Punna Sardar vs The State Of Jharkhand
2022 Latest Caselaw 3691 Jhar

                              1                        Cr. Appeal (SJ) No. 1088 of 2005



   IN THE HIGH COURT OF JHARKHAND AT RANCHI
               Cr. Appeal (SJ) No. 1088 of 2005
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(Against the judgment of conviction and order of sentence dated 30.06.2005 passed by the learned Sessions Judge, Seraikella- Kharsawan in Sessions Trial No. 58 of 2004, in connection with Seraikella P.S. Case No. 20 of 2004, corresponding to G.R. Case No. 167 of 2004 at Seraikella-Kharsawan, Jharkhand.)

Punna Sardar ... ... Appellant Versus The State of Jharkhand ... ... Respondent

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CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR

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For the Appellant : Mr. R.C.P. Sah, Advocate For the Respondent : Mr. Tapas Roy, Addl.P.P.

For the Informant : Mr. Samir Kumar Lall, Advcoate

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HON'BLE MR. JUSTICE NAVNEET KUMAR

Order No. 06: Dated: 14th September, 2022

1. This appeal is directed against the impugned judgment of conviction and order of sentence dated 30.06.2005 passed by the learned Sessions Judge, Seraikella-Kharsawan in Sessions Trial No. 58 of 2004, in connection with Seraikella P.S. Case No. 20 of 2004, corresponding to G.R. Case No. 167 of 2004 at Seraikella-Kharsawan, Jharkhand, whereby and where under the sole appellant was convicted for the offence punishable under sections 363 and 366-A the Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and further the appellant was sentenced to undergo rigorous imprisonment (hereinafter referred to as R.I.) for 7 years for the offence punishable u/s 366-A of IPC and further he was sentenced to fine of Rs. 1000/- (Rupees One Thousand only) and in default of payment of fine he was ordered to undergo S.I. for two months and further he was also sentenced to undergo R.I. for three years for the offence punishable u/s 363 of IPC and both the sentence were directed to run concurrently.

2 Cr. Appeal (SJ) No. 1088 of 2005

2. The prosecution story in short is that the informant Guruwa Sardar son of Late Bodoro Sardar of village Dungridih P.S. Seraikella, District- Seraikella-Kharsawan recorded his fardbeyan to S.I. Rajendra Tripathy, Officer -in-charge, Seraikella, P.S. on 10.03.2004 at 10 p.m. at Sini Chouk stating therein that yesterday on 09.03.2004 at about 2.30 p.m. his minor daughter Tuntun Sardarin aged about 14-15 years was missing from their house. They began to search her but could not find her anywhere. He further stated that Punna Sardar used to visit their house sometime and he was living with his uncle Shankar Sardar at village Gongadih which is adjacent to their village. Today also they began to search out her daughter and they met Punna Sardar at village Gongadih and enquired from him and he did not reply properly and tried to run away. However, after chase he was caught hold by the villagers and himself and on further enquiry he confessed that he abducted their daughter and has kept her at his house at village Bara Kunabera P.S. Rajnagar. Thereafter, the villagers Kunjo Sardar, Binod Sardar, Deoraj Sardar and himself were going to P.S. along with the accused who confessed his guilt before the villagers that he had taken his daughter to his house and seduced to marry her. He further stated that said Punna Sardar son of Sidu Sardar of village Kunabera had seduced and abducted his daughter on pretext of marriage and took her to Kunabera and kept her there and this fact he confessed before the villagers. This statement was recorded by the police, read over to him and finding it correct he gave his L.T.I. and witness Kunjo Sardar put his signature on the same.

3. On the basis of aforesaid Fardbeyan of the informant, a Seraikella P.S. Case No. 20/2004 was lodged on 11.03.2004 u/s 363, 366 of IPC against the accused person. Police took investigation of the case and on completion of the same submitted charge sheet. Cognizance was taken by the then C.J.M. and the case was 3 Cr. Appeal (SJ) No. 1088 of 2005

committed to the learned Sessions Judge, Seraikella- Kharsawan for trial. Charges against the accused were framed on 3rd July 2004 by Sessions Judge, Seraikella, to which he pleaded not guilty and further defence had taken the plea that the victim girl was a major and that the informant and his wife wanted to marry her with the accused but some dispute arose regarding terms and conditions of the marriage and for that he has been falsely implicated in this case. Further defence taken by the accused was complete denial of the occurrence by the accused.

