Maya Sanjay Khandare And Another vs State Of Maharashtra, Thr Police ...
2021 Latest Caselaw 116 Bom

APL709.20..odt                                                                                           1/48


                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             NAGPUR BENCH, NAGPUR.

                       CRIMINAL APPLICATION (APL) NO. 709/2020


1. Sau. Maya Sanjay Khandare,
   Aged 38 years, Occ. Household,
   R/o. Chikhli gate, Murtizapur, District Akola

2. Rupesh Shrikrushna Kale,
   Aged about 28 years, Occ. Labourer,
   R/o. Chikhli gate, Murtizapur, Tq. Murtizapur,
   District Akola
                                                                                 ..APPLICANTS
-vs-

State of Maharashtra,
through Police Station Officer,
Murtizapur, Tq. Murtizapur, Dist. Akola.                                         ..NON APPLICANT

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Shri Siddhant Ghatte, Advocate for applicants.

Shri S. Y. Deopujari, Public Prosecutor for non-applicant/State. Shri Anil S. Mardikar, Senior Advocate with Ms Akshaya Kshirsagar, Shri P. R. Agrawal, Shri S. V. Sirpurkar, Shri Sahil Dewani, Shri S. P. Bhandarkar, Ms Nidhi Dayani, Shri Yash Venkatraman and Shri Vivek Bharadwaj, Advocates also addressed the Court.

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CORAM : A. S. CHANDURKAR, VINAY JOSHI and N. B. SURYAWANSHI JJ.

Date on which the arguments were heard                                           : 16.12.2020
Date on which the judgment was pronounced                                        : 05.01.2021

Judgment : (Per A. S. Chandurkar, J.)

The contentious issue as regards the scope of power exercisable

under Section 482 of the Code of Criminal Procedure, 1973 (for short, 'the

Code') when a prayer is made for quashing criminal proceedings/conviction at

the instance of a convict after his conviction for a non-compoundable offence on

account of settlement between the convict and the victim/complainant falls for

determination before this larger bench.

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Decisions leading to the reference :-

2. At the outset we may refer to the decisions that have led to making

of the present reference.

In Criminal Application No.0382 of 2018 (Udhav Kisanrao Ghodse

Vs. State of Maharashtra) the accused were tried for having committed offence

punishable under Section 323 of the Indian Penal Code (for short, 'the Penal

Code'). In addition the accused no.1 was convicted for committing offence

punishable under Sections 447 and 354 of the Penal Code. The order of

conviction was challenged before the Sessions Court by preferring an appeal.

During the pendency of the appeal, the accused and the informant arrived at a

compromise and the said parties approached this Court under Section 482 of the

Code especially in the backdrop of the fact that the offence under Section 354 of

the Penal Code was non-compoundable. The Division Bench at Aurangabad,

after referring to the decision of the Full Bench in Abasaheb Yadav Honmane Vs.

State of Maharashtra 2008 (2) Mh.L.J.856 as well as decision in Gian Singh Vs.

State of Punjab and anr. (2002) 10 SCC 303, vide its judgment dated 26.02.2018

proceeded to hold that since the parties had decided to maintain good and

cordial relations in future and such thought was necessary for the society,

inherent powers under Section 482 of the Code were required to be invoked.

Accordingly the informant was permitted to compound all the offences including

the one under Section 354 of the Penal Code. Consequently the judgment of

conviction recorded by the learned Magistrate was set aside.

In Criminal Application (APL) No.750/2019 (Ajmatkhan S/o.

Rahematkhan, & Anr. Vs. State of Maharashtra) the accused had been convicted

by the learned Magistrate for the offence punishable under Sections 354 and

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452 of the Penal Code. The appeal preferred by the convicts came to be

dismissed by the Sessions Court. Thereafter the convicts and the informant

approached this Court under Section 482 of the Code and by relying upon the

decision in Udhav K. Ghodse (supra) sought quashing of the entire proceedings.

The Division Bench at Nagpur by its order dated 06.08.2019 relying upon the

said judgment and finding such approach necessary for the society permitted the

informant to compound the offence punishable under Sections 354 and 452 of

the Penal Code. The judgment of conviction passed by the learned Magistrate as

well as the judgment of the Sessions Court in appeal came to be set aside and

the convicts were acquitted of all the offences.

Thereafter in Criminal Application (APL) No.1028/2019 (Shivaji

Haribhau Jawanjal Vs. State of Maharashtra) an accused who was prosecuted

for the offences punishable under Sections 323, 354, 452 and 506 of the Penal

Code came to be convicted by the learned Magistrate. The conviction was

maintained by the Sessions Court in the appeal. A revision application

challenging the order of conviction was preferred by the convict and was

pending before the learned Single Judge. The convict and the complainant then

approached this Court jointly under Section 482 of the Code on the ground that

they had arrived at a settlement and with a view to maintain cordial relations

they sought invocation of jurisdiction of this Court. The Division Bench at

Nagpur by its judgment dated 12.02.2020 after referring to the judgment of the

Division Bench in Kiran Tulshiram Ingale vs. Anupama P. Gaikwad and Ors.

2006 (2) Mh.L.J.(Cri) 402 held that the power under Section 482 of the Code

for quashing the proceedings could be exercised even after conviction of an

accused. After referring to the aspect of reformation of an offender and as it was

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found that the complainant desired to pardon the accused, inherent powers

under Section 482 of the Code were invoked to secure the ends of justice.

Accordingly the said application came to be allowed by quashing the order of

conviction.

3. In Criminal Application (APL) No.709/2020 (Maya Sanjay Khandare

and anr. Vs. State of Maharashtra) a report was lodged against the accused on

the basis of which offence was registered under the provisions of Sections 354-A,

354-D and Section 506 of the Penal Code along with Section 3(1) (xi) of the

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The

accused came to be convicted by the Sessions Court on 29.11.2019. The convict

preferred an appeal in this Court which was pending. On 17.08.2020 an

affidavit was sworn by the convict stating therein that since the informant and

the convict were residing in the same locality and an apology had been tendered

to the informant through the mother of the convict, the jurisdiction under

Section 482 of the Code be invoked for quashing and setting aside the first

information report as well as the judgment of conviction passed by the Sessions

Court. On behalf of the applicants reliance was placed on the decisions in

Udhav Ghodse, Ajmatkhan and Shivaji Haribhau Jawanjal (supra). The Division

Bench after referring to the decisions of the Hon'ble Supreme Court in Gian

Singh (supra), Narinder Singh and ors. Vs. State of Punjab, (2014) 6 SCC 466

and Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and ors. Vs. State of

Gujrat and anr. (2017) 9 SCC 641 was of the view that exercise of power under

Section 482 of the Code for quashing and setting aside an order of conviction

has to be rarely exercised rather than being routinely exercised. Such power

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was to be invoked in exceptional circumstances and for offences which were not

against the society. The same could not be invoked merely on the ground of

settlement between the parties. The learned Judges comprising the Division

Bench found themselves unable to agree with the proposition that in cases which

have resulted in conviction of the accused after due trial on a settlement

between the accused and the complainant/victim an application for settlement

could be entertained and the conviction itself could be quashed as was done in

the aforesaid cases. In view of such disagreement the Division Bench framed

two questions and sought a reference to be made to the larger Bench for

answering the same. The questions framed are as under :

(A) In a prosecution which has culminated in a conviction, whether the power u/s 482 Cr.P.C. 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 (2012) 10 SCC 303, Narinder Singh vs. State of Punjab (2014) 6 SCC 466 and Parbatbhai Aahir and others vs. State of Gujrat (2017) 9 SCC 641 have been correctly applied in deciding Udhav Kisanrao Ghodse, Ajmatkhan Rahematkhan and Shivaji Haribhau Jawanjal ?

With a view to seek answers to aforesaid questions, the larger Bench

has been constituted and accordingly the matter was placed before us.

Submissions by learned counsel:

4. On behalf of the applicants in Criminal Application (APL)

No.709/2020, Shri Siddhant Ghatte, learned counsel submitted that there was

no embargo on the exercise of jurisdiction under Section 482 of the Code to

entertain such application for quashing of the criminal proceedings/conviction in

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view of the fact that an appeal challenging the order of conviction had the effect

of continuation of the trial itself. If after conviction the convict and the

informant found it fit to settle the disputes amongst themselves and the offences

involved in the criminal proceedings were not serious in nature, such power

could be invoked to put an end to the entire dispute. Referring to the decision of

the Division Bench in Kiran T. Ingale (supra) he submitted that the order of

conviction passed therein had been challenged by invoking the revisional

jurisdiction of this Court and in that context it had been held that till the

proceedings were finally decided, the order of conviction did not attain finality.

The presumption of innocence of the accused despite conviction by the first

Court would continue till the order of conviction attained finality. For said

purpose, the learned counsel placed reliance on the decision in Padam Singh Vs.

