Unknown vs Narayanamma
2023 Latest Caselaw 3685 AP

         HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

                    I.A. Nos.2, 3 & 4 OF 2023
                                 IN
                      Crl.A. No.268 OF 2009

COMMON ORDER:

      Interlocutory Application No.2 of 2023 is filed by the

petitioners namely Jutta Sambaiah, S/o. J. Appa Rao and Jutta

Narayanamma, W/o. J. Appa Rao to implead them as respondent

Nos.2 and 3 in Criminal Appeal No.268 of 2009 and connected

Interlocutory Applications.

2. I.A. No.3 of 2023 is filed by the petitioners namely Jutta

Sambaiah and Jutta Narayanamma to record compromise and

acquit the appellants/A-1 and A-3 to A-5 in Criminal Appeal

No.268 of 2009 in view of the settlement arrived at between the

parties after setting-aside the judgment, dated 27.02.2009, passed

in S.C. No.7 of 2007 by the learned V Additional District and

Sessions Judge (FTC), Guntur (for short, „the learned Additional

Sessions Judge‟).

3. I.A. No.4 of 2023 is filed by the petitioners/appellant Nos.1

and 3 to 5 i.e., A-1 and A-3 to A-5 to grant necessary permission

to the parties in Criminal Appeal No.268 of 2009 to compound the

offences and consequently set-aside the sentence and judgment,

AVRB,J IA Nos.2, 3 & 4/2023 in Crl.A No.268/2009

dated 27.02.2009, passed in S.C. No.7 of 2007 by the learned

Additional Sessions Judge.

4. I.A. Nos.2 & 3 of 2023 are filed by Sri Penumaka Venkata

Rao, learned counsel for the petitioners/proposed respondent

Nos.2 and 3, and I.A. No.4 of 2023 is filed by Sri Gulipali Suraj,

learned counsel for the petitioners/appellants.

5. The case of the petitioners, in brief, insofar as I.A. No.2 of

2023, is concerned, is that the respondent Nos.2 to 6 herein i.e.,

the appellants were convicted and sentenced to undergo Rigorous

Imprisonment under Sections 304-B and 498-A IPC by the learned

Additional Sessions Judge in S.C. No.7 of 2007. The first petitioner

herein is the de-facto complainant and brother of the deceased,

who was examined as PW.1 and 2nd petitioner herein is the mother

of the deceased, who was examined as PW.4, before the trial Court

respectively. The appellants filed the present Appeal challenging

the conviction and sentence, which is pending. As per the advice of

the elders and in view of the close family relations, the matter was

settled out of the Court. The petitioners are inclined to compound

the offences and to that extent a compromise memo and affidavit

are filed which may be read as part and parcel of this Appeal.

AVRB,J IA Nos.2, 3 & 4/2023 in Crl.A No.268/2009

Hence, they are necessary and proper parties as such they may be

impleaded.

6. Insofar as I.A. No.3 of 2023 is concerned, the case of the

petitioners is that the 1st petitioner lodged a report against the

accused Nos.1 to 5 in Crime No.99 of 2006 of Ponnur Town Police

Station, Guntur District for the offences under Sections 304-A,

498-A IPC and Section 4 of the Dowry Prohibition Act, 1961 (for

short, „the DP Act‟) which was registered and investigated into and

a charge sheet was filed. It was taken on file and was committed to

the Court of Sessions. The Court of Sessions got numbered it as

Sessions Case No.7 of 2007 and made over to the trial Court for

disposal in accordance with law. Charges were framed against the

accused for the aforesaid offences and after conclusion of the trial,

the accused were convicted. The first appellant was convicted

under Sections 304-B and 498-A IPC and was sentenced to

undergo RI for 7 and 2 years respectively of the charges. Appellant

Nos.2 to 5 were convicted for the offence under Section 498-A IPC

and they were sentenced to undergo RI for 2 years. However, all

the accused were acquitted of the charges under Section 4 of the

DP Act. Aggrieved thereby, all the accused therein filed the present

Criminal Appeal, which is pending.

