable offences and quash the prosecution where the High Court felt that the same was required to prevent the abuse of the process of Court or to otherwise secure the ends of justice. 11. While dealing with issue of quashing of FIR on the basis of compromise a Bench consisting of Five Hon'ble Judges of this Court in Kulwinder Singh's case (supra) while approving minority view in Dharambir v. State of Haryana 2005 (3) RCR 426 : 2005 AC 424 : 2005 (2) LH 723 (P&H) (FB), opined as under:

To conclude, it can safely be said that there can never be any hard and fast category which can be prescribed to enable the Court to exercise its power under Section 482, of the Code of Criminal Procedure The only principle that can be laid down is the one which has been incorporated in the Section itself, i.e, "to prevent abuse of the process of any Court" or " to secure the ends of justice.
12. No embargo, be in the shape of Section 320(9) Code of Criminal Procedure or any other such curtailment, can whittle down the power under Section 438 Code of Criminal Procedure 13. The compromise, in a modern society, is the sine qua non of harmony and orderly behaviour. It is the soul of justice and if the power under Section 482 Code of Criminal Procedure is used to enhance such a compromise which, in turn, enhances the social amity and reduces friction, then it truly is "finest hour of justice." Disputes which have their genesis in a matrimonial discord, landlord-tenant matters, commercialtransactions and other such matters can safely be dealt with by the Court by exercising its powers under Section 482 Code of Criminal Procedure in the event of a compromise, but this is not to say that the power is limited to such cases. There can never be any such rigid rule to prescribe the 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 a litigation. 14. The only inevitable conclusion from the above discussion is that there is no statutory bar under the Code of Criminal Procedure which can affect the inherent power ofd this Court under Section 482. Further, the same cannot be limited to matrimonial cases alone and the Court has the wide power to quash the proceedings even in non-compoundable offences notwithstanding the bar under Section 320 Cr.P.C., in order to prevent the abuse of law and to secure the ends of justice. 15. The power under Section 482 Code of Criminal Procedure is to be exercise Ex-Debitia Justitia to prevent an abuse of process of Court. There can neither be an exhaustive list nor the defined parameters to enable a High Court to invoke or exercise its inherent powers. It will always depend upon the facts and circumstances of each case. The power under Section 482 Code of Criminal Procedure has no limits. However, the High Court will exercise it sparingly and with utmost care and caution. The exercise of power has to be with circumspection and restraint. The Court is vital and an extra-ordinary effective instrument to maintain and control social order. The Courts play role of paramount importance in achieving peace, harmony and ever-lasting congeniality in society. Resolution of a dispute by way of a compromise between two warring groups, therefore, should attract the immediate and prompt attention of a Court which should endeavour to give full effect to the same unless such compromise is abhorrent to lawful composition of the society or would promote savagery. 16. Compromise in modern society is the sine qua non of harmony and orderly behaviour. As observed by Krishna Iyer J., the finest hour of justice arrives propitiously when parties despite falling apart, bury the hatchet and weave a sense of fellowship of reunion. Inherent power of the Court under Section 482 Code of Criminal Procedure is not limited to matrimonial cases alone. The Court has wide powers to quash the proceedings even in non-compoundable offences in order to prevent abuse of process of law and to secure ends of justice, notwithstanding bar under Section 320 Code of Criminal Procedure Exercise of power in a given situation will depend on facts of each case. The duty of the Court is not only to decide a list between the parties after a protracted litigation but it is a vital and extra-ordinary instrument to maintain and control social order. Resolution of dispute by way of compromise between two warring groups should be encouraged unless such compromise is abhorrent to lawful composition of society or would promote savagery, as held in Kulwinder Singh's case (supra). 17. For the reasons recorded above and having regard to the principles laid sown by the Five -Judges Bench of this Court in case of Kulwinder Singh's case (supra), this petition is allowed and impugned criminal proceedings arising out of FIR No. 34 dated 9.2.2009 under Sections 498A/406 IPC registered at Police Station Dina Nagar as well as all subsequent proceedings arising therefrom qua the Petitioners, namely, Pooja Vaid, Anil Vaid, Sunil Vaid and Kamlesh Vaid are quashed. Manupatra Information Solutions Pvt. Ltd.
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