Bombay High Court
Sahebrao S/O Ramrao Pandav vs The State Of Maharashtra on 23 June, 2016
Bench: R.V. Ghuge
Cr.Appeal/344/2003+
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 344 OF 2003
WITH
CRIMINAL APPLICATION NO. 1932 OF 2016
AND
CRIMINAL APPLICATION NO. 2941 OF 2016
1.Sk. Bashir Sk.Shabhir,
Age 32 years, occ. labour,
R/o Werul, Tq. Khultabad,
District Aurangabad
At present in Jail.
2. Sk. Nazir Sk. Samsuddin,
Age 31 years, occ. Labour,
R/o as above
3. Sk.Akbar Sk.Chand
Age 27 years, Occ. labour
R/o as above.
4. Sahebrao Ramrao Pandav
Age 27 years, Occ. labour
R/o as above.
5. Nana @ Vishwanath Thakre
Age 27 years, Occ. Agriculture,
R/o as above. ..Appellants
Versus
The State of Maharashtra ..Respondent
...
Advocate for Appellants : Shri Pawar H.F. h/f Shri Kapadia A.H.
APP for Respondents: Shri Bhagat N.T.
Advocate for Intervenor : Shri Deshmukh H.D.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: June 23, 2016
...
ORAL JUDGMENT:-
1. The complainants and the accused, who have been convicted for
Cr.Appeal/344/2003+
having committed offences punishable under Sections 435 and 436 of the
Indian Penal Code, have placed on record a joint compromise document
dated 14.6.2016 for compounding of the offence, along with the
affidavits of the concerned persons.
2. It is jointly submitted by the learned Advocates for the appellants
and the complainants that though the offence held to have been
committed is not a compoundable offence, this Court could exercise it's
inherent powers under Section 482 of the Code of Criminal Procedure and
pass appropriate orders keeping in view the ratio laid down by the
Honourable Supreme Court in the matter of M/s Pepsi Foods Limited and
another Vs. Special Judicial Magistrate and others [AIR 1998 SC 128] and
the judgment of the Honourable Apex Court (3 Judges Bench) in the
matter of Gian Singh Vs. State of Punjab [(2012) 10 SCC 303].
3. The learned APP appearing on behalf of the State has opposed the
said application for the reason that as the offences proved are not
compoundable, this Court need not exercise it's jurisdiction under
Section 482. He prays that the application, therefore, be rejected.
4. I have considered the submissions of the learned Advocates and I
have gone through the appeal paper book. I have also gone through the
evidence recorded and the impugned judgment dated 29.4.2003,
delivered by the learned Additional Sessions Judge, Aurangabad by
which, the accused were handed down the order of conviction and were
Cr.Appeal/344/2003+
sentenced to suffer rigorous imprisonment for a period of two months.
5. The Honourable Supreme Court in the matter of Gian Singh
(supra), after considering the law has concluded in paragraph Nos. 54 to
60 as under:-
"54. In different situations, the inherent power may be
exercised in different ways to achieve its ultimate objective.
Formation of opinion by the High Court before it exercises
inherent power Under Section 482 on either of the twin
objectives, (i) to prevent abuse of the process of any court or (ii)
to secure the ends of justice, is a sine qua non.
55. In the very nature of its constitution, it is the judicial
obligation of the High Court to undo a wrong in course of
administration of justice or to prevent continuation of
unnecessary judicial process. This is founded on the legal maxim
quando lex aliquid alicui concedit, conceditur et id sine qua res
ipsa esse non potest. The full import of which is whenever
anything is authorised, and especially if, as a matter of duty,
required to be done by law, it is found impossible to do that thing
unless something else not authorised in express terms be also
done, may also be done, then that something else will be supplied
by necessary intendment. Ex debito justitiae is inbuilt in such
exercise; the whole idea is to do real, complete and substantial
justice for which it exists. The power possessed by the High Court
Under Section 482 of the Code is of wide amplitude but requires
exercise with great caution and circumspection.
56. It needs no emphasis that exercise of inherent power by the
High Court would entirely depend on the facts and circumstances
Cr.Appeal/344/2003+
of each case. It is neither permissible nor proper for the court to
provide a straitjacket formula regulating the exercise of inherent
powers Under Section 482 . No precise and inflexible guidelines
can also be provided.
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.
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 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 wrong doing that seriously endangers and
threatens well-being of 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,
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yet certain crimes have been made compoundable in law, with or
without 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 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 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.
59. B.S. Joshi (2003) 4 SCC 675, Nikhil Merchant (2008) 9 SCC
677, Manoj Sharma(2008) 16 SCC 1 and Shiji alias Pappu do
illustrate the principle that High Court may quash criminal
proceedings or FIR or complaint in exercise of its inherent power
Under Section 482 of the Code and Section 320 does not limit or
affect the powers of the High Court Under Section 482. Can it be
said that by quashing criminal proceedings in B.S. Joshi : (2003) 4
SCC 675, Nikhil Merchant: (2008) 9 SCC 677, Manoj Sharma :
(2008) 16 SCC 1 and Shiji alias Pappu , this Court has compounded
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the non-compoundable offences indirectly? We do not think so.
