# Gagan Pal Singh Ahuja & Anr v. State of U.P. & Anr

- **Citation:** (2023) 7 ILRA 961
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-26
- **Case number:** Application U/S 482. No. 1405 of 2023
- **Bench:** Rahul Chaturvedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gagan-pal-singh-ahuja-anr-v-state-of-u-p-anr-50659
- **Pages:** 16

## Headnote

Law-The
Code
of
Criminal
Procedure, 1973-Section 319 & 482---
Despite the fact that the parties have come to
terms and the opposite party has received the
amount to his satisfaction, in a clandestine
fashion, opposite party no.2 have managed to
move an application through Public Prosecutor,
for summoning the applicants in the exercise of
power under section 319--- 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--- the opposite party no.2 have
got some ulterior plans to extract more
money from the applicants by way of interest
and that is why, he has used the Public
Prosecutor but fact remains that since, he has
already entered into compromise and with the
specific understanding that after taking the
amount, he will not go to prosecute the
applicants in the aforesaid offence, still, he
has managed to obtain the favourable orders
which is liable to be set-aside. (Para 45)

Application allowed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,952 of 53,530. This is a partial read: ask again with offset=39952 for what follows._

7 All. Gagan Pal Singh Ahuja & Anr. Vs. State of U.P. & Anr.
961
Section 85 of the Act, 2002 and therefore,
for all practical purpose, the election,
which took place on 18.02.2020 and
19.02.2020, has attained finality.

41. Therefore, at this stage we would
like to add that in case there is any vacuum
or Cooperative Board fails to conduct the
election of the members of the Board, the
Central Registrar is empowered to hold the
election within the period of 90 days from
the date when such election became due, as
per Section 45 (6) of the Act, 2002.
Moreover, Rule 19 (1) of the Rules, 2002
also provides that the election of members
of the board shall be conducted by the
returning officer appointed by the board in
its meeting. It is also claimed that after the
election due information was sent to the
office of the Central Registrar and
therefore, at no stage there was any
situation of supersession of the Board of
Multi State Cooperative Society/Bank to
attract the provisions of Section 123 of the
Act, 2002.

42. In view of the foregoing
discussions, we are of the view that the
contentions raised by the petitioners are not
sustainable in law and accordingly, no
relief can be accorded to the petitioners. As
such, we are not inclined to exercise our
discretionary jurisdiction under Article 226
of Constitution of India.

43. Accordingly, the writ petition is
dismissed.
----------
(2023) 7 ILRA 961
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.05.2023

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.
Application U/S 482. No. 1405 of 2023

Gagan Pal Singh Ahuja & Anr.
 ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Hritudhwaj Pratap Sahi, Sri Sankalp
Narain, Sri Raghav Dev Garg, Sri Anurag
Khanna (Sr. Adv.)

Counsel for the Opposite Parties:
G.A., Sri Anurag Vajpeyi, Sri Padmaker
Pandey, Sri Manish Tiwary (Sr. Adv.)

Criminal
Law-The
Code
of
Criminal
Procedure, 1973-Section 319 & 482---
Despite the fact that the parties have come to
terms and the opposite party has received the
amount to his satisfaction, in a clandestine
fashion, opposite party no.2 have managed to
move an application through Public Prosecutor,
for summoning the applicants in the exercise of
power under section 319--- 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--- the opposite party no.2 have
got some ulterior plans to extract more
money from the applicants by way of interest
and that is why, he has used the Public
Prosecutor but fact remains that since, he has
already entered into compromise and with the
specific understanding that after taking the
amount, he will not go to prosecute the
applicants in the aforesaid offence, still, he
has managed to obtain the favourable orders
which is liable to be set-aside. (Para 45)

Application allowed. (E-15)

List of Cases cited:

1. Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai
Karmur & ors. Vs St. of Guj. & anr., reported in
(2017) 9 SCC 641
962 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Lovely Salhotra and anr Vs St., NCT, Delhi
(2017) SCC Online SC (636)

