Anand Jain & Ors. vs State
2012 Latest Caselaw 646 Del

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*   IN THE HIGH COURT OF DELHI AT NEW DELHI

+            CRL.APPEAL No.64/2012

%            Judgment delivered on: 31st January, 2012

ANAND JAIN & ORS.                     ..... Appellants
                                 Through: Mr. Mohit Mathur and
                                 Mr. Shardul Singh, Advs.

                        versus

STATE                                    ..... Respondent
                                 Through: Mr. Naveen Sharma, APP
                                 for the State.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

1. With the consent of both the parties, the instant appeal is taken

up for disposal.

2. Vide the instant appeal, the appellants has sought to set aside the

judgment and order on sentenced dated 22.09.2011 and 27.09.2011

respectively passed by learned Additional Sessions Judge, Rohini

Courts, Delhi, whereby the appellants have been convicted for offences

punishable under Sections 323/427 read with Section 34 of Indian

Penal Code, 1860 and, thereafter, were released on probation under the

Probation of offenders Act, 1958.

3. Learned counsel for the appellants has submitted that the above

mentioned two Sections ,i.e., 323/427 IPC are compoundable in nature,

and can be compounded even without the permission of the Court.

4. Since the cross FIR No. 136/2010 was recorded on the

complaint of appellant No. 1/Anand Jain under Sections

308/323/324/427 IPC and the appellants are the complainant in FIR

No. 137. Both the parties filed petitions before this court vide Criminal

M.C. 3120/2011 and Criminal M.C. 3121/2011 on 14.09.2011,

recording a mutual compromise and based thereon quashing the two

cross FIRs, wherein, notice was issued by this court vide its order

dated 19.09.2011.

5. This fact was brought by the appellants to the knowledge of the

learned Additional Sessions Judge, however, the learned Additional

Sessions Judge, without application of mind, arbitrarily convicted the

appellants vide impugned judgment dated 22.09.2011; whereas the said

case was committed to Sessions court on 21.09.2011.

6. It is submitted that the learned Additional Sessions Judge neither

herself considered the submissions made by the appellants nor allowed

them to compound the case which was otherwise compoundable in

nature, without the permission of the court nor waited the outcome of

the above mentioned, two petitions being filed before this court.

7. Learned counsel for the appellants submitted that this type of

order was passed in haste and seems to be arbitrary and without

bothering about the procedure prescribed in the Criminal Procedure

Code.

8. It is further submitted that admittedly, the charges were framed

under Sections 323/427 IPC read with Section 34 IPC against the

appellants. The trial court though recorded the statements of the

complainant PW1/Mahender Jain that they had compromised the

matter with the accused persons with due intervention of the

respectable members of the locality and their own Samaj and they do

not want to proceed further.

9. PW2/Padam Jain in his cross-examination had deposed that they

have compromised the matter with the appellants/accused persons with

due intervention of the Mohalla people and respectable of their Samaj

and they do not want to pursue the case further.

10. Despite the above mentioned statements, learned Additional

Sessions Judge convicted the appellants though the benefit of probation

was given to them.

11. Learned counsel for the appellants has submitted that though the

sentence of the appellants has been suspended by giving them the

benefit under Probation of Offenders Act, 1958, however, the

conviction remained to the detriment of the appellants.

12. The petitions referred above filed before this court, were

thereafter withdrawn since the learned Additional Sessions Judge has

passed this order in a haste with pre-determination that she wanted to

reach at a particular conclusion i.e. conviction of the appellants.

13. Learned APP on the other hand submitted that though notices

were issued in petitions filed for quashing before this court by the

appellants named above and the opposite party, however, vide order

dated 19.09.2011, no stay was granted by this court. In the absence of

any interim order, there was no bar to proceed further by the trial court.

But concedes that judicial propriety demands that the learned trial

court should have waited for the outcome of the abovementioned two

petitions filed in the High Court.

14. I am conscious about the directions issued by Hon'ble Supreme Court in the case of Sidhartha Vashistha @ Manu Sharma v. State, (2010) 6 SCC 1 that the higher Courts in exercise of their appellate or

original jurisdiction may find patent errors of law or fact or appreciation of evidence in the judgment which has been challenged before them. Despite this, what is of significance is that, the Courts should correct the error in judgment and not normally comment upon the Judge. The possibility of taking a contrary view is part of the system. The judicial propriety and discipline demand that strictures or lacerating language should not be used by the higher Courts in exercise of their appellate or supervisory jurisdiction. Judicial discipline requires that errors of judgments should be corrected by reasons of law and practice of passing comments against the lower courts needs to be deprecated in no uncertain terms. The individuals come and go but what actually stands forever is the institution.

