Karnataka High Court

Sri. Rudraswamy vs Manjunath on 12 August, 2022

Bench: M.Nagaprasanna

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                                                          CRL.P No. 5334 of 2022

                            IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 12TH DAY OF AUGUST, 2022

                                                BEFORE
                              THE HON'BLE MR JUSTICE M.NAGAPRASANNA
                                 CRIMINAL PETITION NO. 5334 OF 2022
                       BETWEEN:

                       1.    SRI. RUDRASWAMY,
                             S/O HALAPPA
                             AGED ABOUT 58 YEARS,
                             R/O JAVALLI, PILLANGIRI POST,
                             SHIVAMOGGA DISTRICT - 577 201.

                       2.    SMT. PRAMILA,
                             W/O RENUKARADHYA,
                             AGED ABOUT 33 YEARS,
                             R/O JAVALLI VILLAGE,
                             SHIVAMOGGA TQ.

                                                                  ...PETITIONERS

                       (BY SRI.P.P.HEGDE, SENIOR COUNSEL FOR
                           SRI.H MALATESH., ADVOCATE)

                       AND:
Digitally signed by
PADMAVATHI B K
Location: HIGH COURT
OF KARNATAKA           1.    MANJUNATH,
                             S/O RANGESHAPPA,
                             AGED ABOUT 37 YEARS,
                             OCCUPATION: AGRICULTURIST,
                             R/O JAVALI VILLAGE,
                             SHIVAMOGGA TQ. - 577 201.

                       2.    SHIVU,
                             S/O IRAIAH,
                             AGED ABOUT 37 YEARS,
                             OCCUPATION: AGRICULTURIST,
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                                        CRL.P No. 5334 of 2022

     R/O JAVALI VILLAGE,
     SHIVAMOGGA TQ. - 577 201.

3.   THE STATE - THROUGH THE
     SUB INSPECTOR OF POLICE,
     SHIVAMOGGA RURAL POLICE STATION.
     REPRESENTED BY THE
     STATE PUBLIC PROSECUTOR,
     HIGH COURT OF KARNATAKA,
     BENGALURU - 560 001.

                                                    ...RESPONDENTS

(BY SMT.RACHITHA RAJASHEKAR, ADVOCATE FOR R1 AND R2;
    SMT.K.P.YASHODHA, HCGP FOR R3)

     THIS CRL.P. IS FILED U/S.482 OF CR.P.C PRAYING TO
QUASH THE ENTIRE PROCEEDING INCLUDING THE ORDER OF
SENTENCE IN S.C.NO.300/2006, PENDING ON THE FILE OF
THE ADDITIONAL SESSIONS JUDGE AT SHIVAMOGGA AND
KINDLY DIRECT RESPONDENT NO.1 AND 2 SET OUT LIBERTY.

     THIS CRL.P. COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:

                             ORDER

The petitioners - PW.1 and PW.2 in S.C.No.300/2006 are

before this Court seeking obliteration of the order of conviction

passed by this Court in Crl.A.No.256/2008 by way of settlement

between the parties.

2. Therefore, the issue that arises for consideration is

"whether the offence or crime can be obliterated on account of

a settlement that is arrived at post conviction".

CRL.P No. 5334 of 2022

3. Heard Sri P.P.Hegde, the learned Senior counsel

appearing for the petitioners, Smt. Rachitha Rajashekar, the

learned counsel appearing for respondent Nos.1 and 2 and also

the learned HCGP for respondent No.3.

4. Brief facts leading to the filing of the present petition,

as borne out from the pleadings, are as follows:

A crime comes to be registered against accused Nos.1

and 2 on a complaint made by petitioner No.1 - PW.1 alleging

that his daughter has gone missing. Therefore, a missing

complaint comes to be registered on 14.05.2006 for offences

punishable under Sections 363, 366(A), 342, and 506 read with

Section 34 of the IPC.

