The Bombay high court recently comprising of a bench of Justice AS Chandurkar, Justice Vinay Joshi and Justice NB Suryawanshi while dealing with the issue of exercise of discretion under Section 482 of CrPC that states that; nothing shall limit the powers of the High Court to prevent abuse of the process of any Court or otherwise to secure the ends of justice observed that Court may quash criminal proceedings post-conviction for a non-compoundable offence on settlement only in the rarest of rare cases. (Sau. Maya Sanjay Khandare v. State of Maharashtra)
Facts of the case
The accused was tried for having committed an offence punishable under Section 323 of the Indian penal Code i.e., voluntarily causing grievous hurt along with Section 354 for assault and Section 447 for criminal trespass under the Penal Code. During the pendency of the appeal, the accused and the informant arrived at a compromise and the said parties approached this Court under Section 482 of the Code especially in the backdrop of the fact that the offence under Section 354 of the Penal Code was non-compoundable.
The Division Bench at Aurangabad held that since the parties had decided to maintain good and cordial relations in future and such thought was necessary for the society, inherent powers under Section 482 of the Code were required to be invoked. Accordingly, the informant was permitted to compound all the offences including the one under Section 354 of the Penal Code.
Contention of the Parties
On behalf of the applicants, learned counsel submitted that there was no embargo on the exercise of jurisdiction under Section 482 of the Code to entertain such application for quashing of the criminal proceedings/conviction in view of the fact that an appeal challenging the order of conviction had the effect of continuation of the trial itself. If after conviction the convict and the informant found it fit to settle the disputes amongst themselves and the offences involved in the criminal proceedings were not serious in nature, such power could be invoked to put an end to the entire dispute.
The Public Prosecutor for the State of Maharashtra submitted that after conviction of an accused for commission of a non-compoundable offence if the parties arrive at any settlement the entire order of conviction was not liable to be set aside. At the most the sentence imposed on such accused could be suitably modified if the compromise was accepted. While exercising such power under Section 482 of the Code in view of settlement of disputes between the convict and the victim, the impact of acceptance of such settlement on the society as well as the victim should not be ignored. In view of the order of conviction passed after a full-fledged trial the accused should not be acquitted by virtue of settlement post-conviction. This would frustrate the entire exercise conducted during the trial and would also affect the deterrent theory which was necessary for maintaining a law abiding society. It would also encourage the accused to somehow seek to settle the dispute after the order of conviction and there was a possibility that the victim/complainant could be pressurized in doing so. Where the prosecution had ended in an order of conviction, the facts as well as the evidence on record would require examination before accepting a request of compromise.
Courts Observation & Judgment
The bench taking note of the submissions of the parties noted, “We have noted above the consistent line of decisions of the Hon’ble Supreme Court wherein it has been held in clear terms that settlement or compromise by itself cannot be a ground for setting aside conviction for a non-compoundable offence. In fact, even in offences that are of a private nature and not having a serious impact on society, the Hon’ble Supreme Court has maintained the conviction of the accused but has reduced the sentence as imposed. If jurisdiction was being exercised under Section 482 of the Code by this Court in some cases but such exercise of jurisdiction was not in accord with the law of the land such practice cannot be saved by applying the principle of stare decisis. While applying the said principle, binding precedents on this Court cannot be ignored or given a go-by lest it may result in not following the law of the land. The said submission therefore does not deserve acceptance.”
The bench dismissing the petition noted, “At the conclusion of the criminal trial the Court on finding the evidence on record led by the prosecution to be sufficient to prove the guilt of the accused would proceed to convict the accused. The remedy of challenging the order of conviction is available to the accused by way of an appeal. Any compromise entered into post-conviction for a non-compoundable offence cannot by itself result in acquittal of the accused. Similarly, the Court has no power to compound any offence that is non-compoundable and not permitted to be compounded under Section 320 of the Code.
The compromise entered into therefore is just a mitigating factor that can be taken into account while hearing the appeal/revision challenging the conviction and which factor has to be taken into consideration while imposing appropriate punishment/sentence. It is not permissible to set aside the judgment of conviction at the appellate/revisional stage only on the ground that the parties have entered into a compromise. In a given case the appellate Court/revisional Court also has the option of not accepting the compromise. Thus if the judgment of conviction cannot be set aside in an appeal/revision only on the ground that the parties have entered into a compromise similar result cannot be obtained in a proceeding under Section 482 of the Code”
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