AVRB,J IA Nos.2, 3 & 4/2023 in Crl.A No.268/2009

7. Accused, deceased and the petitioners in I.A. Nos.2 & 3 of

2023 are relatives. They are closely related. A-1 and the deceased

were blessed with one male and female child respectively and A-1

is taking care of his children. In view of the close family relation,

elders advised them to settle the dispute amicably as such they

are ready and willing to settle the dispute. In view of the principles

laid down by the Hon‟ble Apex Court in Gian Singh v. State of

Punjab and another1, the High Court has power to compound the

offence of non-compoundable offence under Section 482 Cr.P.C.

Hence, these Petitions.

8. Insofar as I.A. No.4 of 2023 is concerned, it is filed by the

petitioners/appellants in the cause title by showing the 2nd

petitioner/appellant as died. Their contention is that challenging

the conviction and sentence in S.C. No.7 of 2007, dated

27.02.2009, they filed the Appeal which is pending and the

proposed respondent Nos.2 and 3 herein namely Jutta Sambaiah

and Jutta Narayanamma are willing to compound the offences and

in view of the decision of the Hon‟ble Apex Court in Gian Singh,

permission may be granted to compound the offences and

1 (2012) 10 SCC 303

AVRB,J IA Nos.2, 3 & 4/2023 in Crl.A No.268/2009

consequently to set-aside the sentence and judgment in S.C. No.7

of 2007, dated 27.02.2009.

9. Interlocutory Application No.2 of 2023 is filed by showing

the provision of law as Section 482 Cr.P.C. I.A. No.3 of 2023 is

filed by showing the provision of law Section 482 R/w.320(2)

Cr.P.C. and I.A. No.4 of 2023 is filed by showing the provision of

law as Section 320(6) R/w.482 Cr.P.C.

10. Now the point that arises for consideration is whether the

petitioners are entitled to the reliefs as prayed for in these three

Interlocutory Applications?

11. POINT: Sri Posani Venkateswarlu, learned Senior Counsel,

appearing on behalf of the petitioners, would submit that in view

of the principles laid down by the Hon‟ble Apex Court in Gian

Singh, the prayer of the petitioners is maintainable. The Hon‟ble

Apex Court gave some of the exceptions from the purview of the

said judgment i.e., regarding the heinous offences but the offences

arising out of matrimony relating to dowry etc., can be quashed.

He would further submit that insofar as appellant Nos.3 to 5 are

concerned, the Court below found them guilty of the offence under

Section 498-A IPC and in view of the AP State amendment the

AVRB,J IA Nos.2, 3 & 4/2023 in Crl.A No.268/2009

offence against appellant Nos.3 to 5 is compoundable and insofar

as the offences alleged against the 1st appellant are concerned, in

view of the principles laid down by the Hon‟ble Apex Court in Gian

Singh, the Court can quash the proceedings so as to acquit the 1st

appellant also of the charges under Sections 304-B and 498-A IPC.

Learned Senior Counsel, in support of his contentions, relied on

the decision of the High Court of Delhi in Javed Alam @ Soni v.

The State (Govt. of NCT of Delhi) and another2, a decision of

the High Court of Karnataka in Naveen Reddy C and another v.

State and others3, a decision of the High Court of Kerala in

Shafeek Hajiyarakath v. State of Kerala4, a decision of the

Hon‟ble Apex Court in Gian Singh (1st supra) and a decision of

High Court of Rajasthan in Badra and another v. State of

Rajasthan5.