5. The learned Sessions Judge, by his order dated

25.09.2007 in S.C.No.300/2006 acquits the accused of the

offences so alleged. The State tossed the said judgment and

acquittal passed by the Sessions Judge before this Court in

Crl.A.No.256/2008. This Court, by its order dated 22.07.2014,

upturned the order passed by the learned Sessions Judge,

albeit partially and held the accused guilty of the offence

punishable under Section 363 of IPC. The accused herein

CRL.P No. 5334 of 2022

preferred an appeal before the Apex Court in SLP.No.849/2015,

which came to be dismissed. After dismissal of the case before

the Apex Court, accused No.1 is taken to custody. The parties

to the lis have entered into a settlement and compromise on

the issue amongst themselves and have filed an affidavit of

such compromise seeking its acceptance and annulment of the

proceedings against accused No.1.

6. The learned Senior counsel representing the

petitioners would take this Court through the judgment

rendered by the Apex Court in the case of Ramgopal vs The

State Of Madhya Pradesh reported in 2021 SCC Online SC

834, to buttress his submission that post conviction settlement

can be arrived at and that such power of obliteration of the

proceedings on such settlement is available to the High Court

under Section 482 of Cr.P.C.

7. Learned HCGP would contend that for the conviction

order that is passed accused No.1 has to undergo sentence and

after post conviction, the settlement cannot be arrived at the

hands of this Court as it would be defeating the very order that

passed by the Co-ordinate Bench convicting accused No.1.

CRL.P No. 5334 of 2022

8. I have given my anxious consideration to the

submissions made by the learned counsel for the parties and

perused the material on record.

9. The afore-narrated facts are not in dispute. What

needs consideration at the hands of this Court is the

acceptance of the settlement between the parties post

conviction of accused Nos.1 and 2 in S.C.No.300/2006. It is not

in dispute that the concerned Court acquitted accused Nos.1

and 2 for offences punishable under Sections 363, 366 (A), and

342 read with Section 34 of the IPC. The Co-ordinate Bench of

this Court in Crl.A.No.256/2008 accepted the acquittal of all

other offences but convicted accused Nos.1 and 2 for offences

punishable under Section 363 of the IPC. The order passed by

the Co-ordinate Bench reads as follows:

"22. In view of the evidence of PW.6, the son

taking the victim on their motor cycle and as he has not referred to accused Nos.3 and 4, I think it is not proper to accept the version of PW.2 in this regard. Therefore, the material placed on record is sufficient to hold that accused Nos.1

CRL.P No. 5334 of 2022

and 2 guilty for the offence under Section 361 of IPC punishable under Section 363.

23. The prosecution has examined PW.9- the police officer who registered the complaint and held the investigation. View from any angle, the trial Court has committed an error in acquitting respondent Nos.1 and 2 (accused Nos.1 and 2) for the charge under Section 363 of IPC. Taking into consideration, the nature of offence, the punishment provided, the reasonable sentence has to be awarded.

24. Consequently, the appeal is allowed in part. The respondent Nos.1 and 2 are held guilty for the offence under Section 363 of IPC. They are ordered to undergo simple imprisonment for one year and to pay a fine of `5,000/-, in default to undergo simple imprisonment for three months. The judgment and order as against accused No.3 stands affirmed. The trial Court is directed to secure respondent Nos.1 and 2 to undergo sentence.

25. The fee of Sri Umesh.K.M, Amicus Curiae for respondent Nos.1 to 3 is fixed at `5,000/- and the State shall pay the same."

10. An appeal filed by accused Nos.1 and 2 came to be

dismissed by the Apex Court thereby refusing to grant leave

CRL.P No. 5334 of 2022

against the order passed by the Co-ordinate Bench. Therefore,

the order of the Co-ordinate Bench is what is needs to be

considered, as there is no affirmation of the finding of this

Court in Crl.A.No.256/2008 by the Apex Court. With regard to

the facts whether the settlement can be arrived at post

conviction need not detain this Court for long or delve deep into

the matter. The Apex Court right from the year 2003

considered the cases where settlement or compounding of

offences would be permitted post conviction.

