C. Nagarju S/O Sh. Channanjappa, ... vs The State Nct (Th. Chief ...
2007 Latest Caselaw 1954 Del

JUDGMENT

V.B. Gupta, J.

1. The present petition has been filed under Section 482 CrPC, on behalf of petitioners, seeking quashing of FIR No. 285/2004 under Section 406/420/506 IPC, registered at P.S. Rajinder Nagar.

2. The brief facts, as alleged in the petition are that the complainant and his three friends approached the petitioners in the month of August, 2001 for seeking guidance regarding admission of their ward in a Dental College. Petitioners 2 and 3 assured the respondents to have the admission in Hassanabadh Education Trust in Hassan. After assurance of the petitioner No. ,3, the respondents deposited the fee by way of drafts for a sum of Rs. 90,000/- for each candidate in the Dental College Hassanabadh. The wards of the respondents thereafter took admission in some other college with their own efforts and when the respondents contacted the petitioners for refund of the fees, the same was not refunded by the petitioners. Thereafter the present FIR was filed.

3. It is stated that now the matter has been resolved between the parties and they have amicably settled all the disputes and the petitioners have paid a total sum of Rs. 4,10,000/- to respondents 2 to 5 and under these circumstances the present FIR should be quashed.

4. Notice was issued to the respondents.

5. I have heard the learned Counsel for the parties and have also gone through the record.

6. It has been contended by learned Counsel for the petitioners that since the matter has been amicably settled, the permission to compound the offence should be granted.

7. On the other hand, it has been contended by the learned Counsel for the respondent-State that the offence under Section 406 is not compoundable. It is further contended that two other cases are pending against petitioner No. 2 and 3, as such permission to compound should not be granted. In support of his contentions, learned Counsel for the State has cited decision of the Apex Court in Dhananjay @ Dhananjay Kumar Singh v. State of Bihar and Anr. 2007(1) Crimes 299 (SC).

8. Recently in Smt. Satnam Kaur and Ors. v. State 2007(1) JCC 361 the question arose before this Court was regarding compounding of offences under IPC which are non-compoundable and are treated as crime against society. It was held:

Section 320(1) of the Cr.P.C. provides that offences mentioned in the table there under can be compounded by the persons mentioned in the Column No. 2 of the table. Further, Sub-section (2) provides that offences mentioned in the table could be compounded by victim with the permission of the Court. No doubt, even in respect of non-compoundable offences, the High Court can exercise the power and quash criminal proceedings if for the purpose of securing ends of justice, quashing of those proceedings becomes necessary. Judgment of the Hon'ble Supreme Court in the case of B.S. Joshi and Ors. v. State of Haryana and Anr. , acts as guide for the High Court to determine whether to exercise the powers. under Section 482, Cr.P.C. in a given case or not. The Court held in that matter that there was no general proposition limiting power of quashing the criminal proceedings or FIR or complaint as vested in Section 482 or extraordinary power under Article 226 of the Constitution of India. Therefore, 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 of quashing. It is, however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power.

Thus, it is clear that while exercising the inherent power for quashing under Section 482, Cr.P.C., it is for this Court to consider whether it is expedient and in the interest of justice to permit the prosecution to continue.

The edifice of criminal law is based on the principle that crime committed against the particular person is the crime against the society as well. Though in that particular case, the immediate victim may be the person who is affected by the said crime. This is the genesis beyond Section 320, Cr.P.C. which makes only trivial crimes as compoundable treating those offences as the ones which can be settled between the parties. But other offences, which are non-compoundable, are treated as crimes against society and, therefore, normally the consent of the victim to compound those offences may not be of any use. Balance is sought to be maintained by the judgment of the Supreme Court in B.S. Joshi and Ors. v. State of Haryana and Anr. (Supra) by giving the power to the High Court even in such cases but with rider that there are special features which may be present in a particular case and may warrant in the interest of justice and as a rule of expediency to give quietus to those proceedings. Therefore, in facts and circumstances of a given case, High Court has to come to a conclusion that whether it is expedient or in the interest of justice to quash the proceedings in view of the settlement between the parties, notwithstanding, a general rule that it is an offence against the society.

9. In another decision of the Supreme Court in Bankat and Anr. v. State of Maharashtra , compounding of offence under Section 326 IPC was sought since the offence under Section 326 IPC was not compoundable. The High Court refused to grant permission to compound the same. On Appeal the Apex Court held that:

It was next submitted by learned Counsel for the appellants that the occurrence took place on 1.3.1993 and more than a decade has elapsed and in the meantime the parties have sorted out their differences, entered into compromise and, therefore, the High Court should have accepted the prayer for modification of the order.

