Rajasthan High Court - Jodhpur

Gopal Krishan vs State Of Rajasthan ... on 29 August, 2023

Bench: Manoj Kumar Garg

[2023:RJ-JD:27386]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 5129/2023

1. Gopal Krishan S/o Mohan Lal Dhupad, Aged 64 Years,

2. Rodu S/o Chittar Bheel, Aged About 47 Years,

3. Uda S/o Dhanna Gurjar, Aged About 45 Years,

4. Jagdish S/o Sukhdev Jat, Aged About 55 Years, All R/o Dhoriya, Phulliya Kalla Police Station, District Bhilwara.

5. Ratan Gadri S/o Balu Gadri, Aged About 48 Years, R/o Bheempura, Phulliya Kalla Police Station, District Bhilwara.

6. Rameshwar S/o Ramkishan Gurjar, Aged About 50 Years, R/o Sardarpura, Phulliya Kalla Police Station, District Bhilwara.

7. Ladu Gurjar S/o Mewa Gurjar, Aged About 58 Years, R/o Ratanpura, Phulliya Kalla Police Station, District Bhilwara.

----Petitioners Versus

1. State Of Rajasthan, Through Pp

2. Ramniwas S/o Gokul Kalal, R/o Motipura, Phulliya Kalla Police Station, District Bhilwara.

                                                                  ----Respondents


For Petitioner(s)          :    Mr. TRS Sodha
For Respondent(s)          :    Mr. SK Mehar, PP
                                Mr. Ashok Khatri



          HON'BLE MR. JUSTICE MANOJ KUMAR GARG

                                     Order

29/08/2023

Instant misc. petition has been filed by the petitioners

against the order dated 11.12.2021 passed by learned Addl.

Sessions Judge, Shahpura, District Bhilwara (National Lok Adalat,

Bench-I, Shahpura, District Bhlwara) in Cr. Appeal No.31/2020

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whereby the learned Judge partly accepted the compromise

arrived at between the parties and acquitted the petitioners from

offence under Section 447, 427 IPC, but he refused to accecpt the

compromise for offence under Section 147 IPC.

Learned counsel for the petitioners submits that the learned

trial court vide judgment dated 25.11.2019 convicted the

petitioners for offences under Sections 447, 427, 147 IPC and

gave benefit of probation under Section 4(1) of Probation of

Offenders Act. Against their conviction, the petitioners preferred a

criminal appeal before the appellate court. During the pendency of

the appeal, the respondent No.2-complainant and the petitioners

had entered into a compromise in the spirit of Lok Adalat but the

appellate court i.e. Additional Session Judge, Shahpura, District

Bhlwara, vide order dated 11.12.2021 while acquitting the

petitioners of offences under Sections 447, 427 IPC on the basis of

compromise, refused to accept the compromise for offence under

Section 147 IPC and fixed the matter for further proceedings.

Counsel for the petitioner submits that since the compromise has

arrived at between the parties, therefore, the petitioners may also

be acquitted for offence under Section 147 IPC.

Learned counsel for the respondent No.2 has submitted that

the respondent No.2 has no objection if the conviction of the

petitioners for offence under Section 147 IPC is also set aside on

the basis of comproise.

I have considered the arguments advanced before me and

carefully gone through the material available on record.

Admittedly, the parties have entered into a compromise, but

the question before this court is whether the power under Section

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482 Cr.P.C. can be exercised for quashing of prosecution/

conviction upon compromise between the convict and the

complainant.

In Khursheed and others v. State of U.P., Appeal (crl.)

1302 of 2007, decided on 28-9-2007, the appellants were

convicted by Trial Court under sections 325, 323 read with 34 IPC.

Their appeal against conviction was dismissed by the Sessions

Court and revision petition was also dismissed by High Court. The

convicts approached the Apex Court and Hon'ble Supreme Court

held as under:-

[12]. An offence of causing grievous hurt punishable under Section 325 IPC is covered by sub-section (2) of Section 320 of the Code. It is thus clear that an offence punishable under Section 325 IPC is also compounded with the permission of the Court.

[13]. The parties have compounded the offences. As stated in the compromise deed, Gurfan Ahmad, complainant and his mother Kulsoom @ Bhoori (injured) did not want any action against the appellants (accused). The parties are neighbours, their houses are situated adjacent to each other and they have been living peacefully for last many years and there is no dispute among them. It is further stated that to continue sweet relationship and harmony, complainant side does not want to take any action against the accused. A prayer is, therefore, made to accept the compromise.

[14]. On the facts and in the circumstances of the case, and considering the Deed of Compromise and having heard learned counsel for the parties, in our opinion, ends of justice would be met if we grant necessary permission for compounding an offence punishable under Section 325 read with Section 34 IPC as required by sub-section (2) of Section 320 of the Code. The offence punishable under Section 323 IPC has already been compounded by the parties.

[15]. Sub-section (8) of Section 320 states that the compounding of offence under the section shall have an effect of acquittal of the accused with whom the offence has been compounded. The resultant effect of compounding of offences would be that the accused

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should be acquitted. In other words, once the offences have been compounded and the requisite permission is granted by the Court, the accused must be acquitted."

In Dr. Arvind Barsaul etc. v. State of Madhya Pradesh,

(2008) 5 SCC 794, after the conviction under section 498-A IPC,

the victim wife and the convict husband had compromised their

disputes, and sought setting aside of conviction based on the

compromise. Hon'ble Supreme Court holds as under:

[10]. We have heard learned counsel for the parties at length. The parties have compromised and the complainant Smt. Sadhna Madnawat categorically submitted that she does not want to prosecute the appellants. Even otherwise also, in the peculiar facts and circumstances of the case and in the interest of justice, in our opinion, continuation of criminal proceedings would be an abuse of the process of law. We, in exercise of our power under Article 142 of the Constitution, deem it proper to quash the criminal proceedings pending against the appellants emanating from the FIR lodged under section 498A Indian Penal Code. The appeal is accordingly disposed of.

