Section 353,323,294 of ipc
jaideep
(Querist) 24 April 2020
This query is : Resolved
Dear Sir, one of my known person is charged under above mention section,the full story of incident is that:
The Accused have some domestic violence with his family member and spouse regarding some personal issues then the violence become uncontrollable so the wife of accused called police just to handle the situation 4 police man come in jeep and try to control the situation by applying physical pressure meanwhile the accused push one of the police man and run away then that police man charged the accused under the above mentioned section and sent him to jail and now the accused is on bail the trial is going on, the accused is suffering from a disease called bipolar disorder in which a person become very angry on the other hand very depressed, Now after knowing that the applicant i.e the police man ready to do Raazi Nama now the question is that:
1. Can all the allegation charged on accused can be dropped
2.How can accused be out of it and can be freed from all charges.
please suggest
3.
Guest
(Expert) 24 April 2020
Factors Reducing the Seriousness of Such Offences are -- 1) No Previous Convictions or no relevant or recent convictions 2) Remorse 3) Good Character and or Exemplary conduct 4)Sole and Primary Carer of dependent relatives 5) Age and or lack of maturity where it affects the responsibility of the Offender Etc. Like this many factors which would be considered by the Honorable Court. Apologizing in a pleading manner with the concerned Police would also help you. Better Discuss with a Local Good Criminal Side Senior Advocate at the earliest
Rajendra K Goyal
(Expert) 24 April 2020
First of all, about the sections under which the person is charged:
Section 323 in The Indian Penal Code (non-cognizable (NC), bailable, compoundable)
323. Punishment for voluntarily causing hurt.—Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Section 353 in The Indian Penal Code (Cognizable, Non bailable, Non-compoundable)
353. Assault or criminal force to deter public servant from discharge of his duty.—Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public serv¬ant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 294 of Indian penal code (Cognizable, Bailable, Offence)
Whoever, to the annoyance of others:
1. does any obscene act in any public place, or
2. sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.
In the above sections it is clear that section 353 is non compoundable, under thew situation, case withdrawal on the basis of Razinama is just difficult.
Rajendra K Goyal
(Expert) 24 April 2020
It is advisable to engage the services of some lawyer expert in dealing criminal cases.
The accused can face the trial and defend himself effectively. After filing of the chargesheet, your lawyer can examine the scope whether High court can be moved for quashing of the charges.
jaideep
(Querist) 24 April 2020
can the accused can be escaped from imprisonment if he successful proved that he is suffering from bipolar disorder due to which he have done such type of act and now his treatment is also going in govt city hospital and he his taking medication also for this
Raj Kumar Makkad
(Expert) 24 April 2020
1. As the complainant is ready for the compromise so it shall be better to make him ready to change his material statement regarding the identification of the accused. If this is done, the benefit of doubt shall go in favour of the accused and he shall get acquittal order.
Raj Kumar Makkad
(Expert) 24 April 2020
The plea of the disease if taken by the accused then the same is an admission of the offence which is dangerous in the present set of the facts. None can anticipate about the magistrate in the event of such admission and the possibility of some penalty or punishment cannot be ruled out and otherwise also the admission of the offence and the change of the statement of the complainant are two contradictory stands which cannot be taken at one time in a case.
Raj Kumar Makkad
(Expert) 24 April 2020
The allegations cannot be dropped without facing the trial of the case in the manner already discribed as above.
Rajendra K Goyal
(Expert) 25 April 2020
The defense of specific illness may not be beneficial, fetch desired results.
If the evidences are in favor i.e. does not prove the prosecution case, the same would be beneficial for the accused.
jaideep
(Querist) 25 April 2020
And if the applicant is ready to settle the matter i .e the public servant .is it possible that he can withdraw FIR ,is there any provision in the relevant Act to drop FIR and quashed the case
jaideep
(Querist) 25 April 2020
Second think is the Case is that......!
when the police called by the family member the police came and without asking the situation of the matter started beating the accused lots of lathi charge on the accused in self defence after saying again and again please listen to me first,police did not stop then hi pushed one of the police to run away from the situation......in this scenario we can quashed the section 353 of IPC
P. Venu
(Expert) 25 April 2020
The matter could be settled by the High Court under the provisions of Section 482 CrPC based on the stand of the de-facto complainant to 'forgive and forget'. The High Court may also take into consideration the alleged medical deficiency while deciding the issue.
