Kasim Deen And Others vs State Of Himachal Pradesh And Others

FIR NUMBER,"51/18 dated 28.04.2018, Police Station Tissa, District Chamba under

Sections 307, 325, 451, 147, 149, 323 IPC

TRIAL COURT CASE NO.,"Sessions Trial No. 28 of 2018, pending before learned Sessions Judge,

Chamba, District Chamba, H.P

the entire matter without any coercion, duress and pressure vide compromise deed Annexure P-2.",

Mr. Nand Lal Thakur, learned Additional Advocate General has opposed the compromise and stated that even if the statements of the parties",

have been recorded i.e. before this Court has arrived at a conclusion that whether to quash the FIR or not and on this ground alone, the FIR cannot be",

quashed.,

I have gone through the pleadings in detail.,

The prayer clause of the petition reads as follows:-,

It is, therefore, respectfully prayed that the present petition may very kindly be allowed and FIR No.51/2018, dated 28.4.2018, registered under Section",

307, 325, 451, 147, 149, 323 IPC, at P.S. Tissa, District Chamba, H.P. and consequent proceedings in Criminal Case/Session Trial bearing registration",

No.28/2018 titled as State vs. Kasim Deen, and also the charge framed on 04-04-2019, pending before Ld. Sessions Judge, Chamba, H.P., may kindly",

be quashed and set-aside or any such other or further order which the Hon’ble Court may deem fit be also passed.â€​,

Although the petitioner is seeking quashing of framing of charges, but the copy of the said charge has not been placed on record. After the launch",

of the prosecution once the Court after taking cognizance framed charges, then the FIR and the police report under Section 173(2) comes to an end",

and it is substituted by the order framing of charges as well as the charge. In case any accused is aggrieved by framing of charge, the remedy",

available to such person is to challenge the order directing framing of charges as well as the charge by annexing its copy. In the present petition a,

cryptic prayer has been made to quash charges framed on 4.4.2019, but the copy of the order framing charges and copy of charge itself has not been",

annexed with the petition.,

In Reena Devi and others Versus State of Himachal Pradesh, this Court has held as under:-",

The respondent, through Superintendent of Police, Hamirpur, HP, filed a reply affidavit to this petition. In Paragraph No.7 of the response, he states",

that on 19.3.2019, the trial Court, based upon the police report, have already framed charges against the accused. Shri Nand Lal Thakur, Addl.",

Advocate General, appearing for the State of HP contended that the Petitioners 2 to 4, who are accused and against whom the charges stand framed,",

have neither challenged the order framing the charges nor the charges as spelled out in the Form No. 32 of the Second Schedule of CrPC, or placed",

on record the copies of these orders, as such the petition is not maintainable. His second contention is that once charges have been framed, then even",

for quashing of the same, on any ground, be it compromise or on merits, the legal recourse available is by filing a Criminal Revision petition under",

Section 397/401 CrPC and not by filing a petition under section 482 CrPC.,

Adverting to the first contention, the present petition was filed on 24.4.2019, i.e., after the framing of charges on 19.03.2019. In the first Paragraph",

of the petition, the averments are for quashing of FIR and for setting aside of consequent proceedings, and the same is the prayer of the petitioners.",

Since the charges have been framed then to cull the criminal proceedings, such an order needs to be set aside.",

The Petitioners neither placed with the petition the order framing charges nor the Form No. 32 of the Second Schedule of CrPC; as such the Petition,

is defective and not maintainable.,

To answer the second contention of Ld. Additional Advocate General, a survey of fundamental provisions of CrPC, from the setting into motion of",

the criminal machinery and its final termination, is required. The proposition of law that emerges is which remedy is available to the accused persons,",

who want to challenge the criminal charges framed against them, whether it is by filing a Criminal Revision Petition, under Ss. 397, 401 CrPC or 482",

CrPC. In the present case, the scope of Article 227 of the Constitution of India is not under consideration.",

Before discussing this proposition, it is apposite to state that compoundable criminal cases can be compromised at any stage. The best illustration",

would be the case involving an offence, which is compoundable under Section 320 of the CrPC. The Court can permit compounding of such matter at",

any stage, be it in Trial, Appeal or Revision. Even post-conviction, such an offence is compoundable under Section 320 CrPC. However, in those",

cases, not listed under the schedule of S. 320 CrPC, a petition under section 482 CrPC would be maintainable for quashing of all proceedings, based",

on the compromise or otherwise, as the case may be. The reason is the absence of any remedy available under the CrPC.",

Before arriving at any conclusion to ascertain the appropriate remedy for an accused, against whom, a notice of accusation has been issued, or the",

charge has been framed and who wants to challenge the same, the tour of the following stages will give the required exposure.",

Stage-1 The most prominent and the earliest provision which ignites the engine of criminal law and brings it into motion is the registration of FIR, under",