There does exist the distinction between compounding of an
offence Under Section 320 and quashing of a criminal case by the
High Court in exercise of inherent power Under Section 482. The
two powers are distinct and different although ultimate
consequence may be same viz., acquittal of the accused or
dismissal of indictment.
60. We find no incongruity in the above principle of law and
the decisions of this Court in Simrikhia : (1990) 2 SCC 437,
Dharampal : 1993 Cri. L.J. 1049, Arun Shankar Shukla AIR 1999 SC
2554, Ishwar Singh : (2008) 15 SCC 667, Rumi Dhar (Smt.). (2009) 6
SCC 364 and Ashok Sadarangani . The principle propounded in
Simrikhia (1990) 2 SCC 437 that the inherent jurisdiction of the
High Court cannot be invoked to override express bar provided in
law is by now well settled. In Dharampal : 1993 Cri. L.J. 1049, the
Court observed the same thing that the inherent powers Under
Section 482 of the Code cannot be utilized for exercising powers
which are expressly barred by the Code. Similar statement of law
is made in Arun Shankar Shukla : AIR 1999 SC 2554. In Ishwar Singh
: (2008) 15 SCC 667, the accused was alleged to have committed
an offence punishable Under Section 307, Indian Penal Code and
with reference to Section 320 of the Code, it was held that the
offence punishable Under Section 307 Indian Penal Code was not
compoundable offence and there was express bar in Section 320
that no offence shall be compounded if it is not compoundable
under the Code. In Rumi Dhar (Smt.) although the accused had
paid the entire due amount as per the settlement with the bank
in the matter of recovery before the Debts Recovery Tribunal, the
accused was being proceeded with for commission of offences
Under Section 120-B/420/467/468/471 of the Indian Penal Code
along with the bank officers who were being prosecuted Under
Section 13(2) read with 13(1)(d) of Prevention of Corruption Act.
Cr.Appeal/344/2003+
The Court refused to quash the charge against the accused by
holding that the Court would not quash a case involving a crime
against the society when a prima facie case has been made out
against the accused for framing the charge. Ashok Sadarangani
was again a case where the accused persons were charged of
having committed offences Under Sections 120-B, 465, 467, 468
and 471, Indian Penal Code and the allegations were that the
accused secured the credit facilities by submitting forged
property documents as collaterals and utilized such facilities in a
dishonest and fraudulent manner by opening letters of credit in
respect of foreign supplies of goods, without actually bringing any
goods but inducing the bank to negotiate the letters of credit in
favour of foreign suppliers and also by misusing the cash-credit
facility. The Court was alive to the reference made in one of the
present matters and also the decisions in B.S. Joshi (2003) 4 SCC
675, Nikhil Merchant : (2008) 9 SCC 677 and Manoj Sharma : (2008)
16 SCC 1 and it was held that B.S. Joshi : (2003) 4 SCC 675, and
Nikhil Merchant : (2008) 9 SCC 677 dealt with different factual
situation as the dispute involved had overtures of a civil dispute
but the case under consideration in Ashok Sadarangani was more
on the criminal intent than on a civil aspect. The decision in
Ashok Sadarangani supports the view that the criminal matters
involving overtures of a civil dispute stand on a different
footing."
6. It is thus the law that with regard to crimes which do not have a
serious impact or endanger the public as well as the society, this Court
can exercise it's powers under Section 482 and permit the compounding
of the offence. In the event, the offence is not serious as like an offence
of murder, rape, dacoity or under the Prevention of Corruption Act or of
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similar nature, the compounding of offences is permissible.
7. Considering the law, it would be necessary to scrutinize the
offence committed by the accused and the circumstances in which it has
been so committed. In the light of the evidence recorded before the trial
Court, which has been discussed by the learned Additional Sessions Judge
in the impugned judgment, it reveals that the accused had assembled at
a Dhaba called "Deogiri Dhaba". They had ordered food and were
waiting for the food to be cooked and served. The son of the owner of
the Dhaba, after cooking the food, served it to the accused.
8. It appears that the accused were angry on account of the delay
caused in the serving of the food and as a consequence of which, they
started abusing PW 3. Father of PW 3 rushed to the scene and thereafter
the accused assaulted PW 3 with slaps, kicks and stick blows. Thereafter,
these accused persons left the Dhaba and returned after some time and
set a heap of fodder kept behind the Dhaba / hotel premises on fire. As a
consequence, some of the chairs, cots, blankets and furniture caught
fire.
9. The facts of this case, therefore, indicate that though the accused
are guilty of committing the offence for which they have been convicted,
the said offence would not fall within the ambit of a "serious crime" or
"heinous crime".
Cr.Appeal/344/2003+
10. As such, in my view, the ratio laid down by the Honourable
Supreme Court in the case of Gian Singh (supra) would apply to this case.
11. In the light of the above, considering the facts of the case, law
applicable, and the compromise terms, which is marked as Exhibit "X"
for identification, the leave sought by the applicants in Exhibit "X" is
allowed and the parties are permitted to compound the offence.
Consequentially, the conviction and the sentence stand set aside and the
appeal is, therefore, allowed in the light of Exhibit "X".
12. Pending Criminal Applications, therefore, do not survive and stand
disposed off.
( RAVINDRA V. GHUGE, J. )
...
akl/d