3. Vijay Kumar Gupta Vs St. Government of NCT
Delhi in Criminal Misc no.2289 of 2013 dated
09.03.2017

4. Jayraj Singh Digvijay Singh Rana Vs St. of
Guj. & anr.(2012) 12 SCC 401

5. Kapil Gupta Vs St. of NCT Delhi reported in
(2022) SCC Online SC 1030

6. Narender Singh Vs St. of Pun. (2014) 6 SCC
466

7. Shiji @ Pappu & ors. VS Radhika & anr.,
(2011) 10 SCC 705

8. Dimpey Gujral & ors. Vs Union Territory
through Administrator, U.T. Chandigarh & ors.,
(2013) 11 SCC 497

9. Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai
Karmur & ors. Vs St. of Guj. & anr., (2017) 9
SCC 641

10. Yogendra Yadav & ors.. Vs St. of Jharkhand
& anr.(2014) 9 SCC 653

11. B.S. Joshi & ors. Vs St. of Har. & anr.(2003)
4 SCC 675.

12. Hardeep Singh and anr Vs St. of Pun.
reported in AIR 2014 SC 1400

13. Kalyan Kumar Gogoi Vs Ashutosh Agnihotri
& anr., reported in AIR 2011 SC 760

14. Lal Suraj @ Suraj Singh & anr. Vs St. of
Jharkhand, reported in (2009) 2 SCC 696

(Delivered by Hon'ble Rahul Chaturvedi, J.)

[1] Heard Sri Anurag Khanna, learned
senior Advocate assisted by Sri Sankalp
Narain, Sri Raghav Dev Garg, learned
counsel for the applicant ; Sri Manish
Tiwary, learned Senior Counsel assisted by
Sri Anurag Vajpeyi, Sri Padmaker Pandey,
learned counsel for opposite party no.2 ; Sri
Ajay Kumar Sharma and Sri S.M.A. Faraz
Qazmi, learned counsel appearing for the
State and perused the records.

[2] Since, the pleadings between the
contesting parties have been exchanged and
as such, the matter is ripe for final
submissions. Invoking the plenary powers
of this Court under Section 482 Cr.P.C., the
prayer sought by the applicant is as follows
:-

"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 crime
no.0264 of 2018 under sections 420, 406,
7 All. Gagan Pal Singh Ahuja & Anr. Vs. State of U.P. & Anr.
963
467, 468, 471, 386, 389, 120B, 504 and
506 IPC registered in Police stationNazirabad, District-Kanpur Nagar and
quash the revisional order dated 16.12.2022
passed by learned Sessions' Court, Kanpur
Nagar whereby the revision which had
been preferred by the applicants against an
order dated 23.08.2022 passed by learned
Additional Chief Metropolitan Magistrate,
Court No.3, Kanpur Nagar under section
319
Cr.P.C.
has
been
allowed
and
summons have been issued against the
applicants
by
the
Additional
Chief
Metropolitan Magistrate, Kanpur Nagar
fixing date 22.11.2022 as the next date in
the aforesaid case.

[4] I have heard learned counsels for
the contesting parties at length to their
satisfaction. In order to appreciate the legal
issue involve, it is imperative to give a
bird's eye view to the factual matrix of the
case which has given rise to the present
controversy.

FACTUAL MATRIX:-

[5]

The
instant
482
Cr.P.C.
application has been preferred by Gagan
Pal Ahuja s/o Preet Pal Singh Ahuja and
his father Preet Pal Singh Ahuja s/o
Darshan Singh r/o House No.7, Silver
Mension, Silver Spring, Phase-I, Bypass
road,
Indore,
(M.P.)
challenging
the
aforesaid orders of learned Magistrate
dated 23.08.2022, as well as order of
confirmation by the learned Revisional
court dated 16.12.2022 passed by learned
Sessions Judge, Kanpur Nagar whereby
despite of the fact that the parties have
come to terms and the opposite party has
received the amount to his satisfaction, in a
clandestine fashion, opposite party no.2
have managed to move an application
through Public Prosecutor, for summoning
the applicants(who are non-accused) in the
exercise of power under section 319
Cr.P.C.