4. The learned trial court after conducting the full-fledged trial passed the impugned judgment of conviction and order of sentence which is under challenge in this appeal.

5. Heard Mr. R.C.P. Sah, the learned counsel for the appellant, Mr. Samir Kumar Lall, learned counsel for the informant and Mr. Tapas Roy, learned Add.P.P. for the State.

Arguments advanced on behalf of the appellant

6. The learned counsel appearing on behalf of the P.W. 4 (Victim: Tuntun Sardarin) and the appellant jointly submitted that during the pendency of this appeal both the appellant and the victim girl (P.W. 4) had solemnized marriage and they are living as husband and wife. And due to said wedlock 3 children were born to them. The elder son is aged about 14 years and two daughters who are aged about 08 years and 06 years and all of them were living happily. And therefore, it is fairly submitted on behalf of both the parties that even if the offence under which the sole appellant is convicted for the offence punishable u/s 363 and 366-A of IPC is non-compoundable in nature, for the ends of justice let this appeal be allowed to be compounded for the substantive reason in the interest of the wife (victim girl P.W.-4) and their three children and they have placed their reliance upon the rulings of Hon'ble the Apex 4 Cr. Appeal (SJ) No. 1088 of 2005

Court where the circumstances have been set out to compound the offences which are non-compoundable in nature which are as under:

1. Narinder Singh & Ors. Vs. State of Punjab & Another reported in (2014) 6 SCC 466,

2. Yogendra Yadav & Ors. Vs. State of Jharkhand & Anr. reported in (2014) 9 SCC 653,

3. Gian Singh vs. State of Punjab & Anr. reported in (2012) 10 SCC 303 &

4. State of Madhya Pradesh vs. Laxmi Narayan & Ors.

Reported in (2019) 5 SCC 688

5. Ramgopal v. State of M.P. as reported in 2021 SCC OnLine SC 834

Arguments advanced on behalf of the State

7. On the other hand, learned Addl.P.P. for the State did not deny the fact that both the parties (the appellant and P.W. 4 Tuntun Sardarin) have married to each other and they have three children and now they are leading a happy married life although the sole appellant has been convicted for the offence punishable u/s 363 and 366-A of IPC which are non-compoundable in nature and the learned Addl.P.P. has submitted that therefore under the circumstances of this case and in the light of the rulings of Hon'ble Apex Court an appropriate order shall be passed.

Appraisal & Findings

8. Having heard the learned counsel for the parties, perused the record of this case including the lower court records and the compromise petition arrived at between both the parties filed on behalf of the both the appellant and victim girl P.W.4 (the wife of the appellant ) vide I.A. No. 7249 of 2022.

9. At the outset under the facts and circumstances of this case it is found that the sole appellant was convicted for the offence punishable u/s 363 and 366-A of IPC where there was an allegation against the sole appellant for abducting/kidnapping of the victim girl (P.W. 4) and also procuring her within the meaning of section 5 Cr. Appeal (SJ) No. 1088 of 2005

366-A of IPC. Now it has jointly been submitted on behalf of the appellant and the victim P.W. 4 that both the appellant and the victim girl has solemnized marriage and three children are born to them out of the said wedlock and, therefore, in this view of the matter, this Court proceeds to take into consideration the rulings of the Hon'ble Supreme Court in a number of cases where under the circumstances of the case even in a non-compoundable offence compounding of the case has been allowed on the basis of compromise, if the dispute is personal in nature and not affecting the society at large. The authorities of the Hon'ble Supreme Court in this regard are appreciated in the following cases as under:

1. Narinder Singh & Ors. Vs. State of Punjab & Another reported in (2014) 6 SCC 466,

2. Yogendra Yadav & Ors. Vs. State of Jharkhand & Anr. reported in (2014) 9 SCC 653,

3. Gian Singh vs. State of Punjab & Anr. reported in (2012) 10 SCC 303 &

4. State of Madhya Pradesh vs. Laxmi Narayan & Ors.

Reported in (2019) 5 SCC 688

5. Ramgopal v. State of M.P. reported in 2021 SCC OnLine SC 834

The Hon'ble Supreme Court in Gian Singh vs. State of Punjab & Anr. (2012) 10 SCC 303 laid down following principles:

"58. Where the High Court quashes a criminal proceeding having regard to the fact that the dispute between the offender and the victim has been settled although the offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor..............................."

59.xxx xxx xxx

60.xxx xxx xxx

"61. ...the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the 6 Cr. Appeal (SJ) No. 1088 of 2005

guideline engrafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court. 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 predominatingly 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."