State of U. P. (2000) 1 SCC 621. The learned counsel then referred to the

judgment of the Full Bench of this Court in Abasaheb Yadav Honmane (supra) to

submit that the answers given by the said Full Bench to the effect that inherent

powers under Section 482 of the Code were of wide magnitude and ramification

and such power could be exercised for quashing criminal proceedings of any

kind whether compoundable or non-compoundable on settlement of disputes

between the parties. The Full Bench, according to the learned counsel, had also

held that the power to compound could be exercised even at the appellate stage.

In that view of the matter as the said Full Bench had held so, such power was

available under Section 482 of the Code. He referred to reformative theory that

was taken note of in Shivaji Haribhau Jawanjal (supra) to submit that if the

accused had realized his guilt and was ready to reform himself settlement in

such situation should be encouraged. Refusal to quash criminal proceedings

APL709.20..odt 7/48

after conviction despite settlement between the parties would result in the

stigma of conviction to continue on record. Referring to the decision in Retti

Deenabhandu and ors. Vs. State of Andhra Pradesh, AIR 1977 SC 1335, he

submitted that an order of conviction carries with it a stigma further resulting in

consequences flowing from such conviction. Thus it was all the more necessary

to set aside the order of conviction especially when the parties had settled their

disputes. He also placed reliance on the observations in paragraph 28 of the

decision in Narinder Singh (supra) and the decisions in Arvind Barsaul (Dr.)

and ors. Vs. State of M.P. and anr. (2008) 5 SCC 794, Monica Kumar (Dr.) and

anr. Vs. State of U.P. (2008) 8 SCC 781 as well as the judgment of the Delhi High

Court in R.S.Arora Vs. State of NCT Delhi 1995 AIHC 2769 . It was thus his

submission that considering the wide scope of powers under Section 482 of the

Code coupled with the reformative theory, there was no limitation to exercise

such power and quash criminal proceedings even after conviction of the accused

if there was a settlement arrived at between the parties. The only exception to

this were offences of a serious nature and crimes against the society.

5. Learned Advocates at the bar sought permission to address the Court

on the questions as framed. On being so permitted, Shri Anil S. Mardikar,

learned Senior Advocate, at the outset submitted that the law as laid down by

the earlier Full Bench in Abasaheb Yadav Honmane (supra) was clear enough to

answer Question (A) as framed by the Division Bench. It having been held that

the inherent power under Section 482 of the Code for quashing criminal

proceedings being of a wide magnitude for being exercised with the object of

securing the ends of justice, there was no limitation on such powers for being

exercised only prior to conviction of an accused. There was no reason

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whatsoever to restrict exercise of powers under Section 482 of the Code only to

cases where an order of conviction was not passed. If requirements of Section

482 of the Code were satisfied in the sense that it was necessary to give effect to

any order under the Code or to prevent an abuse of the process of any Court or

to secure the ends of justice, the proceedings could be quashed notwithstanding

the fact that the order of conviction was already passed against the accused.

Since the power under Section 482 of the Code was not controlled by Section

320 of the Code, such power could be exercised at any stage of the criminal

proceedings. Criminal proceedings would commence from the lodging of the

first information report and would continue till the order of conviction, if

passed, attained finality. Merely because the order of conviction was pending

adjudication at the appellate or revisional stage the same could not be a ground

for refusing to exercise powers under Section 482 of the Code to quash the

criminal proceedings especially when the parties to the dispute had arrived at a

settlement. The exception when such power could not be exercised was already

laid down by the Hon'ble Supreme Court in Gian Singh and Narinder Singh

(supra). Placing reliance on the decision in Mallikarjun Kodagali (Dead)

through LRs vs. State of Karnataka, (2019) 2 SCC 752, it was urged that the

larger object to seek a settlement and encourage the victims of offences to come

forward in that regard was emphasised therein. He also referred to the decision

of the Division Bench in Kiran T. Ingale (supra) to indicate that the power to

quash criminal proceedings even after conviction was recognized by the Court.

The learned Senior Advocate sought to invoke principle of "stare decisis" by

urging that since the decision of the Division Bench in Kiran T.Ingale (supra) this

Court had been consistently entertaining and quashing proceedings under

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Section 482 of the Code when the parties arrived at a settlement

notwithstanding the fact that the trial had resulted in an order of conviction. In

any event when the High Court was the appellate Court it could invoke its

jurisdiction under Section 482 of the Code and such powers were in addition to

powers available under Section 386 of the Code. There was no limitation to the

exercise of inherent powers of the High Court. Reference was made to the

decision in Bitan Sengupta and anr Vs. State of West Bengal and anr. (2018) 18

SCC 366 and it was submitted that considering the wide amplitude of the

powers under Section 482 of the Code, the same could be exercised for quashing

the criminal proceedings post-conviction when the convict and the victim had

arrived at a settlement.

6. Shri Sahil Dewani, learned counsel submitted that there was no

embargo on the exercise of jurisdiction under Section 482 of the Code even after

conviction notwithstanding the fact that an appellate remedy was available.

Such power could be exercised to meet the ends of justice where the parties had

settled their disputes except in serious offences against the society. Referring to

the decision in Bitan Sengupta (supra), it was submitted that if settlement

between the parties is brought to the notice of the Court in an appeal

challenging conviction, such settlement should be accepted and relief should be

granted to the parties. He further submitted that even if an alternate remedy by

way of an appeal/revision was available to challenge an order of conviction, the

same cannot be a ground to refuse to entertain the proceedings under Section

482 of the Code for quashing of criminal proceedings. For said purpose he

referred to the decisions in Vijay and anr. Vs. State of Maharashtra (2017) 13

SCC 317, Prabhu Chawla Vs. State of Rajasthan and ors. (2016) 16 SCC 30 and

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Punjab State Warehousing Corporation Faridkot Vs. Durgaji Traders and ors.

(2011) 14 SCC 615. He also brought to the notice of the Court the decisions in

State of M.P. Vs. Dhruv Gurjar and ors. (2019) 5 SCC 570, Shiji @ Pappu and

ors. Vs. Radhika and anr. (2011) 10 SCC 705, Saloni Rupam Bhartiya Vs Rupan

Pralhad Bhartiya AIR Online 2015 SC 50 and State of Rajasthan Vs. Shambhu

Kewat and ors. (2014) 4 SCC 149.

7. Shri P. R. Agrawal, learned counsel submitted that after the Hon'ble

Supreme Court answered the reference in Gian Singh (supra), the proceedings

in Criminal Appeal No.2052/2013 were decided by the Hon'ble Supreme Court

by its judgment dated 06.12.2013. The order passed by the High Court in those

proceedings refusing to quash the proceedings under Section 482 of the Code

was set aside and the proceedings were remanded to the High Court for a fresh

adjudication in the light of the law laid down therein. In that case also the

parties had entered into a compromise after the accused was convicted for the

offence punishable under Section 420 and 120-B of the Penal Code. He then

submitted that the Division Bench of the Punjab and Haryana High Court in

Sube Singh and another Vs. State of Haryana and another 2014 (2) Crimes 299

had considered the question on a reference made to it as to whether criminal

proceedings could be quashed by the High Court in exercise of power under

Section 482 of the Code even when the accused was found guilty and convicted

by the trial Court. The question was answered by holding that the power under

Section 482 of the Code was wide enough to quash proceedings in relation to a

non-compoundable offence notwithstanding the bar under Section 320 of the

Code and such power could be exercised at any stage of the proceedings. In the

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said case, the accused was convicted under Sections 420, 467, 468 read with

Section 120 B of the Penal Code. In view of compromise between the parties

which was found to be genuine and as the parties were living under the same

roof, it was held that it was a fit case to invoke inherent jurisdiction and strike

down the proceedings by providing for certain safeguards. Thus, according to

the learned counsel power under Section 482 of the Code could be exercised

even after conviction of the accused for a non-compoundable offence. He also

referred to the decisions of the Punjab and Haryana High Court in Dharambir

Vs. State of Haryana (2005) 3 RCR (Cri) 426 (FB) and Kulwinder Singh and

others Vs. State of Panjab and another (2007) 3 RCR (Cri) 1052 .

Shri S. V. Sirpurkar, learned counsel referred to the report of the Law

Commission on the aspect of compounding of offences and submitted that in

view of the recommendations of the Law Commission in its 237 th report it was

necessary to encourage participation of victims on the aspect of settlement. It

was thus clear that if such efforts were brought before the Court the same

should be accepted in exercise of power under Section 482 of the Code. He also

referred to the decision in Prabhu Chawla (supra) on the question of availability

of an alternate remedy and the same not being a hurdle in the exercise of power

under Section 482 of the Code.

