Rohit Rai vs The State Of Jharkhand
2023 Latest Caselaw 893 Jhar

                               1             Cr. Appeal (SJ) No. 479 of 2019



    IN THE HIGH COURT OF JHARKHAND AT RANCHI
               Cr. Appeal (SJ) No. 479 of 2019
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(Against the judgment of conviction and order of sentence dated 12.04.2019 passed by learned Additional Sessions Judge 1st, Jamtara in Sessions Trial Case No. 74 of 2017, in connection with Karmatanr P.S. Case No.114 of 2016 corresponding to G.R. Case No.641 of 2016, Jamtara, Jharkhand.)

Rohit Rai ... ... 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. Kasuhik Sarkhel, Advocate For the Respondent : Mr. Azeemuddin, Addl.P.P. For the P.W. 1-victim : Mrs. Rajni Singh, Advcoate

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JUDGMENT: Dated: 24 February, 2023 th

1. This appeal is directed against the judgment of conviction and the order of sentence dated 12.04.2019 passed by learned Additional Sessions Judge 1st, Jamtara in Sessions Trial Case No. 74 of 2017, in connection with Karmatanr P.S. Case No.114 of 2016 corresponding to G.R. Case No.641 of 2016, Jamtara, Jharkhand whereby and where under, the learned Additional Sessions Judge 1st, Jamtara has convicted the appellant under section 363 of the Indian Penal Code and accordingly sentenced to undergo Rigorous Imprisonment for three years and to pay fine of Rs. 4000/- and in default of payment of fine, Simple Imprisonment for two month under section 363 of the Indian Penal Code.

2. The brief fact of the prosecution case is based on the written information of Jitu Gorain (P.W. 9) addressed to Officer-In-Charge of Karmatanr. The prosecution story is that the occurrence was of 19.07.2016 at 10:30 A.M. when his daughter "X" was coming from the house of her maternal uncle and on the way near Samukhpokhar Bus Stand, the accused Rohit Rai had taken her away on his 2 Cr. Appeal (SJ) No. 479 of 2019

motorcycle. He has further alleged that his daughter "X" was minor, aged about only 15 years. He has further stated that he had gone to field at that time along with his wife and the occurrence of kidnapping of his daughter was informed by his son, then he searched his daughter but he could not find her trace and then he lodged a case against accused Rohit Rai.

3. On the basis of written application of informant Karmatanr P.S. Case No.114/2016 was registered on 21.07.2016 for the offence punishable u/s 366-A of IPC against accused. The I.O. after completion of investigation submitted charge sheet for the offence punishable u/s 376 and 366-A of IPC and thereafter the charges were also framed u/s 366-A and 376 of IPC on 28.07.2017 by Learned Principal Sessions Judge, Jamtara and after framing of the charge, the trial was commenced and the learned court below after conducting full-fledged trial passed the impugned judgment of conviction and order of sentence under which the sole appellant was found guilty for the offence punishable u/s 363 of IPC and the impugned judgment of conviction and order of sentence was passed.

4. Heard the learned counsel appearing for the appellant, the learned counsel for victim P.W. 1 and learned Addl.P.P for the State.

Arguments advanced on behalf of appellant and victim-

5. During the course of the argument it has jointly been submitted on behalf of the appellant and victim P.W. 1 that as a matter of fact it was a case of love affair between the alleged victim (P.W. 1) and the appellant and guardians of the victim were not ready to get them married and therefore, the case was instituted, as it is evident from the categorical testimonies of victim (P.W. 1) who has been examined as P.W. 1 during the course of the trial. But, despite of these facts the judgment of conviction and order of 3 Cr. Appeal (SJ) No. 479 of 2019

sentence was passed. Further, it has been pointed out that during the pendency of this appeal a joint compromise petition was filed on behalf of the appellant and the victim (P.W. 1) stating therein that both (the appellants and the victim) have solemnized the marriage and they are living happily as husband and wife in a very harmonious and cordial relationship. It has further been submitted jointly on behalf of the appellant and the victim (P.W. 1) that due to intervention of common relatives and well-wishers (both the parties the appellant and the wife victim P.W. 1) amicably settled their dispute and now there is no grievance between them or their family members and, therefore, it is jointly submitted on behalf of the appellant and the victim (P.W. 1) that although the judgment of conviction has been passed u/s 363 of IPC which is non- compoundable in nature, let this appeal be disposed of as compounded in the interest of justice, because it was clearly a personal nature of dispute between two families which was prevailing between the parties. Now after solemnization of marriage between the appellant and victim (P.W. 1) the matter has been set at rest once and for all. In support of their contentions the learned counsels appearing on behalf of both the parties (i.e. appellant and the victim ) relied upon the rulings of Hon'ble the Apex 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 4 Cr. Appeal (SJ) No. 479 of 2019