12. Sri Y. Jagadeeswara Rao, learned Special Assistant,

representing learned Public Prosecutor, would contend that the

trial Court on analyzation of the evidence on record found the 1st

appellant guilty of the charges under Sections 304-B and 498-A

IPC and further found the appellant Nos.2 to 5 guilty of the charge

2 2016 SCC OnLine Del.506 3 LAWS(KAR)-2016-10-99 4 2013 SCC OnLine Ker.17773 5 2016 SCC OnLine Raj.5763

AVRB,J IA Nos.2, 3 & 4/2023 in Crl.A No.268/2009

under Section 498-A IPC. Insofar as Section 498-A IPC is

concerned, this Court has power to compound the offence, if the

Court feels that the compounding is voluntary and insofar as the

prayer of the petitioners/appellants in I.A. No.4 of 2023 and the

prayer of the petitioners/proposed respondents in I.A. No.3 of

2023 is concerned, now the case is not in quashing stage. Entire

trial was conducted and after analyzation of the evidence only the

accused were found guilty as such, at this stage, the question of

quashing does not arise and further the offence under Section

304-B IPC is non compoundable as such he seeks to dismiss the

Petitions insofar as the 1st appellant is concerned.

13. Before going to deal with the issue, this Court would like to

make it clear that there is no dispute that the 1st petitioner in I.A.

Nos.2 and 3 of 2023 is the person who was arrayed as de-facto

complainant who gave the evidence. There is no dispute that the

petitioners in I.A. Nos.2 and 3 of 2023 gave evidence before the

trial Court. The de-facto complainant need not be a party to the

Criminal Appeal. Before the trial Courts a de-facto complainant

can certainly move an application for compounding if the offence is

compoundable and for that purpose there is no practice that the

de-facto complainant will have to be impleaded as party to the

AVRB,J IA Nos.2, 3 & 4/2023 in Crl.A No.268/2009

Case because the name of the de-facto complainant used to be

mentioned as a witness. Considering the same, the prayer of the

petitioners in I.A. No.2 of 2023 to implead them as respondents,

deserves no merit as such it is liable to be dismissed.

14. Insofar as I.A. Nos.3 and 4 are concerned, the result of I.A.

No.2 of 2023 will have no impact on I.A. Nos.3 and 4 of 2023. Now,

undoubtedly, insofar as the offence under Section 304-B IPC is

concerned, it is a dowry death and it is non-compoundable. The 1st

appellant faced charges under Sections 304-B and 498-A IPC and

the trial Court found him guilty of both the charges, convicted and

sentenced him as above. Challenging the same, he filed the

present Appeal along with appellant Nos.2 to 5. Appellant Nos.2 to

5 were convicted under Section 498-A IPC alone. However, during

pendency of the Appeal, 2nd appellant died. So, insofar as the

appellant Nos.3 to 5 herein are concerned, they were convicted

under Section 498-A IPC, which offence in view of the AP State

amendment to Section 320 Cr.P.C is compoundable. According to

the said amendment, compounding is to be made by the woman

who was subjected to cruelty. Here, admittedly, the deceased is no

more. So, the de-facto complainant i.e., the 1st petitioner lodged a

police report which was the basis for the Police to register the FIR.

AVRB,J IA Nos.2, 3 & 4/2023 in Crl.A No.268/2009

So, the offence under Section 304-B IPC is non-compoundable and

offence under Section 498-A IPC is compoundable. Compounding

is to be made with the woman who is subjected to cruelty but the

woman (victim) is no more and PW.1 before the trial Court i.e., the

1st petitioner is the de-facto complainant.

15. Now, necessarily the Court has to look into the legal position

as to whether the prayer of the petitioners is tenable, especially

when Appeal is pending against conviction under Sections 304-B

and 498-A IPC.

16. Turning to the decision of the High Court of Delhi in Javed

Alam @ Soni (2nd supra), the High Court of Delhi dealt with a

situation where a petition came up to quash the FIR No.143 of

2006 registered for the offences under Sections 498-A and 304-B

R/w.34 of IPC. The Delhi High Court relying upon the decision of

the Hon‟ble Apex Court in Gian Singh (1st supra) and looking into

the fact that the subject matter stands mutually and amicably

settled between the parties held that continuation of the

proceedings out of the FIR would be an exercise in futility because

the parties have entered into a compromise as such quashed the

FIR and the proceedings emanated there from.

AVRB,J IA Nos.2, 3 & 4/2023 in Crl.A No.268/2009

17. Turning to the decision of the High Court of Karnataka in

Naveen Reddy (3rd supra), where FIR was registered under

Sections 306, 498-A and 304-B R/w.34 IPC and Sections 3 and 4

of the DP Act. Later the parties have arrived at a settlement.