8. Shri S.Y.Deopujari, learned Public Prosecutor for the State of

Maharashtra submitted that after conviction of an accused for commission of a

non-compoundable offence if the parties arrive at any settlement the entire

order of conviction was not liable to be set aside. At the most the sentence

imposed on such accused could be suitably modified if the compromise was

accepted. While exercising such power under Section 482 of the Code in view of

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settlement of disputes between the convict and the victim, the impact of

acceptance of such settlement on the society as well as the victim should not be

ignored. In view of the order of conviction passed after a full-fledged trial the

accused should not be acquitted by virtue of settlement post-conviction. This

would frustrate the entire exercise conducted during the trial and would also

affect the deterrent theory which was necessary for maintaining a law abiding

society. It would also encourage the accused to somehow seek to settle the

dispute after the order of conviction and there was a possibility that the

victim/complainant could be pressurized in doing so. Where the prosecution

had ended in an order of conviction, the facts as well as the evidence on record

would require examination before accepting a request of compromise. Such

exercise would not be possible while exercising jurisdiction under Section 482 of

the Code. On the other hand in exercise of appellate/revisional jurisdiction the

Court could undertake such exercise and if it was convinced about the

genuineness of the compromise, the sentence could be suitably modified. He

thus submitted that the scope and power available under Section 482 of the

Code was limited especially after an order of conviction for a non-compoundable

offence. He also submitted that the decision in B.S.Joshi Vs. State of Haryana

(2003) 4 SCC 675 related only to matrimonial cases and minor private disputes.

The scope to quash criminal proceedings could not be enhanced especially after

an order of conviction was passed by the trial Court.

9. Shri S.P.Bhandarkar, learned counsel submitted that the jurisdiction

under Section 482 of the Code ought to be exercised only to give effect to any

order passed under the Code or to prevent the abuse of the process of law or to

secure the ends of justice. Such powers were in addition to powers available

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under the Code and these powers being procedural in nature, other provisions of

the Code could not be ignored or nullified while exercising jurisdiction under

Section 482 of the Code. If relief could be granted under other provisions of the

Code then no substantive relief could be granted under Section 482 of the Code.

He sought to equate the provisions of Section 482 of the Code with the

provisions of Section 151 of the Code of Civil Procedure, 1908. In that regard,

he referred to the decisions in K.K.Velusamy Vs. N.Palanisamy, (2011) 11 SCC

275 and State of U.P. and ors. Vs. Roshan Singh (Dead) by LRs and ors. (2008)

2 SCC 488. He then referred to the provisions of Section 320 of the Code.

According to him, compromise, if any, should not be lightly accepted and the

material aspects such as the timing of compromise especially after conviction,

chances taken by the accused during the trial and such compromise being

entered into thereafter, the possibility of buying out the victim have to be kept in

mind. He also referred to the theory of reformation vis-a-vis the theory of

deterrence. There was no bar for the appellate Court while considering an

appeal challenging conviction to take into consideration the aspect of

compromise. He also referred to the provisions of Section 265-A and 265-B of

the Code. He then submitted that where the prosecution was launched by the

State, it should also be a party to the compromise entered into between the

convicted accused and the victim. If such compromise was easily accepted and

the conviction was set aside on that count, the same would have adverse impact

on the law abiding society and the theory of deterrence would also be affected.

He placed reliance on the decisions in State of Madhya Pradesh Vs. Laxmi

Narayan and ors. (2019) 5 SCC 688, Ishwar Singh Vs. State of Madhya Pradesh

(2008) 15 SCC 667, Arun Shankar Shukla Vs. State of Uttar Pradesh and ors.

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(1999) 6 SCC 146 and Central Bureau of Investigation Vs. A. Ravinshankar

Prasad and ors. (2009) 6 SCC 351 to substantiate his contentions.

10. Shri Yash Venkatraman, learned counsel submitted that the decisions

in the cases of Gian Singh and Narinder Singh (supra) do not deal with the

situation arising out of the prayer for quashing criminal proceedings after

conviction for a non-compoundable offence. The ratio of those decisions was in

the context of settlement of disputes before conviction. On the other hand by

referring to the decision in Manohar Singh Vs. State of Madhya Pradesh (2014)

13 SCC 75, it was submitted that though the conviction of the accused therein

was under Section 498-A of the Penal Code and the dispute was of a private

nature, the order of conviction was not quashed but the same was maintained

and the sentence was reduced in view of the settlement of the disputes. He then

referred to the provisions of Section 75 of the Penal Code to urge that in certain

situations if there was an order of previous conviction then enhanced

punishment was liable to be imposed on conviction for a subsequent offence. If

compromise after conviction for a non-compoundable offence is accepted and

the conviction is set aside, the object behind enacting Section 75 of the Penal

Code which seeks to curb commission of another offence subsequent to the

earlier conviction would be frustrated. This was all the more reason that even if

the disputes were settled, the conviction ought not to be set aside and it was

only the sentence which ought to be modified. He also referred to the

provisions of Sections 354-C and 354-D of the Penal Code and submitted that

compromise if entered into after conviction could at the most result in reducing

the sentence imposed by the trial Court.

Ms. Nidhi Dayani, learned counsel submitted that compromise if any

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can be looked into after conviction when the Court seeks to exercise appellate or

revisional jurisdiction while considering the challenge to the order of conviction.

Referring to the decision of the Full Bench in Abasaheb Yadav Honmane (supra)

it was submitted that while exercising power under Section 482 of the Code, the

decision of the trial Court could not be substituted by this Court under the garb

of exercising inherent jurisdiction. She also referred to the provisions of

Sections 374 and 375 of the Code to urge that when a remedy for challenging an

order of conviction is provided jurisdiction under Section 482 of the Code should

not be exercised.

Shri Vivek Bharadwaj, learned counsel referred to the judgment in

Gian Singh (supra) to urge that the said decision deals with pre-conviction cases

and the analogy applied therein could not be extended to cases after conviction

of the accused. Similarly the judgment in Narinder Singh (supra) also dealt with

the situation relating to exercise of power under Section 482 of the Code prior to

conviction. If the proceedings under Section 482 of the Code are entertained

despite availability of appellate remedy, the same would result in transgressing

appellate jurisdiction conferred on the Court.

11. We have heard the illuminative submissions made by the learned

counsel on the questions as framed and we have given our thoughtful

consideration to the same.

Question (A) : In a prosecution which has culminated in a conviction, whether the power u/s 482 Cr.P.C. 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 ?

While answering Question (A) which pertains to exercise of power

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under Section 482 of the Code subsequent to conviction of an accused at which

stage there occurs a settlement between the convict and the informant, it would

be necessary to first examine the nature and scope of powers conferred under

Section 482 of the Code.

Nature and scope of powers under Section 482 of the Code.

12. Section 482 of the Code recognizes the inherent power of the High

Court to exercise jurisdiction and make such orders that are found necessary to

give effect to any order under the Code or to prevent the abuse of the process of

any Court or otherwise to secure the ends of justice. After recognising such

inherent powers the said provision stipulates that nothing in the Code shall be

deemed to limit or affect the aforesaid powers of the High Court. The provisions

of Section 482, its scope, width and amplitude had been considered in various

decisions of the Hon'ble Supreme Court and reference could be made to some

recent precedents. In State of Punjab Vs. Davinder Pal Singh Bhullar and ors.

(2011) 14 SCC 770 it was held that the expressions "abuse of the process of law"

and "ends of justice" are aspects that have to be dealt with in accordance with

law which includes procedural law and not otherwise. In Surya Baksh Singh

Vs. State of Uttar Pradesh (2014) 14 SCC 222 , it was held that the expression

"ends of justice" would mean not only the rights of a convict but also the rights

of victims of the crime and the law abiding section of the society. Similarity was

found in the powers conferred under Section 482 of the Code with the

provisions of Section 151 of the Code of Civil Procedure, 1908. It is also settled

that availability of an alternate remedy by itself cannot be a reason to refuse to

exercise jurisdiction under Section 482 of the Code. This position has been

clarified in Prabhu Chawla and Vijay and anr. (supra). The limitation on the

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Court while seeking to exercise inherent powers is one of self-restraint and

nothing more.

13. The Hon'ble Supreme Court in catena of cases has used the

expression "rarest of rare case" while describing the scope of exercise of power

under Section 482 of the Code. Reference in that regard can be made to the

decisions in Pratibha Vs. Rameshwari Devi and ors. (2007) 12 SCC 369 , Sunita

Jain Vs. Pawan Kumar Jain and ors. (2008) 2 SCC 705 and Som Mittal Vs.