[6] Way back on 01.01.2015, a
partnership deed was executed comparising
of (I) Ms. Meeta Dua, w/o of Sonu Dua (ii)
Devendra Singh Dua(opposite party no.2)
(iii) Gagan Pal Singh Ahuja-applicant no.1
and one Jaspal Singh Ahuja as partner of
the partnership firm M/s A.K. Enterprises
having registered office at Shop No.33,
Kenal Market, Lajpat Nagar, Kanpur
Nagar. Preetpal Singh, applicant no.2 have
got no concern with the said partnership
firm, but for the best reasons known to
opposite party no.2, father of Gagan Pal
Singh Ahuja, has been unnecessarily
dragged in this offence.

[7] On 07.05.2015 and 10/12.06.2015,
a sale deed was allegedly executed 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 socalled 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-
964 INDIAN LAW REPORTS ALLAHABAD SERIES
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, Gagan
Pal Singh Ahuja, applicant no.1 himself has
lodged an FIR under section 420, 467, 468,
471, 406 IPC at Police Station-Agar,
District-Malwa, M.P. against Vikram Singh
Chauhan for the alleged act of cheating and
committing fraud against the applicant no.1
and his partnership firm. After the
investigation, on 15.05.2018, a charge sheet
was submitted by the Investigating Officer
for the case as C.S. No.93 on 15.05.2018
and Sri Vikram Singh Chauhan was
arrested by the M.P. Police.

[10] On the other hand, a first
Information Report bearing no.0246 of
2018 was lodged on 27.12.2018 by
opposite party no.2 at police stationNazirabad, Kanpur Nagar under section
420, 406, 467, 468, 471, 386, 389, 120B,
504, 506 IPC roping in Gagan Pal Singh
and his father Preet Pal Singh along with
Man Singh and Vikram Singh Chauhan. As
mentioned above, Preet Pal Singh was
roped in this case just because he was the
father of applicant no.1, though in fact, he
has got no concern with above transaction.

[11] At this juncture, when the
investigation
was
in
progress,
on
01.10.2019, in the presence of Gurdeep
Singh, Surjeet Singh, Sonu Dua and one
Saran Jeet Singh Gujral along with the
applicants met with the informant/opposite
party no.2 and persuaded him to settle
down the dispute outside the Court. After
clearing off all the misunderstandings
allegedly cropped upon between them and
thereafter a truce and compromise was
arrived with them. After being satisfied,
respondent no.2 entered into a compromise
and it was agreed upon the parties that the
applicants would pay a sum of Rs.67 lacs to
respondent no.2. After taking the amount, it
was also agreed that opposite party no.2
shall not proceed against the applicants in
case crime no.264 of 2018 in the light of
the compromise deed dated 04.10.2019 and
10.10.2019(Annexure-11 and 12 of the
petition). From Annexure-12, it is clear that
the applicant has extended 19 posted dated
cheques of different dates in favour of Ms.
Meeta Dua and Mr. Devendra Singh Dua
respectively whose details were given in
the compromise letter addressed to S.S.P.
Kanpur Nagar. It is interesting to point out
here that prior to this, a compromise deed
was signed by Meeta Dua, Devendra Singh
Dua and Gagan Pal Singh Ahuja in front of
the witnesses Sonu Dua and Saranjeet
Singh Gujral. It has been argued by learned
counsel for the applicant that as and when,
those 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
7 All. Gagan Pal Singh Ahuja & Anr. Vs. State of U.P. & Anr.
965
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
crossexamination, 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 the
compromise deed with the applicant out of
his own sweet will without any coercion or
threat upon him and (c) he has received 19
post dated cheques mentioned from serial
no.1 to 19 of the compromise deed to the
tune of Rs.67 lacs and all the cheques were
duly encashed in their respective account.
The relevant extracts of the testimony of
PW-1 Devendra Singh Dua is quoted
hereinbelow :-

