Biju @ Ranjan Kumar Sahoo & Others vs State Of Odisha & Others
2021 Latest Caselaw 12768 Ori

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                          CRLMC No.1068 of 2021
             An application under Section 482 of the Cr.P.C.
                                ----------

Biju @ Ranjan Kumar Sahoo & Others              ......        Petitioners
                                       Versus
State of Odisha & Others                        ......      Opp. Parties

Advocate(s) appeared in this case :-

        For Petitioners            : Mr. Partha Sarathi Nayak, Advocate
        For Opp. Parties           : Ms. S. Mishra, Addl. Standing Counsel
                                     Mr. Dipti Ranjan Bhokta, Advocate for
                                     Opposite Party Nos.2 & 3.

             CORAM :
                    JUSTICE B.P. ROUTRAY

                              JUDGMENT

th 13 December, 2021

B.P. Routray,J.

1. All six Petitioners, who are accused persons in Dhenkanal Town P.S. Case No. 320 dated 9th November, 2016 have prayed to quash the order of cognizance dated 25th August, 2018 of the learned Judge, Special Court, Dhenkanal in CT (Spl.) Case No.99 of 2016.

2. The offences are under Section 147/148/341/323/294/506/379/ 427/149 of the Indian Penal Code, read with Section 3(1)(r)(s) and 3(2)(va) of the SC & ST (PoA) Act on the allegation that the Petitioners assaulted Opposite Party No. 2 & 3 by fist and kick blows in prosecution of their

common object and took Rs.3000/- to Rs.4000/- when the Opposite Parties were present in the fast-food shop. Opposite Party No.2 is the informant.

3. Upon completion of investigation, charge sheet was filed for the offences stated above and cognizance has been taken by the Special Court consequently.

4. It is submitted that the parties belong to the same locality and the incident happened in a fit of instant rage. In the meantime, the dispute between the parties has been settled through mutual concession and none of the parties want to pursue the dispute further. All of them are now staying peacefully in the locality having resolved the dispute and differences between them. So they have prayed for quashing of the order of cognizance as no fruitful purpose would be satisfied by proceeding further.

5. Both the victims as Opposite Party Nos.2 & 3 have filed their affidavits entering appearance through their lawyer. They have tendered their concession that the disputes between them have been settled mutually and they do not want to proceed further against the Petitioners anymore.

6. The law is no more res integra in the matters of quashing of criminal proceeding on compromise between the parties,. The Hon‟ble Supreme Court in the case of Gold Quest International Private Limited vs. State of Tamil Nadu and others, (2014) 15 SCC 235, while relying on several earlier decisions including the case of B.S. Joshi v. State of Haryana [(2003) 4 SCC 675] and Gian Singh vs. State of Punjab and another, [(2012) 10 SCC 303] have held (at para 8) as follows:

"In view of the principle laid down by this Court in the aforesaid cases, we are of the view that in the disputes which are substantially matrimonial in nature, or the civil property disputes with criminal facets, if the parties have entered into settlement, and it has become clear that there are no chances of conviction, there is no illegality in quashing the proceedings under Section 482 Cr.P.C. read with Article 226 of the Constitution. However, the same would not apply where the nature of offence is very serious like rape, murder, robbery, dacoity, cases under the Prevention of Corruption Act, cases under the Narcotic Drugs and Psychotropic Substances Act and other similar kind of offences in which punishment of life imprisonment or death can be awarded. After considering the facts and circumstances of the present case, we are of the view that the learned Single Judge did not commit any error of law in quashing the FIR after not only the complainant and the appellant settled their money dispute but also the other alleged sufferers entered into an agreement with the appellant, and as such, they too settled their claims."

7. Further, in the case of Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and others v. State of Gujarat and another, (2017) 9 SCC 641, the Supreme Court has broadly, though not exhaustively, discussed the parameters of exercise of inherent powers of High Court under Section 482 of Cr.P.C. on the ground of settlement between the parties. The Supreme Court has held:-

"15.The broad principles which emerge from the precedents on the subject, may be summarized in the following propositions:-

(i) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognizes and preserves powers which inhere in the High Court;

(ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction

for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.

(iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;

(iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;

(v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;

(vi) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;

(vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;

(viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate

situations fall for quashing where parties have settled the dispute;

(ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and

x) There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance."

