Andhra Pradesh High Court - Amravati

Govada Sekhar vs The State Of A.P. on 10 November, 2023

Bench: V Srinivas

               THE HON'BLE SRI JUSTICE V.SRINIVAS

                   I.A.NO.2 & 3 of 2023
                         IN/AND
         CRIMINAL REVISION CASE No.1212 of 2009



COMMON ORDER:

      Assailing the judgment dated 20.07.2009 in Crl.A.No.166

of 2007 on the file of Court of learned I Additional District &

Sessions Judge, Krishna at Machilipatnam, confirming the

conviction and sentence imposed by the judgment dated

14.12.2007 in S.C.No.104 of 2007 on the file of Court of learned

Assistant Session Judge, Gudivada for the offence under section

354 of IPC and set aside the said judgment in respect of the

conviction and sentence imposed for the offence under Section

375 r/w.511 of IPC, the petitioner/accused filed the present

criminal revision case under Section 397 r/w.401 of the

Criminal     Procedure   Code,   1973   (hereinafter   referred   as

"Cr.P.C.")

2.    The revision case was admitted on 24.07.2009 and the

sentence of imprisonment was suspended.

3.    Pending criminal revision case, I.A.Nos.1, 2 and 3 of 2023

were filed by the petitioner and defacto-complainant.
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4.     The petitioner was arrayed as accused in Cr.No.108 of

2006 of Mandavalli Police Station for the offences under Section

354 and 376 r/w.511 of IPC and police laid the charge sheet

and thereafter the case was committed to the Court of Sessions,

vide P.R.C.No.6 of 2007, and numbered as S.C.No.104 of 2007

on the file of Court of learned Assistant Sessions Judge,

Gudivada and the trial was conducted and found the accused

guilty for the charges under Section 354 and 376 r/w.511 of IPC

and sentenced to undergo rigorous imprisonment for five (5)

years and also pay a fine of Rs.1,000/- for the charge under

section 354 IPC, in default, suffer simple imprisonment for two

(2)   months   and    also   sentenced    to   undergo    rigorous

imprisonment for five (5) years and also pay a fine of Rs.500/-

for the charge under section 376 r/w.511 of IPC, in default,

suffer simple imprisonment for one month. The accused is

entitled to set off for the period already undergone by him, if any

under Section 428 of Cr.P.C. The fine amount if paid by the

accused of Rs.1,500/- be paid to P.W.1 as compensation under

Section 357 of Cr.P.C., after expiry of appeal time.

5.    Aggrieved by the said conviction and sentence imposed by

the Trial Court, the petitioner/accused filed an appeal, vide

Crl.A.No.166 of 2007, before the Court of learned I Additional
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District and Sessions Judge, Krishna at Machilipatnam and the

first Appellate Court allowed the said appeal in part as follows:

      "The accused found not guilty for the offence under
      Section 376 r/w.511 IPC and he is acquitted under
      section 235 Cr.P.C. and consequently, the conviction
      and sentence imposed by the trial Court against the
      accused for the offence under section 376 r/w.511 IPC
      are set aside. However, the appeal filed by the accused
      for the offence under Section 354 IPC is dismissed.
      Consequently, the conviction and sentence imposed by
      the trial Court against the accused to undergo R.I. for
      five years and fine of Rs.1,000/-, in default, simple
      imprisonment for two months for the offence under
      Section 354 IPC are confirmed."

6.    The conviction and sentence imposed by the trial Court

against the accused to undergo R.I. for five years and fine of

Rs.1,000/- for the offence under Section 354 IPC is maintained

by the first Appellate Court. Against the said judgment of the

first Appellate Court, the present criminal revision case was

preferred by the petitioner/accused and when it is pending for

consideration    and    while    hearing    the    revision,   the

petitioner/accused and 2nd respondent/defacto complainant are

present in the Court.

7. The defacto-complainant was impleaded as 2nd

respondent in the present revision, vide orders dated

10.11.2023 in I.A.No.1 of 2023.

8. I.A.No.2 of 2023 is filed under Section 320(2) of Cr.P.C. by

the defacto complainant/2nd respondent, seeking to record the

compromise and compound the offence against the

petitioner/accused. The accused and defacto complainant

produced their respective identity proofs, they were identified

by the learned counsel on both sides and they jointly filed a

compromise petition stating that they are belongs to adjacent

villages intervened by Railway Track, both the village elders as

well as well-wishers have mediated the issue to maintain peace

and tranquility in the locality and the elders have pacified the

differences between them.