These principles are subsequently reiterated in a number of cases. In State of Madhya Pradesh vs. Laxmi Narayan & Ors. (2019) 5 SCC 688 elaborating the principle the Hon'ble Supreme Court observed in para 15 as under:

"15.1. That the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences 7 Cr. Appeal (SJ) No. 1088 of 2005

under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves;

15.2. Such power is not to be exercised in those prosecutions which involved heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society;

15.3. Similarly, such power is not to be exercised for the offences under the special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender; 15.4. xxx xxxxxx 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 offender, 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."

Further in the case of Yogendra Yadav & Ors. Vs. State of Jharkhand & Anr. reported in (2014) 9 SCC 653 recapitulating the Gian Singh's case Principle (Supra) it has been observed as under :

"4. ---------- Needless to say that offences which are non- compoundable cannot be compounded by the court. Courts draw the power of compounding offences from Section 320 of the Code. The said provision has to be strictly followed (Gian Singh v. State of Punjab [(2012) 10 SCC 303). However, in a given case, the High Court can quash a criminal proceeding in exercise of its power under Section 482 of the Code having regard to the fact that the parties have amicably settled their disputes and the victim has no objection, even though the offences are non-compoundable. In which cases the High Court can exercise its discretion to quash the proceedings will depend on facts and circumstances of each case. Offences which involve moral turpitude, grave offences like rape, murder, etc. cannot be effaced by quashing the proceedings because that will have harmful effect on the society. Such offences cannot be said to be restricted to two individuals or two groups. If such offences are quashed, it may send wrong signal to the society.

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However, when the High Court is convinced that the offences are entirely personal in nature and, therefore, do not affect public peace or tranquility and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, it should not hesitate to quash them. In such cases, the prosecution becomes a lame prosecution. Pursuing such a lame prosecution would be waste of time and energy. That will also unsettle the compromise and obstruct restoration of peace.

As a matter of fact from the aforesaid propositions of law as propounded by the Hon'ble Supreme court in Gian Singh's case (Supra), Laxmi Narayan's case (Supra), and Yogender Yadav's Case (Supra) it is now well settled that the offences which are non- compoundable cannot be compounded by a criminal Court under the section 320 of the Cr.P.C. In spite of that there is a scope of compounding the offences by invoking inherent powers of the High Court vested under section 482 of Cr.P.C. to prevent abuse of the process of any court and/or to secure the ends of justice by taking into consideration the circumstances surrounding the incident, the manner and mode under which the compromise has been arrived at between the parties, and further due consideration to the nature and seriousness of the offence, in addition to the conduct of the accused, before and after the incident. But, such power is to be exercised very carefully, diligently and cautiously as observed by Hon'ble Supreme Court in Narinder Singh & Ors. Vs. State of Punjab & Anr. reported in (2014) 6 SCC 466, as follows :

"22. Thus, we find that in certain circumstances, this Court has approved the quashing of proceedings under Section 307 IPC whereas in some other cases, it is held that as the offence is of serious nature such proceedings cannot be quashed. Though in each of the aforesaid cases the view taken by this Court may be justified on its own facts, at the same time this Court owes an explanation as to why two different approaches are adopted in various cases. The law declared by this Court in the form of judgments becomes binding precedent for the High Courts and the subordinate courts, to follow under Article 141 of the Constitution of India. Stare decisis is the fundamental principle of judicial decision-making which requires "certainty" too in law so that in a given set of facts the course of action which law shall take is discernible and predictable. Unless that is achieved, the very doctrine 9 Cr. Appeal (SJ) No. 1088 of 2005

of stare decisis will lose its significance. The related objective of the doctrine of stare decisis is to put a curb on the personal preferences and priors of individual Judges. In a way, it achieves equality of treatment as well, inasmuch as two different persons faced with similar circumstances would be given identical treatment at the hands of law. It has, therefore, support from the human sense of justice as well. The force of precedent in the law is heightened, in the words of Karl Llewellyn, by "that curious, almost universal sense of justice which urges that all men are to be treated alike in like circumstances".

23. As there is a close relation between equality and justice, it should be clearly discernible as to how the two prosecutions under Section 307 IPC are different in nature and therefore are given different treatment. With this ideal objective in mind, we are proceeding to discuss the subject at length. It is for this reason we deem it appropriate to lay down some distinct, definite and clear guidelines which can be kept in mind by the High Courts to take a view as to under what circumstances it should accept the settlement between the parties and quash the proceedings and under what circumstances it should refrain from doing so. We make it clear that though there would be a general discussion in this behalf as well, the matter is examined in the context of the offences under Section 307 IPC."