" vkt fnukWd 06-12-2021 dks lk{kh
nsosUnz flag nqvk iq= Jh vehj flag l'kiFk i=
c;ku fd;k&

bl iwjs ekeys esa esjs o esjh cMh cgw
Jherh ehrk nqvk dk dqy 67 yk[k :i;k fuos'k
gqvk FkkA i=koyh esa layXu lqygukek ,oa
{kfriwfrZ ds dkxtkr ds laca/k esa lger gsrq i=
fnukWfdr 4-10-19 Ik 2 esa izFke i{k ds :i esa yxk
gqvk fp= esjk gS rFkk bl ij yxk gqvk fu'kkuh
vxwBWk Hkh esjk gSA bl le>kSrk i= ds ist 6 ds
iSjk 1 esa nh x;h 01 ykx;r 19 rd dh psds
leLr psdksa dk Hkqxrku gks x;k gSA vfHk;qDr
fodze flag ls esjk dksbZ le>kSrk ugha gqvk gSA
mldks 62 yk[k :i;s fn;s Fks mlus dksbZ Hkqxrku
ugha fd;k gSA

tehu ds ysu&nsu dh ckr o"kZ 2015
esa uoEcj ds vk[kjh lIrkg esa gqbZ FkhA ml tehu
dk eqvk;uk ml le; eSaus fd;k FkkA bu tehuksa
ds dkxtkr dh eSus tkWp djk;h FkhA bu tehuksa
ds Lokeh vusd Fks ftldk eq[rkjukek foods ds
ikl FkkA izhriky flag o xxuiky flag }kjk
dgk x;k fd dkxtkr ,dne lgh gS eSusa tkWp
dh gSA mudh ckr ij fo'okl djds eSus tehu
dk lkSnk fd;k FkkA

le;kHkko ds dkj.k ftjg LFkfxr dh
x;hA ftjg tkjh jgsA

[13] From the aforesaid, it is
explicitly clear that opposite party no.2 in
no uncertain terms have acknowledged the
receipt of Rs.67 lacs as a result of
compromise
dated
04.10.2019
and
10.10.2019 annexed as Annexure-11 and
12 respectively.

[14] It seems that opposite party no.2
has some different design in his mind and
that is why after, receiving the entire
outstanding amount of Rs.67 lacs in their
accounts, in order to harass the applicants,
in the sham criminal case, have persuaded
the Public Prosecutor to drag the applicants
in this offence with whom opposite party
no.2 has already have a truce. Out of blue
and without any anticipation to the
applicants, the Public Prosecutor Mr.
Sandeep Kumar Singh on 21.02.2022 has
filed an application under section 319
Cr.P.C. for adding the applicants as
accused of pending trial which has been
undergoing arising out of case crime
no.264 of 2018. This was unexpected move
on the part of the public prosecutor who
seems to be in the hand in glove with
opposite party no.2 as argued by learned
counsel for the applicants.

[15] Responding to this application,
the Additional Chief Judicial Magistrate,
Kanpur Nagar on 23.08.2022 has allowed
the said application moved by the Public
Prosecutor and have eventually summoned
Gagan Pal Singh Ahuja and his father Preet
Pal Singh Ahuja as an additional accused,
966 INDIAN LAW REPORTS ALLAHABAD SERIES
fixing 26.09.2022 as next date fixed, while
issuing the summons to the applicants. The
learned Additional C.M.M. Court No.3,
Kanpur Nagar have opined that :

voyksdu ls nf'kZr gS fd U;k;ky; esa
nkf[ky vkjksi i= esa ;g Li"V gS fd vfHk;qDr
fodze flag pkSgku rFkk xxuiky flag ds fo:}
U;k;ky; esa vkjksi i= nkf[ky fd;k x;k Fkk
rFkk xxuiky flag o izhriky flag dh dk;Zokgh
dks 'ks"k crk;k x;k gSA

foospd }kjk ipkZ frrEek 4 esa xxu
iky flag o izhriky flag dk lqygukek NfriwfrZ
Hkqxrku ds vk/kkj ij foospuk lekIr dh nh x;h
Fkh tcfd xokgksa ds c;kuks ls ;g Li"V gS fd
vijk/k xxuiky flag o izhriky ds }kjk fd;k
tkuk nf'kZr gSA lqygukek dj ysus ls
vfHk;qDrx.k dk vijk/k lekIr ugha gks tkrk gSA
vr% izkFkhZ dk izkFkZuk i= varxZr /kkjk 319
na0iz0la0 Lohdkj fd;s tkus ;ksX; gSA