8. In the case of Ramawatar v. State of Madhya Pradesh, (2021) SCC Online SC 966, before the Hon‟ble Supreme Court, the Appellant was convicted and sentenced to six months rigorous imprisonment along with fine of Rs.1000/- and his appeal before the High Court was dismissed. He then appealed before the Supreme Court. In the appeal, the appellant prayed for invocation of power under Article 142 of the Constitution to quash the criminal proceeding taking the stand that the matter had been settled between the parties and the complainant had filed an application for compromise. The appeal was allowed and the criminal proceeding was quashed to do complete justice between the parties. The relevant observations of the Supreme Court are reproduced below:-

9. Having heard learned Counsel for the parties at some length, we are of the opinion that two questions fall for our consideration in the present appeal. First, whether the jurisdiction of this Court under Article 142 of the Constitution can be invoked for quashing of criminal proceedings arising out of a „non-compoundable offence? If yes, then whether the power

to quash proceedings can be extended to offences arising out of special statutes such as the SC/ST Act?

10. So far as the first question is concerned, it would be ad rem to outrightly refer to the recent decision of this Court in the case of Ramgopal & Anr v. The State of Madhya Pradesh, Criminal Appeal No.1489 of 2012, wherein, a two-Judge Bench of this Court consisting of two of us (N.V. Ramana, CJI & Surya Kant, J) was confronted with an identical question. Answering in the affirmative, it has been clarified that the jurisdiction of a Court under Section 320 Cr.P.C cannot be construed as a proscription against the invocation of inherent powers vested in this Court under Article 142 of the Constitution nor on the powers of the High Courts under Section 482 Cr.P.C. It was further held that the touchstone for exercising the extraordinary powers under Article 142 or Section 482 Cr.P.C., would be to do complete justice. Therefore, this Court or the High Court, as the case may be, after having given due regard to the nature of the offence and the fact that the victim/complainant has willingly entered into a settlement/compromise, can quash proceedings in exercise of their respective constitutional/inherent powers.

11. The Court in Ramgopal (Supra) further postulated that criminal proceedings involving non-heinous offences or offences which are predominantly of a private nature, could be set aside at any stage of the proceedings, including at the appellate level. The Court, however, being conscious of the fact that unscrupulous offenders may attempt to escape their criminal liabilities by securing a compromise through brute force, threats, bribes, or other such unethical and illegal means, cautioned that in cases where a settlement is struck post-conviction, the Courts should, inter-alia, carefully examine the fashion in which the compromise has been arrived at, as well as, the conduct of the accused before and after the incident in question. While concluding, the Court also formulated certain guidelines and held:

"19... 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."

[Emphasis Applied]

12. In view of the settled proposition of law, we affirm the decision of this Court in Ramgopal (Supra) and reiterate that the powers of this Court under Article 142 can be invoked to quash a criminal proceeding on the basis of a voluntary compromise between the complainant/victim and the accused.

13. We, however, put a further caveat that the powers under Article 142 or under Section 482 Cr.P.C., are exercisable in post-conviction matters only where an appeal is pending before one or the other Judicial forum. This is on the premise that an order of conviction does not attain finality till the accused has exhausted his/her legal remedies and the finality is sub-- judice before an appellate court. The pendency of legal proceedings, be that may before the final Court, is sine-qua-non to involve the superior court‟s plenary powers to do complete justice. Conversely, where a settlement has ensued post the attainment of all legal remedies, the annulment of proceedings on the basis of a compromise would be impermissible. Such an embargo is necessitated to prevent the accused from gaining an indefinite leverage, for such a settlement/compromise will always be loaded with lurking suspicion about its bona fide. We have already clarified that the purpose of these extra-ordinary powers is not to incentivise any hollow-hearted agreements between the accused and the victim but to do complete justice by effecting genuine settlement(s).