Government of Karnataka (2008) 3 SCC 574. By requiring jurisdiction to be

exercised in the rarest of rare case the approach to be adopted by the High Court

under Section 482 of the Code has been indicated. In this context, we may refer

to the judgment of the Division Bench of this Court in Istiyak Khan Iqbal Khan

Vs. State of Maharashtra , 2014 ALL MR (Cri) 3045 that was referred to by the

learned counsel for the applicants. The applicant therein along with twelve

others were prosecuted for the offence punishable under Section 3(1)(ii) and

Section 3(4) of the Maharashtra Control of Organised Crime Act, 1999 (for

short, the Act of 1999). Eight accused thereafter underwent trial. After the

charges were framed the applicant pleaded guilty. At the conclusion of the trial

the other seven accused came to be acquitted by the trial Court after holding

that the prosecution had failed to bring on record sufficient evidence to establish

that the provisions of the Act of 1999 had been attracted. In short the sole

applicant came to be convicted under provisions of the Act of 1999. The

applicant invoked extra ordinary jurisdiction of this Court under Section 482 of

the Code praying that his conviction be set aside in the light of the fact that he

alone had been convicted under the Act of 1999. Shri B.R.Gavai, J (as His

Lordship then was) speaking for the Bench considered the question as to

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whether the conviction of the applicant based on the plea of guilt would be

sustainable especially when the prosecution had failed to bring evidence on

record to establish commission of offence under the Act of 1999. It was held

that as the prosecution had failed to establish existence of an organized crime

syndicate, a single person could not be said to have committed offence under the

Act of 1999. In this backdrop, the Court proceeded to consider whether the said

case was an appropriate case for invoking jurisdiction under Section 482 of the

Code. It was held that when all the other accused had been acquitted on the

ground that the prosecution had failed to prove the case under the provisions of

the Act of 1999, the sole applicant could not be convicted on the mistaken plea

of guilt. Describing the case to be a "rarest of rare case", the Court proceeded to

exercise powers under Section 482 of the Code for setting aside conviction of the

applicant. It was also noted that the applicant had undergone sentence of more

than five years and exercise of jurisdiction was necessary otherwise to secure the

ends of justice. The facts of this case clearly highlight the use of the expression

"rarest of rare case" wherein the order of conviction was set aside in exercise of

power under Section 482 of the Code inasmuch as a jurisdictional question of

conviction of sole accused for an offence involving organized crime had arisen.

Parameters laid down in Gian Singh and Narinder Singh by the Honourable Supreme Court :

14. In Gian Singh (supra) the question as regards permissibility of

indirectly permitting compounding of non-compoundable offences was referred

to a larger Bench of the Hon'ble Supreme Court especially in the light of the

decisions in B.S.Joshi (supra), Manoj Sharma vs State (2008) 16 SCC 1 and

Nikhil Merchant vs Central Board of Investigation (2008) 9 SCC 677 . In

APL709.20..odt 19/48

paragraph 61 of the judgment in Gian Singh (supra), it was observed as under :

"61. .....................In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the 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 a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the 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 predominantingly civil flavour stand on a 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, the High Court may quash the criminal proceedings if in its view because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the 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 the wrongdoer and whether to secure the ends of justice, it is appropriate that the 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 ".

It is to be noted that in the aforesaid paragraph the Hon'ble Supreme

Court has observed that the High Court may quash criminal proceedings if in its

view because of the compromise between the offender and the victim the

possibility of conviction would be remote and bleak. Continuation of the

APL709.20..odt 20/48

criminal case would cause great oppression and prejudice as well as extreme

injustice. It can be seen that the Court principally considered the question with

regard to situations arising prior to conviction.

The decision in Gian Singh (supra) and its ratio was subsequently

considered in Gopakumar B. Nair Vs. Central Bureau of Investigation and anr.

(2014) 5 SCC 800 by the Bench of three learned Judges. It was observed that

what was referred to the larger Bench while deciding Gian Singh (supra) was

the question whether quashing of a non-compoundable offence on the basis of

compromise/settlement of the dispute between the parties would be permissible

and would not amount to overreaching the provisions of Section 320 of the

Code. The merits of the decision in Nikhil Merchant (supra) had not been

referred to. It was thereafter explained that what followed from the decision in

Gian Singh (supra) was that though quashing a non-compoundable offence

under Section 482 of the Code following a settlement between the parties would

not amount to circumvention of the provisions of Section 320 of the Code, the

exercise of power under Section 482 of the Code would always depend on the

facts of each case. This was held to be the correct ratio of the decision in Gian

Singh (supra).

15. In Narinder Singh (supra), proceedings under Section 482 of the

Code were filed seeking quashing of the first information report that was

registered under Sections 307, 323, 324 read with Section 34 of the Penal Code

in view of compromise between the accused and the complainant. The

compromise was not accepted by the High Court and that order was put to

challenge before the Hon'ble Supreme Court. Reference was made to the

decision of the larger Bench in Gian Singh (supra) and it was observed that mere

APL709.20..odt 21/48

settlement between the parties should not be a ground to quash the proceedings

by the High Court as settlement of a heinous crime cannot have the imprimatur

of the Court in the light of the fact that offence under Section 307 of the Penal

Code was alleged to have been committed. It was a crime against the society

and it was thus the duty of the State to punish the offender. Even in case of

settlement between the offender and the victim, their will would not prevail as

in such cases the matter was in public domain. The Court also referred to the

timing of the settlement which would play a crucial role in the matter. The

Court noted in paragraph 28 as under :-

"28. We have found that in certain cases, the High Courts have accepted the compromise between the parties when the matter in appeal was pending before the High Court against the conviction recorded by the trial court. Obviously, such cases are those where the accused persons have been found guilty by the trial court, which means the serious charge of Section 307 IPC has been proved beyond reasonable doubt at the level of the trial court. There would not be any question of accepting compromise and acquitting the accused persons simply because the private parties have buried the hatchet.

In paragraph 29.7 it was observed that in cases where the conviction

was already recorded by the trial Court and the matter was at the appellate

stage, mere compromise between the parties would not be a ground to accept

the same resulting in acquittal of the offender who had been convicted by the

trial Court. The Court thereafter proceeded to lay down guidelines for the

exercise of power under Section 482 of the Code. While doing so the Court also

referred to the requirement of examining the possibility of conviction being

remote and bleak.

In the aforesaid decision the Court considered the prayer for

quashing of the first information report in the light of compromise between the

parties when the matter was before the trial Court. However with regard to the

APL709.20..odt 22/48

matters where conviction was already recorded after which the parties arrived at

a settlement, it has been observed in clear terms that such compromise by itself

would not be sufficient to acquit the accused who had been convicted by the

trial Court.

16. The decision in Narinder Singh (supra) was considered by another

bench of three learned Judges in State of Madhya Pradesh Vs. Laxminarayan

and others (2019) 5 SCC 688 on a reference made to it in the light of conflict in

the decisions in State of Rajasthan vs. Shambhu Kewat (2014) 4 SCC 149 and

Narinder Singh (supra). Therein the High Court in exercise of powers under

Section 482 of the Code had quashed the first information report registered

under Sections 307 and 34 of the Penal Code solely on the basis of compromise

between the complainant and the accused. After referring to the decisions in

Gian Singh and Narinder Singh (supra) it was held that offences under Section

307 of the Penal Code and under the Arms Act, 1959 would fall in the category

of heinous and serious offences which were required to be treated as crime

against the society and not against an individual alone. Criminal proceedings

for such offences that had a serious impact on the society could not be quashed

in exercise of powers under Section 482 of the Code on the ground that the

parties had resolved their entire dispute amongst themselves. It further

observed that mere mention of Section 307 of the Penal Code in the first

information report or in the charge as framed should not be the basis for the

High Court to rest its decision. It would be open for the High Court to examine

whether incorporation of Section 307 of the Penal Code was only for the sake of

it or the prosecution had collected sufficient evidence in that regard. Such

exercise however would be permissible only after the evidence was collected

APL709.20..odt 23/48

after investigation and the charge-sheet was filed/charge was framed and/or

during the trial. Such exercise would not be permissible when the matter was

still under investigation. It was held that the ultimate conclusions in paras 29.6

and 29.7 of the decision in Narinder Singh (supra) had to be read harmoniously

as a whole. With regard to non-compoundable offences which were private in

nature and did not have a serious impact on society it was observed in

paragraph 15.5 as under :

"15.5. While exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non- compoundable offences, which are private in nature and do not have a serious impact on society, on the ground that there is a settlement/compromise between the victim and the offencer, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise, etc."

These observations clearly indicate that even while exercising power

of quashing criminal proceedings in respect of non-compoundable offences

which are private in nature and do not have serious impact on society the High

Court is expected to consider the antecedents of the accused, his conduct as to

whether he was absconding and reason for the same and how he managed with

the complainant to enter into a compromise. These observations are an

indicator of the parameters that would have to be applied even with regard to

quashing of non-compoundable offences which are private in nature and do not

have a serious impact on society.

Section 320 of the Code.

17. Section 320 (1) of the Code specifies offences that may be

compounded by the persons mentioned in the third column of the table

APL709.20..odt 24/48

appended thereto. Section 320 (2) specifies offences that may be compounded

with the permission of the Court before which any prosecution for such offence

is pending. As per Section 320 (5) when the accused has been committed for

trial or has been convicted and an appeal is pending, the offence cannot be

compounded without the leave of the concerned Court. Under Section 320 (6)

the High Court or the Court of Sessions in exercise of revisonal power can allow

any person to compound any offence which he is competent to do so under

Section 320. Section 320 (9) clearly stipulates that no offence shall be

compounded except as provided by the said Section. By now it is well settled

that the power of compounding an offence has to be exercised strictly in the

manner provided by Section 320 of the Code. It is only those offences stipulated

by Section 320 (1) and (2) of the Code that could be permitted to be

compounded. The power to compound under Section 320 is different from the

aspect of quashing of proceedings as held in Shambhu Kewat (supra). Similarly,

a non-compoundable offence cannot be permitted to be compounded by taking

recourse to Section 320 of the Code as held in Ram Lal and ors. Vs. State of

Jammu and Kashmir (1999) 2 SCC 213 and Ishwar Singh Vs. State of Madhya

Pradesh (2008) 15 SCC 667. In B.S.Joshi (supra) it has been held that the

provisions of Section 320 of the Code do not act as a bar in the exercise of power

under Section 482 of the Code.