[16] Sri Khanna, learned Senior
Counsel submits that this is the exclusive
and rare case of dishonesty whereby at one
hand, the opposite party have accepted the
total sum of Rs.67 lacs to his satisfaction
after entering into the said compromise, on
the other hand, he has instigated or made
arrangement through Public Prosecutor to
move an application to make the applicants
as an additional accused of pending trial in
exercise of power under section 319
Cr.P.C.

[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 :-

"voj U;k;ky; dh i=koyh ds
ifj'khyu ls ;g Hkh fofnr gksrk gS fd nsosUnz flag
nqvk] Jherh ehrk nqvk izFke i{k o xxuiky flag
vgwtk o tliky flag vgwtk iq=x.k izhriky flag
vgwtk o izhriky flag ds e/; ,d le>kSrk gqvk
gS] ftlesa mUgksaus ekuk gS fd eku flag o fodze
flag us dwVjfpr vfHkys[kksa ds vk/kkj ij nsosUnz flag
o ehrk nqvk ls 67]00]000@&:i;s dh csbekuh ,oa
/kks[kk/kM+h dh Fkh vkSj blds ,ot esa mUgksaus
67]00]000@&:i;s {kfriwfrZ ds :i esa nsuk Lohdkj
fd;k gSA Li"V gS fd Lo;a vfHk;qDrx.k xxuiky
flg o izhriky flag us Hkh izLrqr izdj.k esa ;g
ekuk gS fd mUgksus oknh nsosUnz flag nqvk o ehrk
nqvk ls /kks[kk/kM+h c csbekuh dh gSA lk{khx.k
ih0MCyw0 1 o 2 ds lk{; ls bl Lrj ij ;g
lkfcr gS fd vfHk;qDrx.k o muds lkfFk;ksa }kjk
dwVjfpr fodz; i= ds vk/kkj ij oknhi{k dks
vkfFkZd {kfr igqapk;h x;h gS rFkk muls /kks[kk/kMh
dh x;h gS] mUgsa /kedk;k x;k gS] mUgsa tku ls
ekjus dh /kedh nh x;h gS] xkyh xykSt dh x;h gS
rFkk mUgsa cykRdkj ds >wBs eqdnes esa Qalkus dh
/kedh nh x;h gSA rFkk oknh i{k ds
67]00]000@&:i;s gM+i fy;s x;s gSA vfHk;qDrx.k
}kjk dkfjr vijk/k /kkjk 320 na0iz0la0 ds vUrxZr
'keuh; izd`fr dk ugh gS] ,slh fLFkfr esa
vfHk;qDrx.k o oknh ds chp gq;s dfFkr le>kSrs dk
izLrqr okn ds rF;ksa ij dksbZ izHkko ugha iMrk gS
rFkk bl le>kSrs ds vk/kkj ij vfHk;qDrx.k dks
fopkj.k ls eqDr ugha fd;k tk ldrk gSA mijksDr
ifjizs{; esa voj U;k;ky; }kjk lk{khx.k ih0MCYwk0 1
o 2 ds lk{; ds vk/kkj ij vfHk;qDrx.k dks /kkjk
319 na0iz0la0 esa fopkj.k gsrq /kkjk 406] 420] 467]
468] 471] 386] 389] 504] 506 o 120 ch- Hkk0na0la0
esa vkgwr djus esa dksbZ fof/kd =qfV dkfjr ugha dh
x;h gSaA rnuqlkj izLrqr n.M fuxjkuh fujLr gksus
;ksX; gSA"