14. With respect to the second question before us, it must be noted that even though the powers of this Court under Article 142 are wide and far-reaching, the same cannot be exercised in a vacuum. True it is that ordinary statutes or any restrictions contained therein, cannot be constructed as a limitation on the Court‟s power to do "complete justice". However, this is not to say that this Court can altogether ignore the statutory provisions or other express prohibitions in law. In fact, the Court is

obligated to take note of the relevant laws and will have to regulate the use of its power and discretion accordingly. The Constitution Bench decision in the case of Supreme Court Bar Assn. v. Union of India & Anr., (1998) 4 SCC 409 has eloquently clarified this point as follows:

"48. The Supreme Court in exercise of its jurisdiction under Article 142 has the power to make such order as is necessary for doing complete justice "between the parties in any cause or matter pending before it". The very nature of the power must lead the Court to set limits for itself within which to exercise those powers and ordinarily it cannot disregard a statutory provision governing a subject, except perhaps to balance the equities between the conflicting claims of the litigating parties by "ironing out the creases" in a cause or matter before it. Indeed this Court is not a court of restricted jurisdiction of only dispute-settling. It is well recognized and established that this Court has always been a law maker and its role travels beyond merely dispute-settling. It is a "problem-solver in the nebulous areas" (see K. Veeraswami v. Union of India [(1991) 3 SCC 655 : 1991 SCC (Cri) 734] but the substantive statutory provisions dealing with the subject-matter of a given case cannot be altogether ignored by this Court, while making an order under Article 142. Indeed, these constitutional powers cannot, in any way, be controlled by any statutory provisions but at the same time these powers are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in a statute dealing expressly with the subject."

15. Ordinarily, when dealing with offences arising out of special statutes such as the SC/ST Act, the Court will be extremely circumspect in its approach. The SC/ST Act has been specifically enacted to deter acts of indignity, humiliation and harassment against members of Scheduled Castes and Scheduled Tribes. The Act is also a recognition of the depressing reality that despite undertaking several measures, the Scheduled Castes/Scheduled Tribes continue to be subjected to various atrocities at the hands of upper-castes. The Courts have to be mindful of the fact that the Act has been enacted keeping in view

the express constitutional safeguards enumerated in Articles 15, 17 and 21 of the Constitution, with a twin-fold objective of protecting the members of these vulnerable communities as well as to provide relief and rehabilitation to the victims of caste- based atrocities.

16. On the other hand, where it appears to the Court that the offence in question, although covered under the SC/ST Act, is primarily private or civil in nature, or where the alleged offence has not been committed on account of the caste of the victim, or where the continuation of the legal proceedings would be an abuse of the process of law, the Court can exercise its powers to quash the proceedings. On similar lines, when considering a prayer for quashing on the basis of a compromise/settlement, if the Court is satisfied that the underlying objective of the Act would not be contravened or diminished even if the felony in question goes unpunished, the mere fact that the offence is covered under a „special statute‟ would not refrain this Court or the High Court, from exercising their respective powers under Article 142 of the Constitution or Section 482 Cr.P.C.

17. Adverting to the case in hand, we note that the present Appellant has been charged and convicted under the unamended Section 3(1)(x) of the SC/ST Act (substituted by Act No.1 of 2016 w.e.f. 26th January, 2016), which was as follows:

"3. Punishments for offences of atrocities- (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-- xxxx

(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;

xxxx"

18. We may hasten to add that in cases such as the present, the Courts ought to be even more vigilant to ensure that the complainant victim has entered into the compromise on the volition of his/her free will and not on account of any duress. It cannot be understated that since members of the Scheduled Caste and Scheduled Tribe belong to the weaker sections of our country, they are more prone to acts of coercion, and therefore

ought to be accorded a higher level of protection. If the Courts find even a hint of compulsion or force, no relief can be given to the accused party. What factors the Courts should consider, would depend on the facts and circumstances of each case.

19. Having considered the peculiar facts and circumstances of the present case in light of the afore-stated principles, as well as having meditated on the application for compromise, we are inclined to invoke the powers under Article 142 and quash the instant Criminal proceedings with the sole objective of doing complete justice between the parties before us. We say so for the reasons that:

Firstly, the very purpose behind Section 3(1)(x) of the SC/ST is to deter caste-based insults and intimidations when they are used with the intention of demeaning a victim on account of he/she belonging to the Scheduled Caste/ Scheduled Tribe community. In the present case, the record manifests that there was an undeniable preexisting civil dispute between the parties. The case of the Appellant, from the very beginning, has been that the alleged abuses were uttered solely on account of frustration and anger over the pending dispute. Thus, the genesis of the deprecated incident was the afore-stated civil/property dispute. Considering this aspect, we are of the opinion that it would not be incorrect to categorise the occurrence as one being overarchingly private in nature, having only subtle undertones of criminality, even though the provisions of a special statute have been attracted in the present case.