Rajendra K Goyal
(Expert) 25 April 2020
Since section is non compoundable, it is difficult to settle the case at Magistrate level. Discuss in detail with your lawyer and can try quashing at High Court Level.
Rajendra K Goyal
(Expert) 25 April 2020
Sometime the actual story does not come before the court during the proceedings, only events / points to prove or in defense come before the court. First the prosecution proceedings have to be opposed, prosecution witness has to be crossed effectively, through an expert lawyer. It seems difficult that the police would come forward with claim regarding illness of the accused. During defense, the fact can be highlighted. From the given facts it seems the defense if is based on illness, it may not be of much benefit for the accused.
jaideep
(Querist) 25 April 2020
Applicant is ready to settle the case and he said i am not willing to proceed further and end litigation if there is any provision to do so and want to quashed FIR against the accused can in this case FIR can be quashed in section 482 of CrPC in HIGH COURT
Rajendra K Goyal
(Expert) 25 April 2020
For quashing of the FIR, respective High Court has to be moved.
Raj Kumar Makkad
(Expert) 25 April 2020
1. If the complainant is ready to make compromise with you then he can also change his statement while coming in the witness box as per the opinion of your lawyer. It can be got availed if the trial has reached to that stage otherwise the option of quashing petition under section 482 Criminal Procedure Code is always open for you on the basis of compromise.
Raj Kumar Makkad
(Expert) 25 April 2020
Section 353 IPC do not come in the way to settle the issue because after all the matter is of the personal nature. There are various judgments on this point which do support you.
Raj Kumar Makkad
(Expert) 25 April 2020
Punjab-Haryana High Court
Karamjit Singh And Ors vs State Of Punjab And Anr on 8 August, 2018
CRM-M-6597-2018 (O&M) - 1-
252 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-6597-2018(O&M)
Date of decision:08.08.2018
Karamjeet Singh and others ...Petitioners
Versus
State of Punjab and another ...Respondents
CORAM: HON'BLE MR. JUSTICE RAJBIR SEHRAWAT
Present: Mr. Jagmeet Singh Moudgill, Advocate, for the petitioners.
Mr. Rajat Bansal, AAG, Punjab.
Mr. Sukhmeet Singh, Advocate
for respondent No.2.
RAJBIR SEHRAWAT, J. (ORAL)
This petition under Section 482 of the Code of Criminal Procedure has been filed for quashing of FIR No.114 dated 20.07.2017 registered under Sections 353, 186, 332, 506, 427, 34 of the Indian Penal Code (for short 'the IPC'), at Police Station Dirba, District Sangrur and all consequential proceedings arising therefrom, on the basis of compromise dated 27.11.2017 (Annexure P-2).
Vide order dated 16.02.2018, the parties were directed to appear before the learned trial Court/Illaqa Magistrate, for getting their statements recorded; as to the genuineness of the compromise. In compliance thereof, report of Judicial Magistrate 1st Class, Sunam dated 05.03.2018, has been received, wherein, it has been noticed that the compromise arrived at between the parties is genuine, without any inducement, threat, promise, coercion or undue influence and none of the accused persons has been declared as proclaimed offender in this case.
The ultimate aim, objective and goal of a legal system is to 1 of 6 CRM-M-6597-2018 (O&M) - 2-
reconcile the social conflicts. Law is required only to ensure that people do not have to fight with each other just to protect their right to property, right to life and liberty and other rights secured to them by the legal system. The civil disputes are the conflicts between two parties, having lesser overtones for the social order, social harmony or the society as such. Hence absolute freedom is given to the parties to settle their disputes by compromises, of course, coming with certain legal consequences as well. However, the criminal disputes do not necessarily restrict themselves to only two parties to the dispute in terms of their scope, consequences and effect. The criminal acts tend to cast their effect and consequences even upon the society at large. Therefore, the law prescribes punishment, severe punishments and the extreme punishments, including death penalty for criminal acts.