Because the offences are non-compoundable in nature, they

approached Karnataka High Court to quash the proceedings. The

Karnataka High Court looking into the decision of the Hon‟ble

Apex Court in Gian Singh (1st supra), quashed the proceedings in

S.C. No.455 of 2013, which was pending by then.

18. Turning to the decision of High Court of Kerala in Shafeek

Hajiyarakath (4th supra), a petition was filed before the High

Court of Kerala under Section 482 Cr.P.C to quash the FIR in

Crime No.48 of 2012 registered for the offences under Sections

498-A R/w.34 of IPC and also under Sections 406 and 304-B IPC

as the matter was settled out of Court. The Kerala High Court

looking into the guidelines of the Hon‟ble Apex Court in Gian

Singh (1st supra), granted quashing of the Crime No.48 of 2012 of

Tanur Police Station, Malappuram District and all further

proceedings thereto.

AVRB,J IA Nos.2, 3 & 4/2023 in Crl.A No.268/2009

19. Turning to the decision of the High Court of Rajasthan in

Badra (5th supra), it is a case where the appellants faced trial

before the trial Court under Sections 304-B and 498-A IPC. They

were acquitted of the charge under Section 304-B IPC but were

convicted under Section 498-A IPC. During pendency of that

Appeal, it was contended that a compromise petition was also filed

before the trial Court to compound the offence under Section

498-A IPC but as it was not compoundable, the trial Court did not

look into the same. However, challenging the judgment of

conviction under Section 498-A IPC, the Appeal came to be filed

before the High Court of Rajasthan, wherein the Rajasthan High

Court looking into the decision of the Hon‟ble Apex Court in Gian

Singh (1st supra), was of the view that the compromise petition

was not verified by the trial Court. The Rajasthan High Court held

that there was a compromise petition but it was not taken into

consideration and further the trial was also conducted for the

heinous offences under Sections 304-B and 306 IPC and

ultimately modified the sentence of imprisonment to that of the

appellants already undergone.

20. Turning to the decision in Gian Singh (1st supra), the

Hon‟ble Apex Court dealt with the powers of the High Courts

AVRB,J IA Nos.2, 3 & 4/2023 in Crl.A No.268/2009

under Section 482 Cr.P.C. For better appreciation, it is pertinent

to look into the Para wise observation of the Hon‟ble Apex Court in

Gian Singh (1st supra). At Para No.57, the Hon‟ble Apex Court in

Gian Singh (1st supra) held as follows:

"57. Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a court Under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment."

21. At Para No.58, the Hon‟ble Apex Court in Gian Singh (1st

supra) held as follows:

"58. Where High Court quashes a criminal proceeding having regard to the fact that dispute between the offender and victim has been settled although offences are not compoundable, it does so as in its opinion, continuation of

AVRB,J IA Nos.2, 3 & 4/2023 in Crl.A No.268/2009

criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrongdoing that seriously endangers and threatens the well-being of the society and it is not safe to leave the crime-doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without the permission of the Court. In respect of serious offences like murder, rape, dacoity, etc., or other offences of mental depravity under Indian Penal Code or offences of moral turpitude under special statutes, like Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between the offender and victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to victim and the offender and victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or F.I.R if it is satisfied that on the face of such settlement, there is hardly any likelihood of offender being convicted and by not quashing the criminal proceedings, justice shall be casualty

AVRB,J IA Nos.2, 3 & 4/2023 in Crl.A No.268/2009

and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard and fast category can be prescribed."

22. At Para No.61, the Hon‟ble Apex Court in Gian Singh (1st

supra) held as follows:

"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. 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

AVRB,J IA Nos.2, 3 & 4/2023 in Crl.A No.268/2009

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 the 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 the accused to great oppression and prejudice and extreme 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 the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."