It was further submitted that though the offence under Section 326 is not compoundable in terms of Section 320(9) of the Code of Criminal Procedure, 1973 (in short 'the Code') this Court can exercise jurisdiction under Article 142 of the Constitution and pass necessary orders. It was submitted that the benefit extended to the other co-accused persons should be made available to the appellants and the custodial sentence should have been reduced to the period already undergone.

It is vehemently contended by the learned Counsel for the appellants that as the dispute was amicably settled and the matter was compromised, the High Court ought to have granted permission to compound the offences and ought not to have convicted the appellants and imposed the sentence. For this purpose, reliance is placed upon the decisions of this Court in Ram Pujan v. State of U.P. and Mahesh Chand v. State of Rajasthan 1990 Supp SCC 681. As against this, learned Counsel for the respondent submitted that the offence under Section 326 IPC is not compoundable and the High Court has rightly rejected the application for compounding the same. He, for this purpose, relied upon the judgment of this Court in Ram Lal v. State of J and K after referring to Section 320(9) of the Code the Court observed that the decision in Mahesh Chand case was rendered per incuriam.

In our view, the submission of the learned Counsel for the respondent requires to be accepted. For compounding of the offences punishable under IPC, a complete scheme is provided under Section 320 of the Code. Sub-section (1) of Section 320 provides that the offences mentioned in the table provided there under can be compounded by the persons mentioned in column 3 of the said table. Further, Sub-section (2) provides that the offences mentioned in the table could be compounded by the victim with the permission of the court. As against this, Sub-section (9) specifically provides that 'no offence shall be compounded except as provided by this section'. In view of the aforesaid legislative mandate, only the offences which are covered by Table 1 or Table 2 as stated above can be compounded and the rest of the offences punishable under IPC could not be compounded.

Further, the decision in Ram Pujan case does not advance the contention raised by the appellants. In the said case, the Court held that the major offences for which the accused have been convicted were no doubt non-compoundable, but the fact of compromise can be taken into account in determining the quantum of sentence. In Ram Lal case the Court referred to the decision of this Court in Y. Suresh Babu v. State of A.P.

3. We gave our anxious consideration to the case and also the plea pout forward for seeking permission to compound the offence. After examining the nature of the case and the circumstances under which the offence was committed, it may be proper that the trial court shall permit them to compound the offence.

and held as under:(SCC p.214 para 3) We are unable to follow the said decision as a binding precedent. Section 320 which deals with 'compounding of offences' provides two Tables therein, one containing descriptions of offences which can be compounded by the person mentioned in it, and the other containing descriptions of offences which can be compounded with the permission of the Court by the persons indicated therein. Only such offences as are included in the said two Tables can be compounded and none else.

In the case of Y. Suresh Babu the Court has specifically observed that the said case 'shall not be treated as a precedent'. The aforesaid two decisions are based on facts and in any set of circumstances, they can be treated as per incuriam as pointed attention of the Court to Sub-section (9) of Section 320 was not drawn. Hence, the High Court rightly refused to grant permission to compound the offence punishable under Section 326.

We reiterate that the course adopted in Y. Suresh Babu and Mahesh Chand case was not in accordance with law.

The above position was elaborately indicated by a three Judge Bench of this Court in Surendra Nath Mohanty v. State of Orissa .

10. This decision of Bankat case has been followed in Dhananjay Kumar Singh's case (supra) as cited by learned Counsel for the State and it has been further held in Dhananjay Kumar Singh's case that:

We may, however, notice that in Badrilal v. State of M.P. (2005) 7 SCC 55 a Division Bench of this Court held as under:

A joint petition of compromise has been filed on behalf of the parties in which prayer has been made for recording the compromise. The offence under Section 307 IPC is not a compoundable one, therefore, compromise cannot be recorded, but at the same time it is well settled that while awarding sentence the effect of compromise can be taken into consideration. It has been stated that the appellant has remained in custody for a period of about 14 months and there is no allegation that he assaulted the deceased. In the facts and circumstances of the case, we are of the view that ends of justice should be met in case the sentence of imprisonment awarded against the appellant by the trial court and reduced by the High Court is further reduced to the period already undergone.

11. So keeping in view the peculiar facts and circumstances of the case, as petitioners 2 and 3, who are accused, are involved in other criminal cases, I do not find any ground to grant permission to compound the offence under Section 406 IPC and as such the present petition is not maintainable and the same is hereby dismissed.