Bombay High Court
Subhadrabai Shivraj Hakdale vs The State Of Maharashtra And Anr on 20 December, 2021
Bench: V.K. Jadhav, Sandipkumar Chandrabhan More
cran3227.19
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
46 CRIMINAL APPLICATION NO.3227 OF 2019
SUBHADRABAI SHIVRAJ HAKDALE
VERSUS
THE STATE OF MAHARASHTRA AND ANR
.....
Advocate for Applicant : Mr. Vivek V. Kabade h/f Mr. Sandeep D. Munde
APP for Respondent-State : Mr. R. D. Sanap
Advocate for Respondent No.2 : Mr. A. D. Nande
.....
CORAM : V. K. JADHAV AND
SANDIPKUMAR. C. MORE, JJ.
DATED : 20th DECEMBER, 2021
PER COURT:-
1 We have heard learned counsel for the applicant (original
complainant) and learned counsel appearing for respondent No.2
(original accused). This criminal application is filed for quashing of
the proceeding post conviction, on settlement.
2. In terms of the view taken by the Full Bench of this Court in the
case of Maya Sanjay Khandare vs. State of Maharashtra reported
in 2021 (1) Mh.L.J. 613, learned counsel for the applicant and
learned counsel for respondent No.2 seek leave to make appropriate
submissions before the lower appellate court, before whom criminal
appeal No. 13 of 2013 preferred against the judgment and order of
conviction, is pending, for treating the compromise post conviction as
mitigating circumstance.
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3. In the case of Maya Sanjay Khandare (supra), since there
was disagreement, the Division Bench has framed two questions and
sought reference to be made to the Larger Bench. The questions
were framed and the larger Bench was constituted. Those questions
are re-produced herein below:-
(A) In a prosecution which has culminated in a conviction,
whether the power under section 482, Criminal Procedure
Code ought to be exercised for quashing the
prosecution/conviction altogether, (instead of maintaining
it and considering the issue of modification of the
sentence) upon a settlement between the convict and the
victim/complainant?
(B) Whether the broader principles/parameters as set out in
Gian Singh vs. State of Punjab and another, 2013 (1)
Mh.L.J. (Cri.) (S.C.) 417 = (2012) 10 SCC 303, Narinder
Singh vs. State of Punjab, 2014(4) Mh.L.J. (Cri.) (S.C.)
241 =(2014) 6 SCC 466 and Parbatbhai Aahir and others
vs. State of Gujarat, 2018(2) Mh.L.J. (Cri.) (S.C.) 1 -
(2017) 9 SCC 641 have been correctly applied in deciding
Udhav Kisanrao Ghodse, Ajmatkhan Rahematkhan and
Shivaji Haribhau Jawanjal?
4. So far as the question "A' is concerned, which is relevant for
the present discussion, in para 33 of the judgment, the Full bench
has answered the same with the following observations :-
"33. While answering Question (A) we may observe in the
light of the settled legal position as under :
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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.
Hence, we hold that ordinarily the contention that
the convict and the informant/complainant have entered
into a compromise after the judgment of conviction can be
raised only before the appellate/revisional Court in
proceedings challenging such conviction. It would be a
sound exercise of discretion under Section 482 of the
Code and in accordance with the law of the land to refuse
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to quash criminal proceedings post-conviction for a non-
compoundable offence only on the ground that the parties
have entered into a compromise. Instead the Court can
permit the convicted party to bring to the notice of the
appellate/revisional Court the aspect of compromise.
Having said so, it is only in rarest of rare cases that the
Court may quash the criminal proceedings post-conviction
for a non-compoundable offence on settlement between
the convict and the informant/complainant. To illustrate,
where a jurisdictional issue going to the root of the matter
is raised for challenging the conviction or in matrimonial
disputes where the parties have agreed to settle their
differences, jurisdiction under Section 482 of the Code
could be exercised. Such exercise of jurisdiction should be
limited to the rarest of rare cases when found necessary to
prevent the abuse of the process of the Court or to secure
the ends of justice. Thus while holding that inherent power
under Section 482 of the Code could be exercised for
quashing criminal proceedings even at the
appellate/revisional stage as held in Kiran T. Ingale
(supra) such exercise of jurisdiction should be limited to
the extent stated hereinabove. The ratio of the decision in
Kiran T. Ingale (supra) has to be applied subject to
aforesaid limitations. Further, the expression "criminal
proceedings" would cover the entire journey of the
proceedings commencing from its initiation till the
proceedings culminate giving it seal of finality. Question
(A) is answered accordingly."
5. Learned counsel for the applicant, thus on instructions seeks
leave to withdraw this application with liberty to the applicant so also
respondent No.2 to make appropriate submissions before the lower
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appellate court in the light of the above observations made by the
Full Bench while answering reference question 'A'.
6. In view of the above, leave granted. The application is hereby
disposed of as withdrawn with liberty to the parties to make
appropriate submissions before the lower appellate court in the
pending criminal appeal No. 13 of 2013 to treat the compromise post
conviction arrived at between the parties as mitigating circumstance
while disposing of the said criminal appeal.
(SANDIPKUMAR. C. MORE, J.) (V. K. JADHAV, J.)
rlj/