[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
7 All. Gagan Pal Singh Ahuja & Anr. Vs. State of U.P. & Anr.
967
that proceeding against the remaining coaccused 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 the total sum of
Rs.67 lacs and all the 19 post dated cheques
totalling to the aforesaid amount got
encashed and the amount has been credited
in the accounts of opposite party no.2 and
Ms. Meeta Dua. But in the remaining
paragraphs, the counsel for opposite party
no.2 has tried to draw some parallel
between the applicant no.1 and Vikram
Singh Chauhan. But there is no denial to
the fact that Rs.67 lacs were credited in the
account of opposite party no.2 as a result of
compromise between the parties arrived on
04.10.2019 and 10.10.2019.

[20] It has been submitted by learned
counsel for the applicant that courts below
were unmindful of the fact that there is
compromise between the parties which was
arrived at between them to their satisfaction
and the contesting parties were satisfied by
the said compromise. There was no
occasion or reason to file an application
under section 319 Cr.P.C. to summon the
applicant which was actually done by the
learned Chief Metropolitan Magistrate and
confirmed by the learned Revisional court.
Both are anti-thesis to each other and
cannot go hand-in-hand. Therefore, it could
be safely termed that the action on the part
of the Public Prosecutor was motivated one
to attain sinister motive.

[21] On aforesaid factual parameters,
learned counsel for opposite party no.2 Sri
Manish Tiwary, at the outset has raised his
submissions with regard to a partial
compromise between the parties and its
admissibility. Secondly, Sri Tiwary has
strenuously defended the orders of learned
Additional Chief Metropolitan Magistrate
dated 23.08.2022 and revisional order dated
16.12.2022 confirming the orders of
learned Additional Chief Metropolitan
Magistrate by making a mention that since
those
compromise
deed
were
never
produced during the trial and never
exhibited as a part of the evidence thus,
they would not fall within the ambit of
expression 'Evidence' as contemplated in
the
Hardeep
Singh's
Judgment
and
therefore, the said compromise cannot be
looked into.

[22] Let us deal with the every issue
one by one :-

(i)Permissibility
of
the
peacemeal compromise between the
parties

The compromise, in the modern
society, is the sine qua non of a harmony
and orderly behaviour. The sole of the
justice and if the power under section 482
Cr.P.C.
is
sued
to
enhance
such
compromise which, in turn, enhances the
social amity and reduces 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
968 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

[24] In this regard, learned counsel
for the applicants has cited the judgment of
Hon'ble the Apex Court to buttress his
contention
that
even
a
peacemeal
compromise is permissible under the law
exercising the inherent power of this Court
under section 482 Cr.P.C. In the case of
Lovely Salhotra and anr Vs. State, NCT,
Delhi (2017) SCC Online SC (636), it has
been opined by Hon'ble the Apex Court
that :-

"4. We have taken into account
the fact of the matter in question as it
appears to us that no cognizable offence is
made out against the appellant-herein. The
High Court was wrong in holding that the
F.I.R. cannot be quashed in part and it
ought to have appreciated the fact that the
appellants-herein cannot be allowed to
suffer on the basis of the complaint filed by
Respondent No.2- herein only on the
ground that the investigation against coaccused is still pending. It is pertinent to
note that the learned Magistrate has opined
that no offence is made out against co-
accused Nos.2, 3, 4 and 6 prima facie.

7. Accordingly, we set aside the
order of the High Court and quash the FIR
qua the appellants- herein."

[25] Similarly in the case of Vijay
Kumar Gupta Vs. State Government of
NCT Delhi in Criminal Misc no.2289 of
2013 dated 09.03.2017 in paragraph no.7
has observed that :

"7. Looking into the facts and
circumstances of the case and the fact that
the
petitioners
have
paid
the
loan/settlement amount to the Respondent
No.2
and
nothing
remains
to
be
adjudicated further, to remove the hurdle in
the personal life of the present petitioners
for leading better and peaceful life and to
meet the ends of justice, I deem it
appropriate to quash the FIR No.107/2003,
under Section 406/420/468/471 Indian
Penal Code, 1860,, registered at Police
Station - Parliament Street, Delhi qua
against the petitioners, namely Vijay
Kumar Gupta, Raj Kumar Sharma and
Vinod Chaudhary only to the extent of their
role in commission of the alleged offence."