24. xxx xxxxxx

25. xxx xxxxxx

26. Having said so, we would hasten to add that though it is a serious offence as the accused person(s) attempted to take the life of another person/victim, at the same time the court cannot be oblivious to hard realities that many times whenever there is a quarrel between the parties leading to physical commotion and sustaining of injury by either or both the parties, there is a tendency to give it a slant of an offence under Section 307 IPC as well. Therefore, only because FIR/charge- sheet incorporates the provision of Section 307 IPC would not, by itself, be a ground to reject the petition under Section 482 of the Code and refuse to accept the settlement between the parties. We are, therefore, of the opinion that while taking a call as to whether compromise in such cases should be effected or not, the High Court should go by the nature of injury sustained, the portion of the bodies where the injuries were inflicted (namely, whether injuries are caused at the vital/delicate parts of the body) and the nature of weapons used, etc. On that basis, if it is found that there is a strong possibility of proving the charge under Section 307 IPC, once the evidence to that effect is led and injuries proved, the Court should not accept settlement between the parties. On the other hand, on the basis of prima facie assessment of the aforesaid circumstances, if the High Court forms an opinion that provisions of Section 307 IPC were unnecessarily included in the charge-sheet, the Court can accept 10 Cr. Appeal (SJ) No. 1088 of 2005

the plea of compounding of the offence based on settlement between the parties.

In the recent past the Hon'ble Supreme Court in Ramgopal v. State of M.P., reported in 2021 SCC OnLine SC 834 considering all the aforesaid cases laid down the following principles in paras 11, 12, 13, 14, and 19:

11. True it is that offences which are 'non-compoundable' cannot be compounded by a criminal court in purported exercise of its powers under Section 320 Cr.P.C. Any such attempt by the court would amount to alteration, addition and modification of Section 320 Cr.P.C, which is the exclusive domain of Legislature. There is no patent or latent ambiguity in the language of Section 320 Cr.P.C., which may justify its wider interpretation and include such offences in the docket of 'compoundable' offences which have been consciously kept out as non-compoundable. Nevertheless, the limited jurisdiction to compound an offence within the framework of Section 320 Cr.P.C. is not an embargo against invoking inherent powers by the High Court vested in it under Section 482 Cr.P.C. The High Court, keeping in view the peculiar facts and circumstances of a case and for justifiable reasons can press Section 482 Cr.P.C. in aid to prevent abuse of the process of any Court and/or to secure the ends of justice.

12. The High Court, therefore, having regard to the nature of the offence and the fact that parties have amicably settled their dispute and the victim has willingly consented to the nullification of criminal proceedings, can quash such proceedings in exercise of its inherent powers under Section 482 Cr.P.C., even if the offences are noncompoundable. The High Court can indubitably evaluate the consequential effects of the offence beyond the body of an individual and thereafter adopt a pragmatic approach, to ensure that the felony, even if goes unpunished, does not tinker with or paralyze the very object of the administration of criminal justice system.

13. It appears to us that criminal proceedings involving non- heinous offences or where the offences are pre-dominantly of a private nature, can be annulled irrespective of the fact that trial has already been concluded or appeal stands dismissed against conviction. Handing out punishment is not the sole form of delivering justice. Societal method of applying laws evenly is always subject to lawful exceptions. It goes without saying, that the cases where compromise is struck post-conviction, the High Court ought to exercise such discretion with rectitude, keeping in view the circumstances surrounding the incident, the fashion in which the compromise has been arrived at, and with due regard to the nature and seriousness of the offence, besides the conduct of the accused, before and after the incidence. The 11 Cr. Appeal (SJ) No. 1088 of 2005

touchstone for exercising the extra-ordinary power under Section 482 Cr.P.C. would be to secure the ends of justice. There can be no hard and fast line constricting the power of the High Court to do substantial justice. A restrictive construction of inherent powers under Section 482 Cr.P.C. may lead to rigid or specious justice, which in the given facts and circumstances of a case, may rather lead to grave injustice. On the other hand, in cases where heinous offences have been proved against perpetrators, no such benefit ought to be extended, as cautiously observed by this Court in Narinder Singh v. State of Punjab and Laxmi Narayan (Supra).