In Ravinder Kaur v. Anil Kumar, (2015) 8 SCC 286,

Hon'ble Supreme Court, in a matter arising out of conviction,

permitted the compounding of offence under section 494 IPC.

In Sube Singh v. State of Haryana, [2013 (4) RCR (Cri)

102], a Division Bench of this Court holds as under:-

[17]. The magnitude of inherent jurisdiction exercisable by the High Court under Section 482 Criminal Procedure Code with a view to prevent the abuse of law or to secure the ends of justice, however, is wide enough to include its power to quash the proceedings in relation to not only the non- compoundable offences notwithstanding the bar under Section 320 Criminal Procedure Code but such a power, in our considered view, is exercisable at any stage save that there is no express bar and invoking of such power is fully justified on facts and circumstances of the case.

[21]. In the light of these peculiar facts and circumstances where not only the parties but their close relatives

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(including daughter and son-in-law of respondent No. 2) have also supported the amicable settlement, we are of the considered view that the negation of the compromise would disharmonize the relationship and cause a permanent rift amongst the family members who are living together as a joint family. Non-acceptance of the compromise would also lead to denial of complete justice which is the very essence of our justice delivery system. Since there is no statutory embargo against invoking of power under Section 482 Criminal Procedure Code after conviction of an accused by the trial Court and during pendency of appeal against such conviction, it appears to be a fit case to invoke the inherent jurisdiction and strike down the proceedings subject to certain safeguards."

In Maya Sanjay Khandare v. State of Maharashtra,

[2021 (1) RCR (Cri) 450], a three-member bench of Bombay High

Court observed as follows:

(A) In a prosecution which has culminated in a conviction, whether the power u/s. 482 Cr.P.C. ought to be exercised for quashing the prosecution/conviction altogether, (instead of maintaining it and considering the issue of modification of the sentence) upon a settlement between the convict and the victim/complainant?

[33] While answering Question (A) we may observe in the light of the settled legal position as under:

At the conclusion of the criminal trial the Court on finding the evidence on record led by the prosecution to be sufficient to prove the guilt of the accused would proceed to convict the accused. The remedy of challenging the order of conviction is available to the accused by way of an appeal. Any compromise entered into post-conviction for a non-compoundable offence cannot by itself result in acquittal of the accused.

Similarly, the Court has no power to compound any offence that is non-compoundable and not permitted to be compounded under Section 320 of the Code. The compromise entered into therefore is just a mitigating factor that can be taken into account while hearing the appeal/revision challenging the conviction and which factor has to be taken into consideration while imposing appropriate punishment/sentence. It is not permissible to set aside the judgment of conviction at the appellate/revisional stage only on the ground that the parties have entered into a compromise. In a given case the appellate Court/revisional Court also has the option

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of not accepting the compromise. Thus if the judgment of conviction cannot be set aside in an appeal/revision only on the ground that the parties have entered into a compromise similar result cannot be obtained in a proceeding under Section 482 of the Code.

Hence, we hold that ordinarily the contention that the convict and the informant/complainant have entered into a compromise after the judgment of conviction can be raised only before the appellate/revisional Court in proceedings challenging such conviction. It would be a sound exercise of discretion under Section 482 of the Code and in accordance with the law of the land to refuse to quash criminal proceedings post-conviction for a non-compoundable offence only on the ground that the parties have entered into a compromise. Instead the Court can permit the convicted party to bring to the notice of the appellate/revisional Court the aspect of compromise. Having said so, it is only in rarest of rare cases that the Court may quash the criminal proceedings post-conviction for a non-compoundable offence on settlement between the convict and the informant/complainant. To illustrate, where a jurisdictional issue going to the root of the matter is raised for challenging the conviction or in matrimonial disputes where the parties have agreed to settle their differences, jurisdiction under Section 482 of the Code could be exercised. Such exercise of jurisdiction should be limited to the rarest of rare cases when found necessary to prevent the abuse of the process of the Court or to secure the ends of justice. Thus while holding that inherent power under Section 482 of the Code could be exercised for quashing criminal proceedings even at the appellate/revisional stage as held in Kiran T. Ingale [(Kiran Tulshiram Ingale vs. Anupama P. Gaikwad and Ors., MANU/MH/1008/2006 : 2006 2 Mh.L.J. (Cri) 402)] such exercise of jurisdiction should be limited to the extent stated hereinabove. The ratio of the decision in Kiran T. Ingale (supra) has to be applied subject to aforesaid limitations. Further, the expression "criminal proceedings" would cover the entire journey of the proceedings commencing from its initiation till the proceedings culminate giving it seal of finality. Question (A) is answered accordingly.

In the light of the aforesaid judicial precedents, this Court is

of the opinion that no fruitful purpose would be served in

continuation of the criminal proceedings against the petitioners

because the parties have entered into a compromise and

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therefore, the order dated 11.12.2021 passed by learned

Additional Session Judge, Shahpura, District Bhilwara to the

extent of refusing to acquit the petitioners for offence under

Section 147 IPC on the basis of compromise is hereby quashed

and set aside. The entire proceeding in Criminal Appeal

No.31/2020 pending before the appellate court for offence under

Section 147 IPC is quashed and set aside.