Secondly, the offence in question, for which the Appellant has been convicted, does not appear to exhibit his mental depravity. The aim of the SC/ST Act is to protect members of the downtrodden classes from atrocious acts of the upper strata of the society. It appears to us that although the Appellant may not belong to the same caste as the Complainant, he too belongs to the relatively weaker/backward section of the society and is certainly not in any better economic or social position when compared to the victim. Despite the rampant prevalence of segregation in Indian villages whereby members of the Scheduled Caste and Scheduled Tribe community are forced to restrict their quartes only to certain areas, it is seen that in the

present case, the Appellant and the Complainant lived in adjoining houses. Therefore, keeping in mind the socioeconomic status of the Appellant, we are of the opinion that the overriding objective of the SC/ST Act would not be overwhelmed if the present proceedings are quashed.

Thirdly, the incident occurred way back in the year 1994. Nothing on record indicates that either before or after the purported compromise, any untoward incident had transpired between the parties. The State Counsel has also not brought to our attention any other occurrence that would lead us to believe that the Appellant is either a repeat offender or is unremorseful about what transpired.

Fourthly, the Complainant has, on her own free will, without any compulsion, entered into a compromise and wishes to drop the present criminal proceedings against the accused.

Fifthly, given the nature of the offence, it is immaterial that the trial against the Appellant had been concluded.

Sixthly, the Appellant and the Complainant parties are residents of the same village and live in very close proximity to each other. We have no reason to doubt that the parties themselves have voluntarily settled their differences. Therefore, in order to avoid the revival of healed wounds, and to advance peace and harmony, it will be prudent to effectuate the present settlement.

CONCLUSION:

20. Consequently, and for the aforementioned reasons, we find it appropriate to invoke our powers under Article 142 of the Constitution and quash the criminal proceedings to do complete justice between the parties. As a sequel thereto, judgment and orders passed by the Trial Court and the High Court are set aside. Bail bonds, if any, are discharged. The appeal is allowed in above terms."

9. It is true that the above cited case before the Supreme Court was relating to unamended provisions of the SC & ST (PoA) Act. The said Act has been amended w.e.f., 26th January, 2016 and the offences alleged in the

instant case were committed on 9th November, 2016. Section 3(1)(r)(s) and Section 3(2)(va) after the amendment runs as follows:

"3. Punishments for offences of atrocities - (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, -

xxxxx xxxxx xxxxx

(r) Intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;

(s) abuses any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within public view;

xxxxxx xxxxx xxxxx (2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe-

xxxxx xxxxx xxxxx (va) Commits any offence specified in the Schedule, against a person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code (45 of 1860) for such offences and shall also be liable to fine."

(Offences under Section 147, 148, 323, 341 and 506 are covered in the Schedule)

10. As stated earlier, both Opposite Party No.2 and 3 have filed two separate affidavits stating that the dispute between them has been settled amicably and they do not want to proceed further against the Petitioners in the case anymore. Mr. Bhokta, learned counsel appearing for them submits in support of the stand of the Petitioners stating that the matter has already been compromised between the parties. Thus the submission of the Petitioners that the disputes between the parties have been settled and the victim Opposite Parties do not want to proceed further against the Petitioners are found admitted and no compulsion or coercion is noticed on

the part of the victims to enter into the compromise. Further, all the Petitioners and victim Opposite Parties are youths belong to the same locality and keeping in mind their socio economic status, the over-riding objective of the SC and ST (PoA) Act is not found overwhelmed in case the criminal proceeding is quashed. The allegations made against the Petitioners do not contradict the submissions of the Petitioners that the incident occurred in a fit of rage by some young people. None of the offences alleged are that serious to prescribe imprisonment for more than seven years, and no further dispute between the parties have been reported so far. Thus, having analyzed the averments and submissions made by both parties and considering the law settled on the score of quashing of proceeding on compromise, particularly the principles laid down by the Hon‟ble Supreme Court in the case of Gold Quest International Private Limited v. State of Tamil Nadu and Others, (2014) 15 SCC 235, I am of the humble view that further continuance of the criminal case in question would be an abuse of process of law. Accordingly, the order of cognizance dated 25th August, 2018 is quashed and consequently the criminal proceeding in C.T. (Spl.) Case No.99 of 2016 pending before the learned Judge, Special Court, Dhenkanal is also quashed.

11. The CRLMC is allowed.

12. An urgent certified copy of this order be issued as per rules.

(B.P.Routray) Judge M.K. Panda