However more often then not the civil disputes or inter-se conflicts of two parties transforms themselves into criminal aspect. Therefore, the legal system plays empire to resolve the conflict between two parties; with the added task of ensuring that the adverse impact of dispute qua society at large is minimized. But still the core idea is to resolve the conflict between two sides by putting it to rest. Therefore, even the criminal law is required to give due regard to the wishes of the parties to dispute. Recognizing this principle only, the Indian legal System also provides for recognizing the compromise between two sides of a criminal dispute. Section 320 Cr.P.C. is an express provision in this regard. This section not only provides for compounding during the trial, but permits compounding even at appellate or revisional stage. However by its very nature and scope, Section 320 Cr.P.C. cannot be the sole repository; wherein the recognition to a compromise between the parties have; necessarily; to be confined. This section relates only to the offences prescribed under the Indian Penal Code.
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There are a lot more offences prescribed outside IPC. Even to the offences existing in the IPC new dimensions are added from time to time, making the existing offences to be lighter or stringent and even new modalities of proof of offences are being recognised in view of technological advancement. This necessitates and requires the need for looking beyond Section 320 Cr.P.C. to recognise the compromise between the parties to dispute. But to maintain the sanctity of the procedure prescribed for criminal trial; the Trial Court cannot be permitted to travel beyond the scope prescribed under that procedure. Hence the need for invoking Section 482 Cr.P.C. by the High Court.
But, as observed above, the wishes of only parties to the criminal dispute would not always be sufficient to terminate a criminal trial in view of the patent, latent or subtle effect; their conduct would have left qua the society at large. Therefore the oftences committed by persons involved in governance or administration for acquiring official power or while exercising office power cannot be permitted to be compromised. Likewise, even the oftences involving only two private persons, but reflecting depravity of character or involving causing intentional loss of life or causing intentional loss of property by extending imminent threat of loss of life; cannot be permitted to be compromised. Except the abovementioned grave offences, there is every reason that all other offences should be permitted to be compromised by the Court. Since the proof of offences before the Court, again would involve the conduct of the parties to dispute, therefore if the Court does not permit the same to be compromised then the parties would tend to play tricks upon the Court to ensure the acquittal of accused by subverting the administration of criminal justice. And it is never in the interest of administration of criminal justice to force the citizen to learn and adopt the tricks designed to be played upon Courts to subvert the justice 3 of 6 CRM-M-6597-2018 (O&M) - 4-
system. So it would always be in the interest of justice itself; that the compromise between the parties is recognized and the citizen remain moored and committed to the essentials of the system of administration of justice, at least, qua those offences, which the interest of society does not permit to be compromised.
Although, the present FIR involves the offence punishable under Sections 186 and 353 of IPC for obstructing the public servant in performance of their duty and therefore, the learned State counsel has submitted that this could not be quashed, not being purely private matter of the official concerned. However, the argument of learned State counsel is not sustainable in law that the public servant does not have any independent capacity other than the personality of a public servant. Therefore, when the public servant in his personal capacity is seeking quashing of the FIR then the same cannot be denied simply because the offences involved obstruction in performance of duty by a public servant. In this regard, this Court finds support from the Division Bench judgment of this Court referred in Vinod @ Boda and others Versus State of Haryana and another-2017(1) R.C.R. (Criminal) 571. Hence, even the offence under Sections 186, 353 and 332 of IPC can be quashed on the basis of compromise.
Hon'ble the Supreme Court has amply clarified the legal position on recognizing compromising in the case of Gian Singh Vs. State of Punjab and another, 2012(4) RCR (Criminal) 543, and has observed as under:-
"57. The position that emerges from the above discussion can be summarised thus: 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.
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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. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, 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. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, 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 5 of 6 CRM-M-6597-2018 (O&M) - 6-
injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."
The present case does not fall in anyone of the exceptions envisaged above. Hence, in view of the report of Judicial Magistrate 1st Class, Sunam, dated 05.03.2018 made in pursuance of the order dated 16.02.2018 passed by this Court, the Court feels that no useful purpose would be served by keeping the proceedings alive. It will be in the interest of justice, if the settlement reached between the parties is accepted.
Accordingly, the present petition is allowed. FIR No.114 dated 20.07.2017 registered under Sections 353, 186, 332, 506, 427, 34 of IPC, at Police Station Dirba, District Sangrur and all consequential proceedings arising therefrom ,are hereby quashed qua the present petitioners.
