Rajasthan High Court - Jodhpur

Kishanlal vs State on 22 April, 2022

Bench: Pushpendra Singh Bhati

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 1026/2019

1. Kishanlal S/o Sh. Gokul, Aged About 79 Years, By Caste Suthar And R/o Village Sagatara, P.s. And Teh. Sarada, Dist. Udaipur (Raj.)

2. Nandlal S/o Sh. Kishanlal, Aged About 38 Years, By Caste Suthar And R/o Village Sagatara, P.s. And Teh. Sarada, Dist. Udaipur (Raj.)

----Appellants Versus

1. State, Through Pp

2. Smt. Meera D/o Sh. Punja Meghwal, R/o Village Sagatara, P.s. And Teh. Sarada, Dist. Udaipur (Raj.)

----Respondents

For Appellant(s) : Mr. Pradeep Shah For Respondent(s) : Mr. S.K. Bhati, PP Mr. Pawan Singh

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

22/04/2022

1. In wake of instant surge in COVID-19 cases and spread of its

highly infectious Omicron variant, abundant caution is being

maintained, while hearing the matters in Court, for the safety of

all concerned.

2. It is jointly submitted at Bar by learned counsel for the

parties that a compromise has been arrived at between the parties

and the police had already submitted a negative final report

before the learned court below. Thus, as per learned counsel for

the parties, the complainant is not inclined to proceed further in

the matter.

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3. Learned counsel for the parties have placed reliance on the

precedent law laid down by the Hon'ble Supreme Court in the case

of Gian Singh V/s. State of Punjab & Anr. [(2012) 10 SCC

303].

Relevant portion of the judgment is reproduced below:-

"...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 or F.I.R may be exercised where the offender and 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 serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like 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 pre-dominatingly civil favour stand on 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

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the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put 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."

4. It is also submitted that the aforementioned compromise

coupled with the negative final report submitted by the police, the

learned court below vide order dated 07.02.2019, while declining

to accept the same, proceeded to take cognizance of the offence

under Sections 447 and 427 of IPC and Section 3(1)(v) of SC/ST

(Prevention of Atrocities) Act, 1989, against the appellants.

5. Heard learned counsel for both parties and, perused the

record of the case and the judgments cited at the Bar.

6. This Court is conscious of the decisions rendered by the

Hon'ble Apex Court in:-

6.1 Amit Kapoor Vs. Ramesh Chander and Ors. (2012) 9

SCC 460 wherein the Hon'ble Apex Court, with regard to the

exercise of a High Court's inherent powers under Section 482

Cr.P.C, observed asunder:-

"The jurisdiction of the Court under Section 397 can be exercised so as to examine the correctness, legality or proprietary of an order passed by the trial court or the inferior court, as the case may be. Though the section does not specifically use the expression 'prevent abuse of process of any court or otherwise to secure the ends of justice', the jurisdiction under Section 397 is a very limited one. The legality, proprietary or correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done.

The jurisdiction could be exercised where there is palpable error, non-compliance with the provisions of law, the decision

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is completely erroneous or where the judicial discretion is exercised arbitrarily. On the other hand, Section 482 is based upon the maxim quando lex liquid alicuiconcedit, conceder videtur id quo res ipsa esse non protest, i.e., when the law gives anything to anyone, it also gives all those things without which the thing itself would be unavoidable. The Section confers very wide power on the Court to do justice and to ensure that the process of the Court is not permitted to be abused.

It may be somewhat necessary to have a comparative examination of the powers exercisable by the Court under these two provisions. There may be some overlapping between these two powers because both are aimed at securing the ends of justice and both have an element of discretion. But, at the same time, inherent power under Section 482 of the Code being an extraordinary and residuary power, it is inapplicable in regard to matters which are specifically provided for under other provisions of the Code. To put it simply, normally the court may not invoke its power under Section 482 of the Code where a party could have availed of the remedy available under Section 397 of the Code itself. The inherent powers under Section 482 of the Code are of a wide magnitude and are not as limited as the power under Section 397. Section 482 can be invoked where the order in question is neither an interlocutory order within the meaning of Section 397(2) nor a final order in the strict sense. Reference in this regard can be made to Raj Kapoor and Ors. v. State of Punjab and Ors. MANU/SC/0210/1979 : AIR 1980 SC 258 : (1980) 1 SCC 43]}. In this very case, this Court has observed that inherent power under Section 482 may not be exercised if the bar under Sections 397(2) and 397(3) applies, except in extraordinary situations, to prevent abuse of the process of the Court. This itself shows the fine distinction between the powers exercisable by the Court under these two provisions. In this very case, the Court also considered as to whether the inherent powers of the High Court under Section 482 stand repelled when the revisional power under Section 397 overlaps. Rejecting the argument, the Court said that the opening words of

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Section 482 contradict this contention because nothing in the Code, not even Section 397, can affect the amplitude of the inherent powers preserved in so many terms by the language of Section 482. There is no total ban on the exercise of inherent powers where abuse of the process of the Court or any other extraordinary situation invites the court's jurisdiction. The limitation is self-restraint, nothing more. The distinction between a final and interlocutory order is well known in law. The orders which will be free from the bar of Section 397(2) would be the orders which are not purely interlocutory but, at the same time, are less than a final disposal. They should be the orders which do determine some right and still are not finally rendering the Court functus officio of the lis. The provisions of Section 482 are pervasive. It should not subvert legal interdicts written into the same Code but, however, inherent powers of the Court unquestionably have to be read and construed as free of restriction."

6.2 Ramawatar Vs. State of Madhya Pradesh AIR 2021 SC

5 228 wherein the Hon'ble Apex Court, while giving its imprimatur

to an earlier decision rendered in Ramgopal and Anr. Vs. The

State of Madhya Pradesh 2021 (4) Crimes 17 (SC), and

made the following observations:-

" it would be ad rem to outrightly refer to the recent decision of this Court in the case of Ramgopal and Anr. v. The State of Madhya Pradesh1, 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 Code of Criminal Procedure 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 Code of Criminal Procedure. It was further held that the touchstone for exercising the extra-ordinary powers Under Article 142 or Section 482 Code of Criminal Procedure, would be to do complete justice. Therefore, this Court or the High Court, as the case may be, after having given due regard

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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.

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 relevnat considerations.

In view of the settled proposition of law, we affirm the decision of this Court in Ramgopal (Supra) and re- iterate 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.

We, however, put a further caveat that the powers Under Article 142 or Under Section 482 Code of Criminal Procedure, are exercisable in post-conviction matters only where an appeal is pending before one or the other Judicial forum.

Ordinarily, when dealing with offences arising out of special statutes such as the SC/ST Act, the Court will

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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.

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 Code of Criminal Procedure.

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

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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."

7. There is nothing on the record, nor have the learned counsel

for the private respondent or the public prosecutor brought to the

attention of this Court that the compromise entered into the

parties is the result of force or compulsion, and therefore may be

safely assumed that the compromise is a result of exercise of the

free will of the concerned parties.

7.1 Furthermore, the appellants and the complainant are

residents of the same village, and live in proximity to each other

and therefore, it would be in the interest of fostering peace in the

village to accept the compromise entered into by the concerned

parties.

8. Thus, in the peculiar facts and circumstances of the present