9. I.A.No.3 of 2023 is jointly filed by the defacto complainant

and petitioner/accused seeking permission of the Court to

compound the offence under Section 354 of IPC.

10. Now the question come up for consideration is; whether

the petitioner as well as 2nd respondent can permit to invoke the

provisions of Section 482 of Cr.P.C., which is inherent power to

the High Court to make orders necessary to meet the ends of

justice and to prevent the abuse of process of Court.

11. Section 482 of Cr.P.C. conferred powers on the High

Court to exercise inherent powers, and said section reads as

follows:

"Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice".

12. Generally, Section 482 Cr.P.C used to invoke to quash

the criminal proceedings including F.I.R. or complaint in

appropriate cases. The decision to invoke Section 482 Cr.P.C. in

a criminal revision under Section 397 Cr.P.C. will depend on the

facts and circumstances of each case.

13. In this connection, the learned counsel for the petitioner

brought to the notice of this Court judgment of Hon'ble

Supreme Court in between Shiji @ Pappu v. Radhika1,

wherein at paragraph No.17 held as follows:

"13. It is manifest that simply because an offence is not compoundable under Section 320 IPC is by itself no reason for the High Court to refuse exercise of its power under Section 482 Cr.P.C. 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

1 (2011) 10 SCC 705

exercise in futility. There is a subtle distinction between compounding of offences by the parties before the trial Court or in appeal on one hand and the exercise of power by the High Court to quash the prosecution under Section 482 Cr.P.C. 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 Cr.P.C. are not for that purpose controlled by Section 320 Cr.P.C."

14. Herein this case, whether invoking provisions under

Section 482 of Cr.P.C. is required in an offence under Section

354 IPC, which is not compoundable. The petitioner as well as

2nd respondent categorically stated that they belong to adjacent

villages and on the intervention of elders of both the villages and

well-wishers to maintain peace and tranquility in their locality

and also in their respective families, they intend to compromise

the matter and the 2nd respondent, who is defacto complainant

came forward for recording the compromise. On examination,

she stated that she voluntarily came forward to compromise the

matter with the petitioner/accused and she has no objection to

set aside the conviction and sentence recorded against the

petitioner/accused. Moreover, the offence allegedly committed

by the accused on 23.11.2006 at the age of 32 years against the

2nd respondent, when she was aged about 28 years. Now more

than seventeen years have lapsed from the date of the alleged

offence.

15. It is needless to mention that the High Court has to

exercise its inherent powers under Section 482 Cr.P.C in the

circumstances so warrants such an invocation. Section 482

Cr.P.C. is very clear that it may be used its inherent power to

meet the ends of justice or found to continue the proceedings

would be abuse of process of Court or otherwise to meet the

ends of justice to the parties.

16. This Court is conscious of the fact that the inherent

power used under Section 482 Cr.P.C. is discretionary,

sparingly and cautiously to prevent misuse and while using it

should also be conscious. The Hon'ble Supreme Court and High

Courts laid guidelines, when the inherent powers can be

invoked, where there is an abuse of process of the Court or to

meet the ends of justice the Court can invoke inherent

jurisdiction.

17. In this connection, it is also relevant to make a mention

judgment of the Hon'ble Supreme court in Central Bureau of

Investigation v. Ravi Shankar Srivastava, IAS2, wherein had

laid down the powers of the High Court under Section 482

Cr.P.C., which are as follows:

"Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule.

The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all

2 2006 AIR SCW 3990

such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist." restored powers of the High Court under Section 482 Cr.P.C."

18. In view of the above ratio laid down by the Hon'ble

Supreme Court as well this Court, also perused another

judgment of the Hon'ble Supreme Court in between Gian

Singh v. State of Punjab3, wherein at paragraph No.61 held as

follows:

"61.The position that emerges from the above discussion can be summarized 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

3 (2012) 10 SCC 303

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 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 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."

19. Taking into consideration of the above authoritative

pronouncements and in view of the joint memo filed by the

revision petitioner and the 2nd respondent/defacto complainant

and affidavit filed with regard to the compromise between the

parties, this Court deems it appropriate to allow the present

criminal revision case. Having regard to the above, I.A.Nos.2

and 3 of 2023 are ordered.

20. In the result, the Criminal Revisions Case is also allowed

and the conviction and sentence imposed vide judgment dated

14.12.2007 in S.C.No.104 of 2007 on the file of Court of learned

Assistant Sessions Judge, Gudivada, as partly confirmed in the

judgment dated 20.07.2009 in Crl.A.No.166 of 2007 on the file