Navrang Pal And Ors. vs State
2005 Latest Caselaw 254 Del

JUDGMENT

Manju Goel, J.

1. Law is stable but not static. Law has to evolve from stage to stage. The evolution of law is occasioned every time there is a need to grow out of the shackles of norms or views which in the changed scenario do not provide remedy for a situation which is crying for one.

2. The Code of Criminal Procedure, 1973 (in short the `Code') as also its predecessor the Code of Criminal Procedure, 1898 recongised the rights of the waring parties in a criminal litigation to settle their disputes without trial and the right of the accused to be acquitted on the complainant agreeing to such a decision. This right, however, was qualified by categorising certain matters as compoundable without the permission of the court and other offences which could be compounded only with the permission of the court. This was available in Section 320 of the Code. The offences which are mentioned in Section 320 of the Code, if compounded results in an order of acquittal. The power can be exercised by the trial court both by the court of Magistrate or of Sessions. The question that has arisen is whether the High Court by virtue of its power recognised in Section 482 of the Code can quash the proceedings in a criminal case emanating from a complaint regarding a non-compoundable offence.

3. The point raised is not new. Two recent decisions one of the Supreme Court and the other of a Five-Judge Bench of this Court have already ruled on it. The judgment of the Supreme Court is pronounced in the case of B.S. Joshi and Ors. v. State of Haryana and Anr. . The case before the Supreme Court was one under Sections 498-A/406 of the Indian Penal Code. The parties to the dispute were husband and wife. The Supreme Court in this judgment went into the scope of the provisions of Section 482 of the Code and held that if for the purpose of securing the ends of justice quashing of FIR becomes necessary, Section 320 would not be a bar to the exercise of power for quashing. It, however, hastened to add that the court would decide whether to quash the FIR or not, depending upon the facts and circumstances of each case. It, thus, held that in a suitable case on the compromise of the parties, the High Court could quash a criminal proceeding on a complaint in a non-compoundable case and that Section 320 of the Code could not limit or affect the powers under Section 482 of the Code.

4. The Five-Judge Bench of this court followed this decision in the case of Ramesh Kumar v. State . The question had been referred to the Five-Judge Bench in view of an earlier Full Bench decision of this Court in the case of Gurcharan Singh v. State reported as 2002 (1) A.D. (Delhi) 576 in which it was held that a mere amicable settlement of a matrimonial dispute was no ground to allow the parties to compound the offence which is non-compoundable. The High Court observed that the decision of the Apex Court in the case of B.S.Joshi (Supra) squarely answered the question and that the decision of this Court in the case of Gurcharan Singh (Supra) stood over-ruled.

5. Despite these two recent rulings, Shri Pawan Sharma, appearing for the state, submits that the FIR in the present case cannot be quashed and power under Section 482 of the Code cannot be used for quashing the complaint although the parties have compromised.

6. The present matter is not a matrimonial case. The FIR sought to be quashed is in respect of an offence punishable under Section 336/427/506/34 IPC. The disputing parties were neighbours. The FIR says that the accused was intending to dispossess the complainant from his property at No.BE-298, Street No.5, Hari Nagar and on the date of the offence he appeared at the property and threatened to kill. In the process of the offence, the accused also, allegedly, threw bricks and stones and fired shots probably to scare. In the petition under Section 482 of the Code it is contended that on account of intervention of the common neighbours the parties have sorted out their differences and that there is no grievance left and in this situation if the FIR is allowed to continue the petitioners would be put to an unnecessary harassment and also would have to undergo the agony of trial.

7. The substantial justice is the end for which the procedural law has to be pressed into service. The interest of justice is peace and harmony in society. This interest cannot be sacrificed at the alter of procedural law. The procedure, according to the state's counsel, requires that once an FIR is lodged in a non-compoundable offence and the process of law has been set into motion no provision of the Code can stop the process till the end of the case either in acquittal or conviction, although thereby the peace and harmony in the society is destroyed and the acrimony between the parties is increased.

8. There is no denying the fact that justice has to be rendered as per the procedural law laid down by the court. The learned state counsel submits that compounding of an offence having been categorically provided for in Section 320 of the Code, it follows that those not named in the Section cannot be compounded and that this bar cannot be overcome by exercising the inherent power of the court. He has cited rulings of the Supreme Court and of this High Court to assert his view that inherent powers cannot override the express provisions of law and that the inherent powers cannot be invoked if there is any specific bar. In a quick run down of some of the judgments which go very close to the view asserted by him are those in Dharampal and Ors. v. Smt.Ramshri and Ors. ; Palaniappa Gounder v. The State of Tamil Nadu and Ors. ; State of Orissa v. Ram Chander ; Satya Narayan Sharma v. State of Rajasthan ; Rajinder Prasad v. Bashir and Ors. reported as 2001 III AD (Cr.) SC 384; State of Kerala v. M.M. Manikantan Nair reported as 2001 (2) Crime 226 SC; State through S.P., New Delhi v. Ratan Lal Arora .

9. It is not necessary to burden this judgment with a restatement of the rulings given in these cases for none of them actually answers the point in issue, although these judgments go into the question whether the inherent powers can be invoked to maintain a second revision when there is a specific bar to review or to entertaining a petition when the regular relief is barred by limitation etc. The interaction between the provisions of Section 482 and Section 320 of the Code is not the subject matter in any of these judgments.

10. The learned state counsel will like this court to hold that the judgment of the Supreme Court in the case of B.S.Joshi (Supra) is per incuriam. The least that can be said about this contention is that it is based upon a total misinterpretation of the term "per incuriam". The submissions of Mr.Pawan Sharma cannot be accepted. Seven previous judgments of the Supreme Court including that of State of Haryana v. Bhajan Lal reported as 1992 Supplement (1) SCC 335 relied upon by state have been scanned and analysed before this judgment has ruled that Section 320 does not lay down a ban against using the power under Section 482 of the Code for quashing an FIR or other criminal proceedings.

11. It has to be said here that the list of the categories of cases which can be quashed as given in the judgment of Bhajan Lal (Supra) are by way of illustrations. The categories or cases given were not exhaustive. One previous judgment in which the prayer for compounding a non-compoundable offence was made before the Supreme Court was that of Surendra Nath Mohanty and Anr. v. State of Orissa reported as 1999 III AD (Cr.) SC 21 in which the Supreme Court ruled that compounding was not possible in a case under Section 326 IPC but in view of the amicable settlement between the parties, the court reduced the sentence to the period undergone. That was, however, in respect of the compounding whereas the question raised in this case is one of quashing the very FIR.

12. Even otherwise, this court lacks the jurisdiction of ignoring a Supreme Court judgment on the ground that the judgment is `per incuriam'. Further this Court having followed it by a Five-Judge Bench, there is no scope to again get into the question afresh.

13. In the given facts and circumstances of this case, I think in the interest of justice the inherent powers of this Court should be exercised for quashing the proceedings. Hence the FIR No.95/99 under Sections 336/427/506/34 IPC registered at police station Hari Nagar is hereby quashed.