[26] In the case of Jayraj Singh
Digvijay Singh Rana vs. State of Gujrat
and another reported in (2012) 12 SCC
401, Hon'ble Apex Court has held that :-

"The
only
question
for
consideration before this Court at this stage
is that inasmuch as all those offences are
not compoundable offences under Section
320 of the Code (except Section 420 of IPC
that too with the permission of the Court
before which any prosecution for such
7 All. Gagan Pal Singh Ahuja & Anr. Vs. State of U.P. & Anr.
969
offence 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 to quash the prosecution under
Section 482 CrPC on the other. While a
court trying an accused or hearing an
appeal against conviction, may not be
competent to permit compounding of an
offence based on a settlement arrived at
between the parties in cases where the
offences are not compoundable under
Section 320, the High Court may quash the
prosecution even in cases where the
offences with which the accused stand
charged
are
non-compoundable.
The
inherent powers of the High Court under
Section 482 CrPC are not for that purpose
controlled by Section 320 CrPC. Having
said so, we must hasten to add that the
plenitude of the power under Section
482 CrPC by itself, makes it obligatory for
the High Court to exercise the same with
utmost care and caution. The width and the
nature of the power itself demands that its
exercise is sparing 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.
It is neither necessary nor proper for us to
enumerate the situations in which the
exercise of power under Section 482 may
be justified. All that we need to say is that
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. The High
Court may be justified in declining
interference if it is called upon to
appreciate evidence for it cannot assume
the role of an appellate court while dealing
with a petition under Section 482 of the
Criminal Procedure Code. Subject to the
above, the High Court will have to consider
the facts and circumstances of each case to
determine whether it is a fit case in which
the inherent powers may be invoked."

9) On going through the factual
details, earlier decision, various offences
under Section
320 of
the
Code
and
invocation of Section 482 of the Code, we
fully concur with the said conclusion. In the
case on hand, irrespective of the earlier
dispute between Respondent No. 2- the
complainant and the appellant being
Accused No. 3 as well as Accused Nos. 1
and 2 subsequently and after getting all the
materials, relevant details etc., the present
appellant (Accused No. 3) sworn an
affidavit with bona fide intention securing
970 INDIAN LAW REPORTS ALLAHABAD SERIES
the right, title and interest in favour of
Respondent No.2 herein-the Complainant.
In such bona fide 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 agree and they have entered into a
compromise even in the proceeding of
Section 376 IPC could be invoked and
proceeding may be quashed depending
upon the stage of trial with regard to the
heinous offences like rape, have expressed
his opinion in the case of Kapil Gupta Vs.
State of NCT Delhi reported in (2022)
SCC Online SC 1030 while relying upon
the judgment of Narender Singh Vs. State
of Punjab reported in (2014) 6 SCC 466
have expanded the scope of Section 482
Cr.P.C. paragraph no.13 and 14 of Kapil
Gupta's case is extracted hereinbelow :-

13. It can thus be seen that this
Court has clearly held that though the
Court should be slow in quashing the
proceedings wherein heinous and serious
offences are involved, the High Court is not
foreclosed from examining as to whether
there exists material for incorporation of
such an offence or as to whether there is
sufficient evidence which if proved would
lead to proving the charge for the offence
charged with. The Court has also to take
into consideration as to whether the
settlement between the parties is going to
result into harmony between them which
may improve their mutual relationship.

14. The Court has further held
that it is also relevant to consider as to
what is stage of the proceedings. It has
been observed that if an application is
made at a belated stage wherein the
evidence has been led and the matter is at
the stage of arguments or judgment, the
Court should be slow to exercise the power
to quash the proceedings. However, if such
an application is made at an initial stage
before commencement of trial, the said
factor will weigh with the court in
exercising its power."