(RAJBIR SEHRAWAT)
JUDGE
08.08.2018
hemlata
Whether speaking / reasoned : Yes No
Whether Reportable : Yes No
Raj Kumar Makkad
(Expert) 25 April 2020
The aforesaid judgment is fully applicable on the facts of your case. You may file petition before Hon'ble High Court.
P. Venu
(Expert) 25 April 2020
It is really disappointing that the Senior Expert of Highest Standing, Mr.Raj Kumar Makkad is suggesting to the author to get Streams of Justice polluted, that too, through a Police Official under the guise of compromise.
Yes, there are practical aspects of the procedure of the law that can accommodate compromise. But compromise could only be in respect of details not of values or principles.
jaideep
(Querist) 25 April 2020
when to file the case before Hon'ble High Court i mean what is the time limit to file the case before Hon'ble High Court we can file it even if it is pending before session court , Is lower court also have power to quash FIR if yes than under which section of CrPC please suggest
Raj Kumar Makkad
(Expert) 26 April 2020
The power to quashing vests only in High Court. Even if the case is at the trial stage or at the appellate stage before Sessions Judge, even then the quashing petition can be filed undeer section 482 Criminal Procedure Code. There is no limitation to file such petition as this is an extra-ordinary power of High Court.
Raj Kumar Makkad
(Expert) 26 April 2020
You have for the first time mentioned the Court of Sessions in your facts, Have you been convicted by trial Court and your case is pending at the level of sessions Court?
Raj Kumar Makkad
(Expert) 26 April 2020
Expert P. Venu!
With full respect, Can I ask a simple question whether I have instigated the author to reach to a compromise with the complainant or his sole question is to tell the procedure how to execute the compromise/settlement reached by him with the complainant who coincidentally is a police officer?
Had you gone through the referred judgment then you might have also known that now a days public officers in genuine cases especially in the sections mentioned above, can make settlement/compromise with the accused persons so that peaceful atmosphere may be maintained and the burden of the court may be got reduced. There are thousands of such judgments.
There is no ocassion for me to instigate any person to make a compromise with the police officer who is a complainant. Kindly also refer a Division Bench judgment mentioned in the aforementioned judgment which in turn is based upon a judgment of Apex Court of India. I can never think to disappoint you as I fully respect you.
What led you to make such bitter comments without going through the issue? If you require some more similar type of judgments, the same may also be provided.
jaideep
(Querist) 26 April 2020
No my friend is still not convicted in the session court i think first hearing may be in june 2020 i don't know exact date
jaideep
(Querist) 26 April 2020
NO sir not at all instigating, actually i am a Law student and i also hold a professional degree in commerce and handling various cases of Income Tax & Gst at ITAT level but after getting a bit knowledge through academic books and novel i developed keen interest in this domain other then my core area so i am helping the society in the matter of Insurance claim of sufferer , and other legal litigation.
Rajendra K Goyal
(Expert) 26 April 2020
It is good habit, initiative you are taking in helping others. Continue, good luck, wish all success in life.
jaideep
(Querist) 26 April 2020
Sir is not instigating me in any way he his simply suggesting the possible way of solutions, i will explain it with an example: suppose one of my client come to me in the matter how i can save my taxes on my income so my consultancy on that is not avoidance of tax its simply a better planning how to save tax through vise investment in sec.80C,D,G,GG,sec 54.......etc
Rajendra K Goyal
(Expert) 26 April 2020
Positive way, thinking, good wishes for that.
Dr J C Vashista
(Expert) 26 April 2020
Request the Trial court for a mediation and drop the proceeding as per the terms of settlement.
Otherwise move to High Court for quashing of FIR.
Raj Kumar Makkad
(Expert) 26 April 2020
After getting the detailed information, you can very well advise your friend in the matter under discussion.
jaideep
(Querist) 26 April 2020
Thanks a lot expert Raj Kumar Makkad and others for your contribution
Rajendra K Goyal
(Expert) 27 April 2020
You are welcome, may revert in case of further development, if any.
Raj Kumar Makkad
(Expert) 27 April 2020
You are most welcome Mr. Author. You may contact again in case of any legal advice.
SHIRISH PAWAR, 7738990900
(Expert) 25 April 2020
