Kundlik Banduji Bhosale And Ors. vs Ramnath Limbaji Bhosale And Anr.
2006 Latest Caselaw 702 Bom

JUDGMENT

S.P. Kukday, J.

1. Rule. Rule made returnable forthwith and heard finally by consent of parties. Respective Counsel waive notice for Rule.

2. The present petition is filed by original accused for quashing the proceeding initiated against them being Regular Criminal Case No. 337/2002 in respect of offences punishable under Section 326 read with 34 of the Indian Penal Code.

3. The relevant facts for purpose of deciding this petition are that the petitioners were prosecuted by the respondent No. 2 for offences punishable under Sections 326, 504 and 506 read with 34 of the Indian Penal Code. At the conclusion of the trial, learned 2nd Joint Judicial Magistrate, First Class, Jalna by his order dated 1-10-2003 convicted the petitioners of the offence punishable under Section 326 read with 34 of the Indian Penal Code and sentenced them to suffer R. I. for six months and to pay fine of Rs. 1000/- each, in default to suffer S.I. for one month. The petitioners were, however, acquitted of the offence punishable under Sections 504 and 506 read with 34 of the Indian Penal Code.

4. The petitioners preferred an appeal being Criminal Appeal No. 19 of 2003 before the Court of Sessions. During the pendency of the appeal, the petitioners and respondent No. 1 (original complainant) presented an application for compounding of the offence (Exhibit 24) and an application to seek permission to compound the offence as contemplated by Section 320(2) of the Code of Criminal Procedure. Upon hearing both the parties, learned 4th Ad hoc Addl. Sessions Judge, Jalna was pleased to reject this application for compounding of the offence by his order dated 31 -3-2006. In view of the adverse order passed by the appellate Judge, the petitioners have approached this Court for quashing of the proceeding.

5. Learned Counsel for the petitioners submits that in view of the peculiar circumstances where the parties have compromised the offence and desired to lead future life in harmony, it is necessary that the proceeding be quashed. In support of his contention, learned Counsel has placed reliance on the decision of the Apex Court in the matter of B.S. Joshi v. State of Maharashtra . In that case also, there was compromise between the parties. Considering this fact and with an object to ensure that the parties maintain cordial relations in future, the Apex Court was pleased to quash the F.I.R. There cannot be any dispute about the dictum. In para 15 of the report the Apex Court has observed that -

In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or F.I.R. or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code.

Sections 320 and 482 of the Code operate in different fields. In this background, the Apex Court has held that Section 320 of the Code does not limit or affect inherent powers of the Court which can be exercised in pursuance of Section 482 of the Code. This decision, however, is not applicable to the facts of the present case.

6. In the present case, the petitioners are convicted for an offence punishable under Section 326 of the Penal Code which is non-compoundable. Thus, Sub-section (5) of Section 320 of Criminal Procedure Code is not applicable. Thus, no fault can be found with the impugned order of learned appellate Judge, rejecting the application for permission to compound the offence, which is non-compoundable. The Apex Court had an occasion to deal this aspect in the matter of Surendra Nath Mohanty v. State of Orissa . Dealing with similar situation and holding that the offence cannot be compounded in violation of the mandate, Section 320(9) of the Code of Criminal Procedure, 1973, Their Lordship observed in para 8 of the report that:

However, considering the fact that the parties have settled their dispute outside the Court and the fact that 10 years have elapsed from the date of the incident and further that appellants have already completed 3 months imprisonment as per sentence imposed on them, we think that ends of justice would be met if the sentence of imprisonment is reduced to the period already undergone besides imposing fine of Rs, 5000/- on each of the accused under Section 326 read with 34, Indian Penal Code.

On this hypothesis, the Apex Court reduced the imprisonment in the interest of justice as the matter was compromised and it was advisable that cordial relations between the parties should be maintained in future. Reference can also be made to another judgment of the Apex Court reported in the matter of Bankat and Anr. v. State of Maharashtra in . In the similar situation, after holding that the offence cannot be compounded in view of the mandate of Section 320 of the Code of Criminal Procedure in view of the compromise between the parties, Their Lordships reduced the sentence of imprisonment to the sentence already undergone by imposing suitable amount of fine.

7. Parameters for quashing criminal proceedings are now well established. A criminal proceeding can be quashed if it is found to be frivolous or even after accepting the allegations as they are, no offence is made out even at the prima facie stage, or if the prosecution is initiated merely for vengeance or it otherwise amounts to abuse of the process of law. None of these grounds has been made out in the present case. Contention of learned Counsel for the applicant that the appeal is continuation of the trial, therefore, this Court can quash order of conviction and sentence which has not attained finality cannot be sustained, in view of the decision of the Apex Court referred earlier. In similar situation the Apex Court has reduced the sentence of imprisonment but has not quashed the order of conviction and sentence passed upon the accused. Be that as it may; it is not necessary to elaborate on this point. Learned Counsel has next contended that the petition can be disposed off by setting aside the order of conviction and reducing the sentence of imprisonment to the sentence already undergone. This contention cannot be sustained. The appeal cannot be disposed off by this Court. The appeal pending before the Court of competent jurisdiction has to be decided by that Court alone. In such a situation, the proper course would be to dispose of the present petition with the observation that the lower appellate Court should dispose off the appeal in accordance with the provisions of law and having due regard to the principles enunciated by the Apex Court to do complete justice between the parties. The petition is thus partly allowed. Rule is made absolute in terms of the above observations. Hamdust allowed.