Thus,
deciding
whether
to
exercise its power in the heinous offence
like rape under section 482 of the Code,
timings of settlement plays a crucial role.
Those cases where the settlement is
arrived at immediately after the alleged
commission of the offence and the matter
is still under investigation, the High
Court may be liberal in accepting the
settlement
to
quash
the
criminal
proceeding/investigation. It is because of
the reason that at this stage, the
7 All. Gagan Pal Singh Ahuja & Anr. Vs. State of U.P. & Anr.
971
investigation is still on and even the
charge sheet has not been filed.

[28] Thus, comparing the aforesaid
ratio by Hon'ble the Apex Court whereby
the court has accorded his permission to
have a peace meal compromise meaning
thereby a part compromise with certain
accused persons, I have got 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 tittma 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 641 (iv)Yogendra Yadav and Ors. Vs.
State of Jharkhand and another (2014) 9
SCC 653 (v)B.S. Joshi and others Vs.
State of Haryana and another (2003) 4
SCC 675.

[31] Taking the ratio in the
aforementioned judgment, the findings
recorded by the A.C.M.M, Kanpur Nagar,
is in the stark contrast with the aforesaid
findings.

[32] 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 unswolloable and
cannot be accepted. As mentioned above,
the scope and ambit of Section 482 Cr.P.C.
is in much wider than that of Section 320
Cr.P.C. In the aforementioned judgments,
this Court has already discussed elaborately
which need not reiterated and thus, both the
judgments and orders passed by the learned
A.C.M.M. Kanpur Nagar and learned
Revisional Court are the direct conflict of
the aforesaid ratio of the case decided by
Hon'ble the Apex Court and liable to be
set-aside

(ii)
Expression
of
word
'Evidence' in Section 319 Cr.P.C.

[33] Since, the focal issue of this 482
application is the alleged two orders dated
23.08.2022 and 16.12.2022 passed by the
learned A.C.M.M-III, Kanpur Nagar and its
order of confirmation by learned Sessions
Judge, Kanpur Nagar respectively. In this
regard, it is imperative to spell out the bare
skeleton provision of Section 319 Cr.P.C.
which reads thus :-

Section 319 in The Code Of
Criminal Procedure, 1973
972 INDIAN LAW REPORTS ALLAHABAD SERIES

319. Power to proceed against
other persons appearing to be guilty of
offence.

(1) Where, in the course of any
inquiry into, or trial of, an offence, it
appears from the evidence that any person
not being the accused has committed any
offence for which such person could be
tried together with the accused, the Court
may proceed against such person for the
offence
which
he
appears
to
have
committed.

(2) Where such person is not
attending the Court, he may be arrested or
summoned, as the circumstances of the
case
may
require,
for
the
purpose
aforesaid.

(3)Any
person
attending
the
Court, although not under arrest or upon a
summons, may be detained by such Court
for the purpose of the inquiry into, or trial
of, the offence which he appears to have
committed.

(4)Where the 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 crossexamination
mentioned
in
aforesaid
paragraph no.12. On this, he states that
even assuming for the sake of the
arguments that there is a compromise
between the parties but since the said
compromise
is
not
exhibited
and
therefore it cannot be read or looked into
as a piece of evidence, its content cannot
be relied upon.

[35] Hon'ble the Supreme Court has
an occasion to deal and decide the
expression 'Evidence' in its celebrated
judgment of Hardeep Singh and anr Vs.
State of Punjab reported in AIR 2014 SC
1400 . The Court has formulated the
question :-

* "Whether the word 'Evidence'
used in Section 319(1) Cr.P.C. could only
mean evidence tested by cross-examination
or the Court can exercise the powers under
the said provision even on the basis of
statements made in examination-in-chief of
the witness concerned ?

** "Whether the word 'Evidence'
used in Section 319(1) Cr.P.C. has been
used in a comprehensive sense collected
during investigation or the word 'Evidence'
7 All. Gagan Pal Singh Ahuja & Anr. Vs. State of U.P.