14. In other words, grave or serious offences or offences which involve moral turpitude or have a harmful effect on the social and moral fabric of the society or involve matters concerning public policy, cannot be construed betwixt two individuals or groups only, for such offences have the potential to impact the society at large. Effacing abominable offences through quashing process would not only send a wrong signal to the community but may also accord an undue benefit to unscrupulous habitual or professional offenders, who can secure a 'settlement' through duress, threats, social boycotts, bribes or other dubious means. It is well said that "let no guilty man escape, if it can be avoided."

19. We thus sum-up and hold that as opposed to Section 320 Cr.P.C. where the Court is squarely guided by the compromise between the parties in respect of offences 'compoundable' within the statutory framework, the extra-ordinary power enjoined upon a High Court under Section 482 Cr.P.C. or vested in this Court under Article 142 of the Constitution, can be invoked beyond the metes and bounds of Section 320 Cr.P.C. Nonetheless, we reiterate that such powers of wide amplitude ought to be exercised carefully in the context of quashing criminal proceedings, bearing in mind: (i) Nature and effect of the offence on the conscious of the society; (ii) Seriousness of the injury, if any; (iii) Voluntary nature of compromise between the accused and the victim; & (iv) Conduct of the accused persons, prior to and after the occurrence of the purported offence and/or other relevant considerations.

10. In view of the aforesaid propositions of law as propounded by the Hon'ble Supreme court in Gian Singh's case (Supra), Laxmi Narayan's case (Supra), Yogender Yadav's case (Supra), Narinder Singh's case (supra) and Ramgopal's case (Supra) and as it is found in the present case that the sole appellant- Punna Sardar and the victim girl P.W. 4 have solemnized the marriage and three children 12 Cr. Appeal (SJ) No. 1088 of 2005

are born out of the said wedlock and now a joint compromise petition has been filed on their behalf including the appellant and the P.W. 4 vide I.A. 7249 of 2022 by swearing on affidavit by both of them. From the perusal of the said I.A. No. 7249 of 2022, it is found that the appellant and the victim P.W. 4 after solemnizing the marriage are living as husband and wife and out of their marriage three children were born and a son is 14 years and a daughter is aged about 8 years and another daughter is aged about 6 years and now they are living peacefully and happily and leading a very happy family life. The parties on their own volition, without any coercion or compulsion, willingly and voluntarily have buried their differences and wish to accord a quietus to their dispute(s). The victim P.W.4 has no grievance with the appellant and it is also evident from the testimony of the victim P.W. 4 who has been examined during the course of the trial that both were acquainted to each other from before and she categorically stated in para 2 of the cross examination that this appellant did not misbehave at all with her. At present both have married to each other and they are leading a happy married life and therefore in the larger interest of peace and tranquility it is a demand of the justice to ensure that let them lead a happy married life with the family member including three small children who are minor.

11. If this appeal is decided on merit then there is a possibility of conviction and thereby their happy married life might be disturbed, in this view of the matter in order to ensure responsive justice it is fair and just to allow this appeal to be compounded even if the appellant has been convicted for the offence punishable u/s 363 and 366-A of IPC which is non-compoundable in nature. It appears from the Aadhar Card of the three children born out of the marriage that the son namely Bikash Sardar aged about 14 years, and daughter Durga Sardar aged about 8 years and another daughter Kajal Sardar 13 Cr. Appeal (SJ) No. 1088 of 2005

aged about 06 years and their Aadhar Cards are enclosed with the I.A. and it appears that the appellant and the victim girl are happy with their three minor children.

12. Having taken into consideration the aforesaid facts and circumstances, this appeal is allowed to be compounded even if the offence under which the appellants are convicted are non- compoundable in nature.

13. In the result, the impugned judgment of conviction and order of sentence dated 30.06.2005 passed by the learned Sessions Judge, Seraikella-Kharsawan in Sessions Trial No. 58 of 2004, in connection with Seraikella P.S. Case No. 20 of 2004, corresponding to G.R. Case No. 167 of 2004 at Seraikella-Kharsawan, Jharkhand against the appellant is set aside.

14. This appeal is allowed.

15. The appellant is acquitted from the charges leveled against him. Since the appellant is on bail, he is discharged from the liabilities of the bail bonds.

16. I.A. No. 7249 of 2022 also gets disposed of accordingly.

17. Let the LCR be sent back to the concerned learned court below along with the copy of the judgment.

(Navneet Kumar, J.) Jharkhand High Court, Ranchi, Dated the 14.09.2022/NAFR MM/-