11. Subsequently, two other Benches of the Apex Court

in the year 2008, one in the case of Nikil Merchand vs.

Central Bureau of Investigation and another reported in

(2008) 9 SCC 677 and the other in the case of Manoj

Sharma vs. State and others reported (2008) 16 SCC 1 has

considered the fact that post conviction a settlement can be

accepted and proceedings can be obliterated by the Court

herein a petition what before under Section 482 of Cr.P.C. The

same is reiterated by the Apex Court in the case of Ramgopal

(Supra), where the Apex Court was also considered the case

where a post conviction settlement was arrived, which reads as

follows:

CRL.P No. 5334 of 2022

"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 Page | 10 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 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

CRL.P No. 5334 of 2022

be extended, as cautiously observed by this Court in Narinder Singh & Ors. vs. State of Punjab & Ors.3 and Laxmi Narayan (Supra).

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."

12. On a coalesce of the judgments rendered by the

Apex Court as afore-quoted what would unmistakably emerge

is that there cannot be a restrictive construction of the inherent

powers of the High Court under Section 482 of Cr.P.C., and

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CRL.P No. 5334 of 2022

handing out punishment is not the sole form of delivery in

justice. If these words that are in the case of Ramgopal

(Supra) paraphrase to the case at hand it would become

unmistakably clear that this Court can exercise its jurisdiction

under Section 482 of Cr.P.C., post conviction and terminate the

proceedings against the petitioners. On the bedrock of the

principles so laid by the Apex Court as afore-quoted, the

settlement so arrived at between the parties, it is germane to

be noted at this juncture, the affidavit of which, reads as

follows:

"I, Rudraswamy, S/o Halappa, aged about 58 years, R/o Javalli, Pillangiri Post, Shivamogga District, Pin: 577201, today at Bengaluru do hereby solemnly affirm and state on oath as follows:

1. I say that I am the petitioner in above case, and conversant with the facts of the case, hence swearing this affidavit.

2. I say that, learned Sessions Judge in S.C.No.300/2006 acquitted all the accused challenging the said order the state filed the appeal before the Hon'ble High Court in Crl.A.No.256/2008.

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CRL.P No. 5334 of 2022

3. I say that, Hon'ble High Court vide order dated 22.07.2014 in Crl.A.No.256/2008 partly allowed the appeal be convicting the petitioners accused No.1 and 2, challenging the said order the petitioners preferred the SLP (Criminal) No.849/2015. The Hon'ble Supreme Court vide order dated 13.04.2015 dismissed the appeal and ordered 'not claimed to interfere with the impugned order of the High court', since there is no interference this Hon'ble High court can compound the offence.

4. I say that, the dispute between us and the respondent No.1 and 2 is compromised, and I intends to withdraw the case lodged against the respondent No.1 and 2.

5. I say that, my daughter Pramila who is the victim in above case also ready and willing to compromise with free will without any threat or force.

6. I say that, my daughter is ready to withdraw all the allegations her statement made against respondent No.1 and 2 without any force or coercion.

7. I say that, my daughter is married to Renukaradhya, and she has two children and living happily along with her husband without any problem.

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CRL.P No. 5334 of 2022

8. I say that, I am my self ready and willing to withdraw all the allegation made against the respondent No.1 and 2.

9. I say that, the order of conviction passed in Crl.A.No.256/2008 kindly be quashed confirming the order passed in S.C.No.300/2006 in the interest of justice and equity.

10. I say that if the order of conviction is not set-aside based on the compromise between the petitioners and the informant it becomes great injustice to us."

13. It is the offence punishable under Section 363 of

IPC was sustained by this Court on account of the victim going

along with accused No.1 on his motor cycle. It is submitted

across the Bar that the victim is already married and living a

happy family life. Therefore, in the teeth of the aforesaid facts,

I deem it appropriate to accept the settlement arrived at

between the parties and terminate the proceedings, qua the

petitioners.

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CRL.P No. 5334 of 2022

14. For the aforesaid reasons, the following:

ORDER