The history of compounding has been referred to in JIK Industries

Limited and others Vs. Amarlal V.Jumani and anr. (2012) 3 SCC 255 and it has

been held that the provisions contained in Section 320 of the Code and its

various sub sections was in the nature of a code in itself relating to

compounding of an offence. It was observed that in common law compounding

APL709.20..odt 25/48

was considered a misdemeanor. When the Criminal Procedure Code, 1861 was

enacted it was silent about compounding of offences. It was introduced in the

Code of 1872 in the form of Section 188. In the subsequent Code of 1898

Section 345 specified offences which were compoundable. It is only after repeal

of that Code and enactment of the present Code of 1973, that Section 320 was

introduced containing comprehensive provisions for compounding.

Whether compromise by itself is sufficient to set aside conviction in a non- compoundable offence :

18. On conviction of an accused by the trial Court the remedy available

to challenge the order of conviction has been provided in Chapter-XXIX of the

Code and especially by Section 374 therein. The powers of the appellate Court

are prescribed by Section 386 of the Code while revisional powers are indicated

by Section 401 of the Code in Chapter-XXX. Once an order of conviction is

recorded by the trial Court on the basis of material presented by the

prosecution/complainant, it is for the appellate Court to either reverse such

finding or alter it or in a given case even enhance the sentence. As held in Jeetu

Vs. State of Chhattisgarh (2013) 11 SCC 489 it is the duty of the appellate Court

to arrive at its own independent conclusion after examining the material on

record. This exercise has however to be conducted after considering the material

on record. There is no power conferred by the Code either on the appellate

Court/revisional Court to acquit an accused convicted for a commission of a

non-compoundable offence only on the ground that compromise has been

entered into between the convict and the informant/complainant.

19. There are overwhelming precedents to the effect that if any

compromise is entered into between the convict and the victim/complainant

APL709.20..odt 26/48

post-conviction for a non-compoundable offence, such compromise by itself

cannot be a reason to set aside the order of conviction. The order of conviction

would have to be tested by the appellate Court/revisional Court on merits and if

the Court finds it necessary to maintain the conviction, the compromise entered

into would be only a factor to be considered while imposing appropriate

sentence. In other words while maintaining the conviction for a non-

compoundable offence the fact that after such conviction the parties have

entered into a compromise would be a mitigating factor to be taken into

consideration while awarding appropriate sentence.

One of the earliest decisions in which the effect of compromise after

conviction for a non-compoundable offence was considered was in Ram Pujan

and ors. Vs. State of U.P. AIR 1973 SC 2418. There the accused were convicted

by the Sessions Court under Section 326 read with Sections 149 and 323 of the

Penal Code. The High Court acquitted some of the accused and conviction of the

others was altered to that under Section 326 read with Section 34 and Section

323 of the Penal Code. The Hon'ble Supreme Court noticed that when the

appeal was pending before the High Court an application for compromise on

behalf of the injured prosecution witnesses was filed. It was stated that the

parties had amicably settled their dispute and they wanted to live in peace. The

settlement was got verified from the trial Court but the High Court did not grant

permission to compound the offence under Section 326 of the Penal Code as it

was non-compoundable. However the sentence for the said offence was reduced

from four years to two years. It was observed by the Hon'ble Supreme Court

that the major offence for which the appellants had been convicted was non-

compoundable. However the fact of compromise could be taken into account in

APL709.20..odt 27/48

determining the quantum of sentence. Accordingly, while maintaining the order

of conviction, the sentence was reduced to the period already undergone by the

appellants. The course followed in this decision rendered by three learned

Judges has thereafter been followed notably also by another bench of three

learned Judges in Surendra Nath Mohanty and another Vs. State of Orissa

(1999) 5 SCC 238. These decisions indicate that the effect of compromise after

conviction for a non-compoundable offence has to be taken into consideration

only for the purpose of reducing the sentence and not for setting aside the

conviction on that count.

20. The course consistently followed by the Hon'ble Supreme Court

while considering the challenge to the order of conviction and the effect of

settlement thereafter is to maintain the conviction as recorded but to reduce the

sentence imposed for commission of such non-compoundable offence. Reference

can be usefully made to some amongst numerous decisions wherein such course

was followed :

1. Salim and others Vs. State of M.P. 1995 Supp (4) SCC 631.

2. Murugesan and others Vs. Ganpathy Velar (2001) 10 SCC 504.

3. Ramchandra Singh and Ors Vs. State of Bihar and ors.

(2003)10 SCC 234

4. Badrilal Vs. State of M.P. (2005) 7 SCC 55.

5. Jetha Ram and ors. Vs. State of Rajasthan (2006) 9 SCC 255.

6. Sanjit Datta Vs. State of Tripura and anr. (2006) 13 SCC 294.

7. Badal Deb and anr. Vs.State of Assam (2006) 10 SCC 540.

8. Ishwar Singh Vs. State of Madhya Pradesh, (2008) 15 SCC 667.

9. Puttaswamy Vs. State of Karnataka and ors. (2009) 1 SCC 711.

10. Amar Nath Shukla Vs. State of Uttaranchal (2009) 9 SCC 390.

11. K.K.Sreedharan and ors. Vs. State of Kerala and anr.

(2011) 15 SCC 139.

12. Rajendra Harakchand Bhandari and ors. Vs. State of Maharashtra & ors. AIR 2011 SC 1821.

13. Gulab Das and ors. Vs. State of M.P. AIR 2012 SC 888.

14. Mukesh Kumar and ors. Vs. State of Rajasthan (2013) 11 SCC 511.

APL709.20..odt 28/48

15. Manohar Singh Vs. State of Madhya Pradesh, (2014) 13 SCC 75.

16. Shankar and ors. Vs. The State Maharashtra and ors.

(2019) 5 SCC 166.

The legal position is thus clear that compromise post-conviction for a

non-compoundable offence ipso facto cannot result in acquittal of the convict

and compromise is one amongst various aspects to be considered while imposing

appropriate sentence when the conviction is liable to be maintained on

examining the merits of the case.

21. The observations of the Hon'ble Supreme Court in Hasi Mohan

Barman vs. State of Assam and anr. (2008) 1 SCC 184 are also relevant for the

purposes of considering the effect of compromise post-conviction. The accused

therein were convicted for the offence punishable under Section 313 of the Penal

Code read with Section 34 thereof. That conviction was maintained by the High

Court but by reducing the sentence imposed by the Sessions Court. During

pendency of the proceedings, the complainant married accused no.1 and she

thereafter filed an affidavit stating that in view of such compromise she wanted

to withdraw the criminal case pending against her husband and the other

accused. The Hon'ble Supreme Court which was seized of the appeal directed

the learned Sessions Judge to verify the contents of the affidavit sworn by the

complainant. On such verification it was reported that the contents thereof were

correct. While considering the effect of such compromise during the pendency

of the appeal it was observed by the Hon'ble Supreme Court that the consent

given by the wife/complainant or the affidavit filed by her could not be utilized

for the purpose of recording a finding of acquittal in favour of the accused. The

conviction of the appellant was maintained but taking note of the aforesaid

settlement the sentence was reduced to the period already undergone by the

APL709.20..odt 29/48

said accused. It is clear from this decision that despite compromise and the

consent given by the complainant the same was not utilized for the purpose of

acquitting the accused.

Reference can also be made to the decision in C.Muniappan Vs.

State of Tamil Nadu (2009) 13 SCC 790 where the accused were tried and

convicted under Section 302 of the Penal Code. During the pendency of the

appeal a compromise entered into between the family of the victim and the

accused was sought to be relied upon. The Hon'ble Supreme Court observed

that if the parties had settled their disputes they could live in peace but that by

itself cannot be a ground to pass a judgment of acquittal.