15. Admittedly, the charges were framed against the appellants under Sections 323/427 Indian Penal Code, 1860 r/w Section 34 IPC. I note, the trial judge has recorded the statement of the complainant PW 1/Mahender Jain that they had compromised the matter with the accused persons with due intervention of the respectable members of the locality and their own Samaj and they do not want to proceed with the case further.

16. I further note, PW 2/Padam Jain in his cross-examination has deposed that they had compromised the matter with the accused persons with due intervention of the Mohallla people and respectable members of their Samaj and they do not want to pursue the case further. Despite that, the ld. Addl. Sessions Judge convicted the appellants while giving them benefit under the Probation of Offenders

Act, 1958. Thus, the conviction has been recorded in the credit of the appellants.

17. I note, the complainant side had told the Court that since the FIR No.136/2010 under Sections 308/323/324/427 Indian Penal Code, 1860 and the FIR No. 137/2010 under Sections 323/427 IPC were recorded against each other, therefore, both the parties filed petitions before this Court vide Crl.MC Nos. 3120/2011 and 3121/2011 on 14.09.2011 for quashing of the crossed FIRs as they have amicably settled all the disputes qua the aforesaid FIRs, wherein notice as issued by this Court vide its order dated 19.09.2011.

18. I further note, the ld. Addl. Sessions Judge arbitrarily convicted the appellants vide impugned judgment dated 22.09.2011 whereas the said case was committed to Sessions Court only on 21.09.2011.

19. Though, the ld. Trial judge could have proceeded with the matter in the absence of any stay granted by any superior Court, however, in my considered opinion, the judicial proprietary demands either to allow compounding at her level or wait for the outcome of the case filed before the superior Court. In the present case, since the offences were under Sections 323/427 Indian Penal Code, 1860, of compoundable nature without permission of the Court, as per Section 320 Cr.PC, therefore, the learned judge was bound to compound the same or should have waited till the outcome of the order of this Court. The High Court of Andhra Pradesh in the case of Chanda Papa Rao and Ors. V. State and Anr.,

in Crl. P. Nos. 4057 and 4705, 2002 (1) ALD (Crl.) 519, has held as under:-

"13. After going through the rulings and the arguments advanced before us, the question to be determined by us is whether the provisions contained Under Section 320, Cr.P.C. and the provisions contained Under Section 482, Cr.P.C. are synonymous ? Our answer is "no" for the following reasons : If the offence is compoundable, it can be compounded Under Section 320, Cr.P.C. For the purposes of compounding the offence, there must be a joint petition by the defacto complainant and the accused. More important feature of Section 320, Cr.P.C. is that the Court cannot refuse permission to the parties to compound the offence when they have expressed their willingness to compound the offence. Whereas the jurisdiction vested in the High Court Under Section 482, Cr.P.C. is much higher. While exercising the jurisdiction Under Section 482, Cr.P.C, the High Court has to use the power very sparingly and in an exceptional circumstances as laid down by the Supreme Court in a case reported in Smirikhia v. Dotley Mukherjee (supra). If the joint petition is filed by the defacto complainant and the accused for quashing the proceedings, the High Court cannot quash the proceedings only because the parties have settled the dispute. To give illustration, it can be said that if in a murder case the father of the deceased enters into a compromise with the accused and both of them file a petition Under Section 482, Cr.P.C. for quashing the proceedings against the accused, the powers cannot be used by the High Court as it is against the public policy and also immoral. In other words, it is to say that the

High Court has to exercise the powers very cautiously and sparingly."