Section 154 of the CrPC. Needless to say, this provision confines to cognizable offences. After the investigation, if in the opinion of the Station House",

Officer, a case for the prosecution is made out, then he files a report under Section 173 of the CrPC. Any person arraigned as an accused in such FIR",

can seek its quashing from High Court having jurisdiction, by filing a petition under section 482 CrPC.",

Stage-2 Section 190 of the CrPC, envisages three situations, upon which the Magistrate can take cognizance of offence, namely, (a) Upon receiving a",

complaint of facts which constitutes 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 an offence has been committed. Exercising powers under Section 204 of CrPC, the Magistrate",

taking cognizance of offences, may proceed against an accused, if he believes in the existence of sufficient grounds for proceeding. Any person who",

has been arraigned as an accused and is aggrieved either by registration of FIR or filing of charge-sheet or taking cognizance or issuance of the,

process can seek adjudication under Section 482 of the CrPC. Order taking cognizance can also be challenged by filing a revision petition, in the",

Sessions Court or High Court. There will be a situation where after the filing of the petition for quashing of FIR, in the meantime, the charge-sheet is",

filed; the law is no more res Integra that in all those cases, FIR and all consequential proceedings can be quashed. An accused cannot approach a",

Sessions Court till this stage because the only available statutory remedy is by invoking inherent powers of High Court under Section 482 of the CrPC.,

Stage-3 The next stage in criminal proceedings is similar to transformation of a caterpillar emerging as a butterfly and it begins on the framing of,

charges under Sections 211, and 228 of CrPC or on issuance of notice of accusation under Section 251 of the CrPC. If not challenged, it shall",

culminate under section 229, 241 or 248 of the CrPC only by a judgment of acquittal or conviction. Once charges stand framed or the notice of",

accusation stands issued, as the case may be, then the appropriate remedy to challenge the same is only by filing Criminal Revision Petition in the",

Court where it lies and not by filing a petition under section 482 CrPC.,

Stage-4 The next stage is post conviction or acquittal. A judgment of conviction can only be challenged under Chapter-29 of the CrPC (Sections 372,

to 394). During the pendency of such an appeal, the parties may file an application for compounding of the offences but such applications in appeal,",

would be within and not without. A convict cannot bye-pass Chapter 29 and instead of filing a statutory appeal before the First Appellate Court cannot,

straightaway resort to Sections 397, 401 and 482 of the CrPC.",

Stage-5 The next stage is challenging the dismissal of the appeals of the convicts and that can be done by approaching the Courts under its,

Revisionary Jurisdiction, under section 397 -401 CrPC. During the pendency of such Revision Petitions, if parties compound the offences, then the",

process is similar to that in the appeals.,

The other stages, if any, would also tread the similar path and cross the similar obstacles.",

The above survey leads to an irresistible conclusion that once charges have been framed, then the remedy is not to file petition under Section 482",

of the CrPC but to invoke the revisionary jurisdiction under section 397 & 401 CrPC. However, in the present petition, what is sought to be quashed is",

FIR and all consequential proceedings, based upon the out of court compromise entered between the victim and the accused and the challenge is not",

on the merits of charges or accusations.,

Thus the question that needs an answer is as follows,",

What remedy is available to an accused who has compromised the offence after the charges have been framed or notice of accusation issued and,

before the pronouncement of the final judgment by the trial court?,

As already discussed in Stage 2, charges and notices of accusation can be challenged on merits, only by invoking revisionary jurisdiction, within the",

prescribed period of limitation. However, if parties compound the offence in the interregnum period of post charge pre judgment stage, than the matter",

for consideration before the Court would not be to assess the merits of charge but a finding on the compromise. After the compounding, the",

continuation of criminal proceedings would amount to abuse of process of law resulting in the miscarriage of Justice. Thus, the charges or the notice",

of accusations can also be quashed by filing a petition under section 482 CrPC, invoking the inherent jurisdiction of the High Court.",

Now, adverting to the averments made in the present petition, the Petitioners have carefully worded it as “quashing the FIR and all",

consequential proceedings,â€​ but such nomenclature would not mean quashing of charges. Moreover, although the quashing petition was filed after the",

framing of charges, but the petitioner did not place on the record even the copy of the order of framing of the charge. Therefore, this petition is",

defective.,

Given above, this petition, in the present form, is defective and cannot be entertained. Consequently, the petition is dismissed with liberty reserved",

to file afresh in accordance with law, if so desires.",

It is clarified that the dismissal of this petition on technical grounds shall not come in the way for filing new petition. It is also clarified that it shall,

be open for the petitioner to refer to the documents annexed with this petition without filing it afresh. It is further clarified that since the parties had,

entered into this compromise in good faith and similarly had made statements on oath in this Court in good faith. As such neither the compromise nor,

the statements made before this Court shall be read in evidence during the trial.,

Petition dismissed.,