22. In yet another recent decision in State of Madhya Pradesh Vs. Dhruv

Gurjar and anr. (2019) 5 SCC 570, the first information report was registered

under Sections 307, 294 and 34 of the Penal Code. When investigation was

pending the accused filed an application under Section 482 of the Code seeking

quashing of the criminal proceedings on the ground that the parties had arrived

at a compromise. The High Court proceeded to quash the criminal proceedings

in view of such settlement which order was challenged before the Hon'ble

Supreme Court. It was held that while quashing the proceedings the High Court

failed to consider the fact that the offences alleged were non-compoundable as

well as serious. They also had social impact. After referring to the decisions in

Gian Singh, Narinder Singh and Parbatbhai Aahir (supra), it was held that it was

not in every case where the complainant had entered into the compromise with

the accused that the prosecution would not end in conviction. Such observation

would be presumptive and in a given case the prosecution would be able to

prove the guilt by leading cogent evidence and examining other witnesses

APL709.20..odt 30/48

especially when the dispute was not a commercial transaction and/or of civil

nature and/or was not a private wrong. A distinction was again made between

offences not against the society not having social impact and family/matrimonial

disputes. The order passed by the High Court accordingly was set aside. This

decision thus indicates that quashing of first information report registered under

Section 307 read with Section 34 of the Penal Code even prior to conviction was

not permitted on the ground of settlement.

Reference however would have to be made to the decision in Bitan

Sengupta and anr. (supra) wherein the accused was convicted under Section

498-A of the Penal Code. An appeal filed before the Sessions Court came to be

dismissed. However, during the pendency of the appeal, the parties arrived at a

compromise and on that basis mutual divorce under Section 28 of the Special

Marriage Act, 1954 came to be granted. The order of the Sessions Court was

challenged by filing revision application before the High Court but the same was

however dismissed. Before the Hon'ble Supreme Court, it was pointed out that

the parties had settled the matter and that grievances between them did not

survive. In these circumstances and by following the spirit of the law laid down

in B.S.Joshi (supra), it was observed that the High Court ought to have accepted

the settlement and compounded the offences. The appeal was accordingly

allowed and the order of conviction was set aside. As noted above, the

conviction was under Section 498-A of the Penal Code and it was a matrimonial

dispute between the parties.

23. Basing an acquittal solely on the ground that the complainant/victim

and the accused have settled the dispute post-conviction would also result in

infraction of Section 386 of the Code. In Amar Singh Vs. Balwinder and ors.

APL709.20..odt 31/48

(2003) 2 SCC 518 the Hon'ble Supreme Court referred to the scope of powers

of the appellate Court especially under Section 386 of the Code. It was held that

it was mandatory for the appellate Court to peruse the record which would

necessarily mean the statement of witnesses and in a given case the testimony of

eye witnesses. Perusal of the record has therefore been found to be mandatory

more so when the judgment of conviction has to be reversed by the appellate

Court. Moreover, the convicted accused has an opportunity to have the stigma

of conviction erased in the appeal.

The law of the land is therefore clear that compromise entered into

after conviction of the accused for a non-compoundable offence cannot by itself

result in acquittal. Such compromise can be taken into consideration while

imposing appropriate sentence on the accused. Thus if an appeal challenging

conviction for a non-compoundable offence cannot be allowed only because the

parties have compromised amongst themselves and the order of conviction

cannot be set aside on that count, such result cannot be obtained in proceedings

under Section 482 of the Code on similar grounds. It is well settled that what

cannot be achieved directly cannot be permitted to be achieved indirectly.

Moreover, we are here concerned with exercise of discretionary power under

Section 482 of the Code and surely discretion cannot be exercised to attain such

result which is impermissible to be granted in a statutory appeal/revision.

Expression "criminal proceedings" :

24. The expression "criminal proceedings" has been used by the Hon'ble

Supreme Court in Gian Singh and Narinder Singh (supra). There was some

debate as to the true import of this expression namely, whether the same should

be restricted to proceedings before the trial Court prior to conviction or it would

APL709.20..odt 32/48

extend to the entire proceedings till they attained finality. It is however not

necessary to labour much on this aspect especially in the light of the judgment of

the Constitution Bench of the Hon'ble Supreme Court in Narayan Row and ors.

Vs. Ishwarlal Bhagwandas and ors. AIR 1965 SC 1818. While examining the

expression "civil proceedings" within the meaning of Article 133(1) (c) of the

Constitution of India, it was observed that while the expression "civil

proceedings" covers all proceedings in which a party asserts the existence of a

civil right conferred by civil law or by statute and claims relief for breach

thereof, a criminal proceeding on the other hand is ordinarily one which if

carried to its conclusion may result in imposition of sentences such as death,

imprisonment, fine or confiscation of property. It is thus clear that what is

contemplated is proceedings "if carried to its conclusion". This therefore clearly

indicates that criminal proceedings would not be limited to proceedings before

the trial Court but would include the entire proceedings till its final culmination.

Law laid down in Kiran T. Ingale and Abasaheb Yadav Honmane :

25. It would be necessary to refer to the decision of the Division Bench

in Kiran T. Ingale (supra) especially in view of the fact that while answering the

reference made to the Division Bench, it was held therein that even in cases

arising after conviction inherent powers could be exercised and criminal

proceedings could be quashed. The facts leading to the said reference were that

the petitioner therein and the first respondent were husband and wife. In

proceedings initiated under Section 498-A of the Penal Code the petitioner came

to be convicted. In appeal the dispute between the parties came to be settled

and they separated by obtaining divorce by mutual consent. The first respondent

APL709.20..odt 33/48

agreed not to press for the petitioner's conviction. The appellate Court

maintained the order of conviction and gave benefit of the provisions of the

Probation of Offenders Act, 1958 to the petitioner. The petitioner preferred a

revision application challenging the order of conviction. The learned Single

Judge after observing that the decision of the Hon'ble Supreme Court in

B.S.Joshi (supra) was not an authority to hold that offence under Section 498-A

of the Penal Code was a compoundable offence, referred the matter to the

Division Bench. The Division Bench while answering the second question

referred to it as to whether it was open for the High Court to quash the criminal

proceedings in exercise of inherent powers in a case which had ended with an

order of conviction after trial held that conviction by the trial Court is not the

end of the matter and the appeal therefrom is a continuation of the proceedings.

Even if a revision application is filed and the conviction is maintained, altered or

reduced then the High Court in revision has the power to pass an effective order

in accordance with the judgment of the Hon'ble Supreme Court in B.S.Joshi

(supra). When an appeal or revision application is filed against an order of

conviction, the same does not attain finality and all issues are open before the

High Court. The Division Bench held that even in cases arising after conviction

inherent powers could be exercised and criminal proceedings could be quashed.

It further held that the decision in B.S.Joshi (supra) gave power to the High

Court to permit compounding of matrimonial offences and the High Court also

had the power to quash criminal proceedings or the first information report or

complaint. The reference was answered in the aforesaid terms.

26. It is to be noted that the reference in Kiran T. Ingale (supra)

principally arose pursuant to a challenge to the order of conviction under

APL709.20..odt 34/48

Section 498-A of the Penal Code and the effect of settlement thereafter. Relying

upon the decision in B.S.Joshi (supra) wherein it was held that when

matrimonial disputes which had increased considerably were resolved by either

of the parties and thereafter a joint prayer was made for quashing the criminal

proceedings filed under Sections 498-A and 406 of the Penal Code, the Division

Bench held that such prayer could not be declined on the ground that the

offences in question were non-compoundable. Issue no.2 considered by the

Division Bench was with regard to exercise of inherent powers for quashing

criminal proceedings that had resulted in conviction has to be understood in the

aforesaid context. No doubt, in matrimonial cases on a settlement being entered

into between the parties post- conviction, the High Court in exercise of

jurisdiction under Section 482 of the Code can always pass appropriate orders

which could also include an order for quashing the criminal proceedings that

have resulted in conviction of a party. The ratio of the decision in Kiran T. Ingale

(supra) has to be understood in the context that inherent powers under Section

482 of the Code can be exercised for quashing criminal proceedings at any stage

especially those arising out of matrimonial disputes. It is not the ratio of the

said decision that even on conviction for a non-compoundable offence which is

of a serious nature or an offence which is against the society at large criminal

proceedings can be quashed only on the ground that the parties meaning the

accused who has been convicted and the informant/claimant have settled their

dispute which could by itself result in an order of acquittal. We therefore clarify

that the ratio of the judgment of the Division Bench in Kiran T. Ingale (supra) is

to the aforesaid effect and same should not be read to mean that in criminal

proceedings arising out of serious offences or offences against the society such

APL709.20..odt 35/48

powers could be invoked under Section 482 of the Code by accepting such

settlement and setting aside the order of conviction.