20. Even where the offences are minor and after conviction, if the parties are willing to compound the same, that is permissible with the permission of the Court as held by the Kerala High Court in the case of Sudheer Kumar @ Sudheer v. Manakkandi M.K. Kunhiraman and Anr. in Crl. M.C. No.1540 of 2007(B), ILR 2008 (1) Kerela 159, as under:-

"There is no provision for compounding the offence after conviction without permission of or intervention from the court, whether the offence is compoundable, with or without permission as classified under Table I or Table II. This is because the compounding will have the effect of an acquittal and setting aside of conviction. Conviction, in the absence of appeal or revision, becomes a concluded matter. Sub-clauses 5 and 6 of Section 320 allows the compounding of offence after conviction, if appeal or revision is pending by the permission of the appellate court or revisional court as the case may be. If the case is committed for trial also, leave of the committal court is necessary for compounding. Once High Court confirms the conviction in revision, it cannot be interfered with by the High Court in view of the subsequent compounding out of court. There is no provision under Section 320 or any in the N.I.Act enabling the court to accept or permit the compounding after conviction has become final and no appeal or revision is pending against the conviction. Once the order of conviction is confirmed in revision, the revisional court cannot review or alter the conviction in view of the specific bar under Section

362. The above statutory bar of review cannot be

overreached by filing clarification petition, modification petition or a petition under Section 482 or by resorting to any other innovative methods. Mandate of Section 362 has to be obeyed in letter and spirit. We are of the opinion that inherent powers cannot be used to defeat the specific procedure prescribed in Code of Criminal Procedure It is not a device to overcome the specific bar under Section 362. An application for compounding offence filed after the conviction has become final, cannot be entertained. Once the appeal or revision has been finally disposed of by the High Court, there remains nothing pending. Further, if such an application is allowed, it will result in setting aside the judgment of the High Court. It cannot be done in view of express bar under Section 362, which permits correction in the judgment in respect of clerical or arithmetical errors only. Section 482 also cannot be invoked against the clear mandate of Sections 320 and 362. Once the compounding is accepted by the court, court cannot impose any sentence. Imposition of fine and ordering imprisonment in default of payment of fine, after acquitting the accused is foreign to criminal law. After acquitting a person he cannot be sentenced either with imprisonment or fine. That is not possible. Inherent jurisdiction cannot be used for sentencing a person by imposing a fine even after acquitting him, bye passing the statutory provisions. Justice can be administered only according to law. Imposition of fine is different form imposition of cost or compensation. We are of the opinion that, once the compounding is permitted, it will have the effect of an acquittal and no further imposition of fine or any type of sentence can be passed in view of Section 320(8)."

21. In addition, the Supreme Court in Shiji @ Pappu & Ors. v.

Radhika & Anr in Crl.Appeal No.2064/2011 decided on 14.11.2011 that the cases of non-compoundable nature can be compounded, certainly not after the conviction observing as under:-

"...... That being so, continuance of the prosecution where the complainant is not ready to support the allegations which are now described by her as arising out of some "misunderstanding and misconception"; will be a futile exercise that will serve no purpose. It is noteworthy that the two alleged eye witnesses, who are closely related to the complainant, are also no longer supportive of the prosecution version. The continuance of the proceedings is thus nothing but an empty formality. Section 482 Cr.P.C. could, in such circumstances, be justifiably invoked by the High Court to prevent abuse of the process of law and thereby preventing a wasteful exercise by the Courts below."

22. Therefore, keeping the above discussion and legal position into view, the judgments/orders dated 22.09.2011 and 27.09.2011 respectively are set aside. Consequently, case FIR No.137/2010 u/s 323/427 of IPC stands compounded.

23. The instant Crl. Appeal No. 64/2012 is accordingly allowed.

24. In view of above, Crl.M.B.No.115/2012 does not require further adjudication and stands disposed of as such.

25. No order as to costs.

26. Before parting with the instant case, keeping in view the directions issued by Hon'ble Supreme Court, inthe case of Sidhartha

Vashistha @ Manu Sharma v. State (supra), I am of the considered opinion that the concerned judicial officer requires some counselling. Recently also , I have come across a judgment/order passed by the same judicial officer, which was challenged in the case of S.B. Yadav v. State in Crl. Appeal No.666/2011 and found procedural lapses.

27. Therefore, I direct the registry of this Court to place this order before the Committee of Hon'ble Inspecting Judges for the year 2012 and the judgment passed in S.B. Yadav (supra) before the Committee of Hon'ble Inspecting Judges of the year 2011, so that the concerned judicial officer may be counselled accordingly.

SURESH KAIT, J

JANUARY 31, 2012 RS