Arguments advance on behalf of State-

6. On the other hand Learned Addl.P.P. appearing on behalf of the state did not controvert this fact that a joint compromise petition has been filed by the appellant Rohit Rai and the victim P.W. 1 (wife of the appellant) sworn on affidavit by both of them that both have married with each other and they are living very happily and leading peaceful conjugal life and therefore, in this view of facts it is urged by Learned Addl.P.P. that an appropriate order may be passed.

Appraisal & Findings

7. Having heard the parties, perused the record of this case including the Lower Court Record.

8. It is found that the appellant was convicted for the offence punishable u/s 363 of IPC. During the course of trial, it was accepted by the victim P.W. 1 in her testimonies that both the appellant and P.W. 1 had been in love with each other and there was no case of enticement or taking away her by the appellant. It is also found that during the pending of this appeal, the appellant and the victim P.W. 1 have solemnized the marriage and by way of filing the joint compromise petition, they have stated that their entire disputes between both the families have been resolved and after getting married they are leading a happy conjugal life and in this view of the matter and in view of the larger interest of quietness, peace and happy conjugal life which has prevailed between both the parties, it is just and proper to let this appeal be allowed as compounded, in view of the fact that if the appeal is decided on merit it may disturb the peace and happy conjugal life of the appellant and the victim P.W. 1 and further it is also found that it is a personal nature of dispute which had prevailed between the parties and now it has been amicably settled between both the parties including their 5 Cr. Appeal (SJ) No. 479 of 2019

family members as evident form the joint compromise petition which has been filed on behalf of the appellant and the victim P.W. 1 vide I.A. No. 1799 of 2023. Even if the offence u/s 363 of IPC is non- compoundable but for the ends of justice this appeal is fit to be allowed as compounded. The Hon'ble Supreme Court in a number of cases has held that if the dispute is of personal in nature then, even if the case is non-compoundable in nature, the appeal should be allowed as compounded. The authorities of the Hon'ble Supreme Court in this regard 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

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 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 6 Cr. Appeal (SJ) No. 479 of 2019

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 under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, 7 Cr. Appeal (SJ) No. 479 of 2019

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. However, when the High Court is convinced that the offences 8 Cr. Appeal (SJ) No. 479 of 2019

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 of stare decisis will lose its significance. The related objective of the 9 Cr. Appeal (SJ) No. 479 of 2019

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. 479 of 2019

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 11 Cr. Appeal (SJ) No. 479 of 2019

conduct of the accused, before and after the incidence. The 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.

9. 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 both (the appellant Rohit Rai and the victim P.W.-1) have solemnized the marriage with each other and 12 Cr. Appeal (SJ) No. 479 of 2019

they have been leading a very happy and peaceful life. In this case no such offence has been committed by which the society at large is going to be affected and it is also admitted during the course of the trial, the victim had been in love affair with appellant Rohit Rai and over a period of time they have solemnized the marriage and now they are living a happy married life.

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

11. In the backdrop of this case, the impugned judgment of conviction and order of sentence dated 12.04.2019 passed by learned Additional Sessions Judge 1st, Jamtara in Sessions Trial Case No. 74 of 2017 in connection with Karmatanr P.S. Case No.114 of 2016 corresponding to G.R. Case No.641 of 2016, Jamtara, Jharkhand against the appellant is set aside and this appeal is allowed as compounded, the appellant is acquitted from all the charges leveled against him and he is also discharged from the liabilities of bail bonds.

12. Accordingly, the I.A. No. 1799 of 2023 gets disposed of.

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

(Navneet Kumar, J.) MM