27. In Abasabeb Yadav Honmane (supra) the Full Bench of this Court

considered the scope of inherent powers under Section 482 of the Code so as to

permit the compounding of offences other than the offences punishable under

Section 498-A of the Penal Code and particularly offences punishable under

Sections 306, 307, 328, 376, 406 and 495 of the Penal Code. The law laid down

by the Hon'ble Supreme Court in B.S.Joshi (supra) was sought to be explained

by the Full Bench coupled with another question as regards the scope of power

to be exercised under Section 482 of the Code being restricted only to the trial

stage or if available even at the appellate stage. The Full Bench while

answering the aforesaid questions noticed that the power to compound offences

and the power to quash criminal proceedings was distinct and different. These

powers operate in different spheres. While the power to compound offences was

a statutory power granted by Section 320 of the Code, the power to quash a first

information report or criminal proceedings under Section 482 of the Code found

its source from Judge made law. It was reiterated that the powers under Section

482 of the Code were not limited or affected by the provisions of Section 320 of

the Code and the offences that were not compoundable under Section 320 of the

Code could not be permitted to be compounded in exercise of powers under

Section 482 of the Code. While emphasizing the wide magnitude and

ramification of the powers under Section 482 of the Code, it was stated that

such powers had to be exercised sparingly and with caution. The purpose of

passing any order in its inherent jurisdiction ought to be confined to one of the

three categories stated in Section 482 of the Code. It was clarified that the

APL709.20..odt 36/48

judgment of the Hon'ble Supreme Court in B.S.Joshi (supra) did not give any

power to the High Court to compound non-compoundable offences even if they

related to matrimonial offences. The power to compound could be exercised at

the trial stage or even at the appellate stage subject to the conditions stipulated

by Section 320 of the Code being satisfied.

From the aforesaid judgment of the Full Bench it becomes clear that

non-compoundable offences cannot be compounded in exercise of inherent

power under Section 482 of the Code. The power of compounding can be

exercised at any stage of the criminal proceedings but in accordance with the

provisions of Section 320 of the Code. Though it was urged by Shri A.S.

Mardikar, learned Senior Advocate that after the decision in Abasaheb Yadav

Honmane (supra) it was not necessary to again refer Question (A) to the larger

Bench, we are not in a position to accept that contention. Question (A)

specifically pertains to exercise of power under Section 482 of the Code in a

situation where the convict and the victim/complainant have arrived at

settlement after the conviction of the convict. That question was not considered

by the earlier Full Bench and hence the same would have to be answered in the

present reference.

28. We may now refer to some decisions of this Court wherein the

prayer for quashing of the criminal proceedings was considered in view of

settlement of the dispute between the parties post-conviction. In Ashwini @

Rani Youraj Akurde vs. State of Maharashtra and another 2016(5) Mh.L.J. (Cri)

398 the applicant was convicted for the offence punishable under Section 307 of

the Penal Code. During pendency of the appeal challenging conviction before

the Sessions Court, the applicant and the non-applicant no.2 who was her

APL709.20..odt 37/48

husband amicably resolved their matrimonial dispute. The applicant thus

approached the High Court under Section 482 of the Code seeking quashing of

the criminal proceedings in view of such settlement. Reliance was sought to be

placed on the decisions in Gian Singh and Narinder Singh (supra). Speaking for

the bench, Shri A. S. Oka, J. (as his Lordship then was) observed that in the case

of Gian Singh (supra) the Honourable Supreme Court was dealing with criminal

proceedings that were pending before the trial Court in which there was no

conviction. Thereafter reference was made to the observations in paragraph 28

of the decision in Narinder Singh (supra). The observations in both the

decisions with regard to bleak possibility of conviction was also taken into

consideration. In this backdrop the Court refused to exercise power under

Section 482 of the Code for quashing the proceedings by observing that the

appellate Court would be required to consider the correctness of the finding of

guilt recorded by the trial Court.

Thus, despite settlement of disputes between the accused-wife and

the informant-husband the Court refused to quash the criminal proceedings

under Section 482 of the Code in view of conviction of the wife under Section

307 of the Penal Code. We find this to be the correct approach and we

respectfully concur with the same.

In Vasim Jafar Qureshi and others vs. State of Maharashtra and anr.

2014 ALLMR(Cri) 1426 two cross cases came to be filed resulting in conviction

under Section 307 of the Penal Code. The orders of conviction were challenged

in separate appeals that were pending. Both parties then filed applications

under Section 482 of the Code contending that in view of settlement of their

dispute the offences be permitted to be compounded. It was held that inherent

APL709.20..odt 38/48

powers could not be exercised to quash the prosecution merely because the

parties had chosen to settle their dispute. The Court found the settlement to be

motivated and being entered into only for the benefit of each party.

We find that the Court was justified in refusing to quash the

proceedings under Section 482 of the Code in view of the fact that conviction

was under Section 307 of the Penal Code and the appeals challenging the same

were pending. Similarly, in Sarjerao Shamrao Dhas vs. State of Maharashtra

2003(2) Mh.L.J. 235 the applicant was convicted under Section 307 read with

Section 34 of the Penal Code. Despite subsequent compromise and the prayer to

quash the proceedings the learned Single Judge refused to exercise jurisdiction

under Section 482 of the Code for setting aside the conviction. Instead the

conviction was maintained and the sentence was reduced to that which had

been undergone by the applicant.

Similar questions considered by the Punjab and Haryana High Court :

29. Shri P.R.Agrawal, learned Advocate placed on record decisions of the

Punjab and Haryana High Court wherein the Court had an occasion to deal with

a similar issue with regard to the effect of compromise and exercise of power

under Section 482 of the Code to quash a first information report. In Dharambir

(supra) the question with regard to power of the High Court to quash a first

information report under Section 482 of the Code in view of compromise

between the parties was considered by the Full Bench of that High Court. Two

learned Judges were of the view that there was no provision of law conferring

power on the High Court to either quash the prosecution or permit

compounding of offences which were not declared by the legislature to be

compoundable. The only exception was with regard to matrimonial disputes in

APL709.20..odt 39/48

view of the decision in B.S.Joshi (supra). The third learned Judge however held

that the power of the High Court to quash a first information report in non-

compoundable offences could not be limited to matrimonial disputes alone.

There could not be any specific category where the Court could or could not

quash a first information report in a non-compoundable offences under Section

482 of the Code.

Thereafter in Kulwinder Singh and ors. (supra) a larger Bench of five

learned Judges proceeded to re-examine the said issue and correctness of the

decision of the Full Bench in Dharambir (supra). It was held that the majority

view in Dharambir (supra) was not correct and that the minority view holding

that there could never be any hard and fast category that can be prescribed to

enable the Court to exercise its power under Section 482 of the Code was correct

and that the only principle was the one which had been incorporated in Section

482 itself meaning to prevent the abuse of the process of any Court or to secure

the ends of justice.

Yet again in Sube Singh and anr. (supra) a Division Bench of the said

High Court was called upon to answer the question as to whether criminal

proceedings could be quashed under Section 482 of the Code when the accused

was found guilty and had been convicted by the trial Court after which appeal

was pending before the Sessions Court. The Division Bench held that the

magnitude of inherent jurisdiction exercisable by the High Court under Section

482 of the Code so as to prevent the abuse of the process of law or to secure the

ends of justice was wide enough to include the power to quash proceedings in

relation to not only non-compoundable offences notwithstanding the bar under

Section 320 of the Code, but such power could be exercised at any stage of the

APL709.20..odt 40/48

proceedings subject to the aspect that there was no express bar and invoking of

such power was fully justified on the facts and circumstances of the case.

30. An apprehension was expressed by the prosecuting agency that

accepting compromise after conviction for a non-compoundable offence that

could result in acquittal of the convict was likely to be misused and would also

give scope to mischief. This apprehension expressed by the State cannot be said

to be misplaced. The timing of such compromise is an important factor which

has been noticed even by the Hon'ble Supreme Court in Narinder Singh (supra).

There is always possibility of the accused taking a chance at the trial and only

after conviction making an attempt to come forward to seek to settle his dispute

with the informant/complainant. The Hon'ble Supreme Court has thus in

paragraph 29.7 of the decision in Narinder Singh (supra) observed that mere

compromise between the parties should not be a ground to accept the same

resulting in acquittal of the offender who has already been convicted by the trial

Court. It thus appeals to logic that post-conviction compromise by itself is not

sufficient to acquit the convict of the offence that has been held to be proved to

have been committed by him by the trial Court. Yet another aspect that has been

taken note of by the Hon'ble Supreme Court in Ramesh Vs. State of Haryana

(2017) 1 SCC 529 is the culture of compromise. It was noted that it had

become a common phenomenon and almost a regular feature of witnesses

turning hostile in criminal cases. It was observed that during the trial

compromise acts as a tool in the hands of the defence lawyers and the accused

pressurise the complainants/victims to change their testimonies in a Court room.

Though these observations were made in the context of lack of any witness

protection programme the same cannot be ignored when the issue pertains to

APL709.20..odt 41/48

seeking to acquit the convict only on the ground of he having entered into a

compromise with the informant/complainant after his conviction.

31. We also find the reference made to Section 75 of the Penal Code by

Shri Yash Venkatraman, learned Advocate to be relevant in this context. Section

75 of the Penal Code prescribes for enhanced punishment for certain offences

under Chapter XII or Chapter XVII after previous conviction. The intention is

therefore to impose enhanced punishment if an accused is found guilty for a

subsequent offence. Accepting compromise and setting aside the judgment of

conviction could in a given case render the operation of Section 75 of the Penal

Code impossible in case of a subsequent conviction of the same accused. If an

earlier conviction is set aside on the ground of compromise there would be no

occasion to impose enhanced punishment under Section 75 of the Penal Code on

a subsequent offence being committed by the same accused.