AVRB,J IA Nos.2, 3 & 4/2023 in Crl.A No.268/2009

23. Now, coming to the present case on hand, it is a case where

the learned Additional Sessions Judge, conducted trial and after

conclusion of the trial, considering the evidence available on

record, found guilty of the 1st appellant under Sections 304-B and

498-A IPC and found guilty of the appellant Nos.2 to 5 under

Section 498-A IPC (A-2 died during pendency of the Criminal

Appeal). The Hon‟ble Apex Court in Gian Singh (1st supra),

categorically held that compounding of offence under Section 320

Cr.P.C should be in accordance with that provision only. Further,

the Hon‟ble Apex Court categorically held that inherent powers of

the High Courts under Section 482 Cr.P.C are totally a different

provision from that of Section 320 of Cr.P.C. The Hon‟ble Apex

Court categorically held that inherent power has to be exercised in

accordance with the guidelines i.e., to secure the ends of justice or

to prevent the abuse of process of any Court. The Hon‟ble Apex

Court further held in what cases power to quash the criminal

proceedings or the complaint or FIR may be exercised where the

offender and the victim have settled the disputes, would depend

upon the facts and circumstances of each case. So, it is very clear

that exercising the power under Section 482 Cr.P.C to quash the

AVRB,J IA Nos.2, 3 & 4/2023 in Crl.A No.268/2009

FIR or the criminal proceedings have nothing to do with

compounding of the offences.

24. In other words, as of now, there is no FIR under

investigation and even the proceedings before the trial Court were

already over. Appellants suffered with adverse findings as such

they filed the Appeal. The Hon‟ble Apex Court in Gian Singh (1st

supra) dealt with the inherent powers of the High Courts to quash

the FIR and criminal proceedings in view of the settlement arrived

at.

25. Having regard to the above as the 1st appellant already

suffered with conviction under Sections 304-B and 498-A IPC,

which is under challenge in this Appeal, there is no question of

exercising the powers under Section 482 Cr.P.C in the Appeal to

quash either the FIR or the proceedings in S.C. No.7 of 2007

which were already over. Apart from this, now, in view of the

decision of the Hon‟ble Apex Court in Gian Singh (1st supra), as

referred to above at Para No.60, compounding of offence if the

offence is compoundable can be made. If a person otherwise

competent to compound an offence is dead, his legal

representatives may also compound the offence with the

AVRB,J IA Nos.2, 3 & 4/2023 in Crl.A No.268/2009

permission of the Court. So, as pointed out, insofar as conviction

under Section 498-A IPC against A-3 to A-5 is concerned, it can be

done as it is a compoundable offence. Now, in view of the AP State

amendment provided, the Court should allow waiting period of 90

days from the date of application.

26. 1st appellant suffered with conviction under Sections 304-B

and 498-A IPC. The allegations under Sections 304-B and 498-A

IPC against the 1st appellant are concerned, they are not separable

and they are interlinked with each other. For the offence under

Section 304-B IPC, prosecution alleged cruelty also against A-1.

So, insofar as the 1st appellant is concerned, the offence under

Section 304-B IPC is non-compoundable and further the offence

under Section 498-A IPC is connected with 304-B IPC. So,

undoubtedly, appellant No.1 is not entitled to any relief. The

decisions relied upon by learned Senior Counsel are of no use to

compound the offence under Section 304-B IPC. This Court is not

dealing with any situation to quash any FIR or the criminal

proceedings pending.

In the result, Interlocutory Application No.2 of 2023 is

dismissed. Insofar as Interlocutory Application Nos.3 and 4 of

AVRB,J IA Nos.2, 3 & 4/2023 in Crl.A No.268/2009

2023 are concerned, permission is accorded to the appellant Nos.3

to 5 to compound the offence under Section 498-A IPC with a

direction that minimum period of three (3) months shall elapse

from the date of the Application for compromise and the Registry

shall list their request immediately after three (3) months from the

date of filing I.A. Nos.3 and 4 of 2023. I.A. Nos.3 and 4, insofar as

1st appellant is concerned, are dismissed.

________________________________ JUSTICE A.V.RAVINDRA BABU Date: 25.07.2023 DSH