We also find that the reference to the reformative theory sought to

be espoused by some learned Advocates to be not very relevant while answering

the question as referred. The theory of deterrence/reformation is a part of

sentencing policy and the same would come into play when the Court proceeds

to impose appropriate sentence after finding the guilt of the accused to be duly

proved. It would be for the Court imposing the sentence to take into

consideration the principles of the deterrent/reformative theory in the facts of

the case. Similarly reference to the 327 th Report of the Law Commission and its

recommendation with regard to increasing the number of compoundable

offences would not be very relevant in the present context. As long as the

recommendations as made by the Law Commission are not accepted by the

legislature and brought on the statute book, the Courts would be solely guided

APL709.20..odt 42/48

by the provisions of Section 320 of the Code as it stands. At the highest the said

reports merely have recommendatory value and nothing more as the Court is not

empowered to amend the provisions of Section 320 of the Code so as to include/

exclude any offence from the enumerated list of compoundable offences.

32. Shri A.S.Mardikar, learned Senior Advocate sought to invoke the

principle of stare decisis to urge that since this Court had been entertaining

applications under Section 482 of the Code wherein a compromise was entered

into between the victim/complainant and the accused even after conviction this

Court should be slow in holding against that practice. We have noted above the

consistent line of decisions of the Hon'ble Supreme Court wherein it has been

held in clear terms that settlement or compromise by itself cannot be a ground

for setting aside conviction for a non-compoundable offence. In fact, even in

offences that are of a private nature and not having a serious impact on society,

the Hon'ble Supreme Court has maintained the conviction of the accused but has

reduced the sentence as imposed. If jurisdiction was being exercised under

Section 482 of the Code by this Court in some cases but such exercise of

jurisdiction was not in accord with the law of the land such practice cannot be

saved by applying the principle of stare decisis. While applying the said

principle, binding precedents on this Court cannot be ignored or given a go-by

lest it may result in not following the law of the land. The said submission

therefore does not deserve acceptance.

33. While answering Question (A) we may observe in the light of the

settled legal position as under :

At the conclusion of the criminal trial the Court on finding the

APL709.20..odt 43/48

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 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

APL709.20..odt 44/48

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.

QUESTION (B) :

34. In the order of reference dated 29.10.2020 the Division Bench has

posed a question as to whether in criminal cases wherein offences under

Sections 307, 354-A, 354-B of the Penal Code and like offences are involved as

well as cases having economic flavour but which have tendency to affect large

section of the society which are otherwise non-compoundable and have resulted

in conviction could be considered as falling in the category of criminal cases

APL709.20..odt 45/48

having predominantly civil flavour especially when these were crimes against the

society and settlement between the accused and the victim ought to be

considered as not being relevant and material. The Division Bench then found

itself not in a position to agree with the proposition that in cases that have led to

conviction of the accused after due trial, an application for settlement between

the accused and the complainant/victim could be entertained and the conviction

itself could be quashed. It is in the aforesaid backdrop that Question (B) has

been framed which reads thus :

Question (B) : Whether the broader principles/parameters as set out in Gian Singh vs State of Punjab and another (2012) 10 SCC 303, Narinder Singh vs. State of Punjab (2014) 6 SCC 466 and Parbatbhai Aahir and others vs. State of Gujrat (2017) 9 SCC 641 have been correctly applied in deciding Udhav Kisanrao Ghodse, Ajmatkhan Rahematkhan and Shivaji Haribhau Jawanjal ?

It is a settled position of law that a reference to a larger Bench is on

a question/principle of law. The larger Bench has to take into consideration the

appropriate principle of law that would be applicable and it is not concerned

with the actual outcome of the proceedings that have led to the reference in

question. In this context it would be apposite to refer to the observations in

paragraphs 12 and 13 of the decision in Gopakumar B. Nair (supra) while

explaining the basis on which the larger Bench has to answer the reference as

made. It has been observed thus :

"12. Reference of a case to a larger Bench necessarily has to be for a reconsideration of the principle of law on which the case has been decided and not the merits of the decision. The decision rendered by any Bench is final inter parties, subject to the power of review and the curative power. Any other view would have the effect of conferring some kind of an appellate power in a larger Bench of this Court which cannot be countenanced. However, the principle of law on which the decision based is open to reconsideration by a larger Bench in an appropriate case. It is from the aforesaid perspective that the

APL709.20..odt 46/48

reference in Gian Singh has to be understood, namely, whether quashing of a non-compoundable offence on the basis of a compromise/settlement of the dispute between the parties would be permissible and would not amount to overreaching the provisions of Section 320 of the Code of Criminal Procedure. In fact, this is the question that was referred to the larger Bench in Gian Singh and not the merits of the decision in Nikhil Merchant.

13. The decision in Gian Singh holding the decision rendered in Nikhil Merchant and other cases to be correct is only an approval of the principle of law enunciated in the said decisions i.e. that a non-compoundable offence can also be quashed under Section 482 CrPC on the ground of a settlement between the offender and the victim. It is not an affirmation, for there can be none, that the facts in Nikhil Merchant justified/called for the due application of the aforesaid principle of law. Also, neither Nikhil Merchant nor Gian Singh can be understood to mean that in a case where charges are framed for commission of non-compoundable offences or for criminal conspiracy to commit offences under the PC Act, if the disputes between the parties are settled by payment of the amounts due, the criminal proceedings should invariably be quashed. What really follows from the decision in Gian Singh is that though quashing a non-compoundable offence under Section 482 CrPC, following a settlement between the parties, would not amount to circumvention of the provisions of Section 320 of the Code, the exercise of the power under Section 482 will always depend on the facts of each case. Furthermore, in the exercise of such power, the note of caution sounded in Gian Singh (para 61) must be kept in mind. This, in our view, is the correct ratio of the decision in Gian Singh.

It is thus clear that the larger Bench is necessarily concerned only

with the principle of law or question of law referred to it for decision and it is

not required to go into actual merits of the decision. It is one thing to say that

there is disagreement with the principle of law on the basis of which an earlier

decision was rendered and it is another thing to seek to examine if such

principle of law has been correctly applied in the given case. Whether the

principle of law/provision of law has been correctly applied in deciding a

particular case or not would be the province of an appellate forum. Thus while

taking note of the disagreement as expressed by the Division Bench in Maya

APL709.20..odt 47/48

Sanjay Khandare and another(APL No.709/2020) while referring the questions

framed to a larger Bench, we do not find it necessary to individually examine the

decisions rendered in Udhav Kisanrao Ghodse, Ajmatkhan Rahematkhan and

Shivaji Haribhau Jawanjal (supra) to determine whether the

principles/parameters as set out in Gian Singh, Narinder Singh, Parbatbhai

Aahir (supra) have been correctly applied or not.

It is however seen that in Uddhav Kisanrao Ghodse (supra) the

Court proceeded to permit the parties to compound offences punishable under

Section 354 of the Penal Code. In Ajmatkhan Rahematkhan (supra) the parties

were permitted to compound offences under Sections 354 and 452 of the Penal

Code. Such permission to compound non-compoundable offences would be

against the law laid down by the Full Bench in Abasaheb Yadav Honmane

(supra) which has re-affirmed the legal position in that regard. It may be noted

that one of the issues decided by the Division Bench in Shivaji Haribhau

Jawanjal (supra) was with regard to exercise of powers under Section 482 of the

Code for quashing criminal proceedings post-conviction of the accused. We find

no difficulty in recognizing such power as held in Kiran T. Ingale (supra), subject

to the limitations as expressed while answering Question(A). However, it is

found in Shivaji Haribhau Jawanjal (supra) that the judgment of conviction

passed by the learned Magistrate under Sections 354, 452, 323 and 506 of the

Penal Code and confirmed in appeal by the Sessions Court has been set aside

while accepting the compromise. In Criminal Application (APL) No.430/2019

(Sandip Ramdas Ravekar Vs. State of Maharashtra) decided on 28.07.2020 to

which one of us (A. S. Chandurkar, J.) was a party, the decision in Shivaji

Haribhau Jawanjal (supra) was followed and the conviction of the accused

APL709.20..odt 48/48

under Sections 354, 452 read with Section 323 of the Penal Code was set aside

in view of settlement of disputes between the parties. Since we have held that

compromise by itself is not sufficient to set aside the order of conviction for a

non-compoundable offence, setting aside the order of conviction as directed is

contrary to the decision in Surendra Nath Mohanty and another (supra).

Question (B) stands answered accordingly.

Before concluding we wish to place on record our sincere

appreciation for the efforts taken by all the learned counsel while assisting the

Court in answering the reference.

The Criminal Application be placed before the Division Bench for its

adjudication on merits.

(N.B.SURYAWANSHI)                   (VINAY JOSHI)       (A.S.CHANDURKAR)
    JUDGE                              JUDGE                   JUDGE




Andurkar..