Uttarakhand High Court
Unknown vs Anil Kumar Painuly on 19 June, 2023
Office Notes,
reports, orders or
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Date COURT'S OR JUDGES'S ORDERS
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Registrar's order
with Signatures
C482 No. 1184 of 2023
With
IA No. 1 of 2023
Hon'bleSharad Kumar Sharma, J.
Mr. B.M. Pingal, Advocate, for the
applicants.
Mr. TumulNainwal, Brief Holder, for the
State of Uttarakhand.
Mr. M.S. Bisht, Advocate, for respondent
No.2.
The present applicants have preferred this
C-482 Application, praying for quashing of the
judgment of conviction as rendered on 15th
February, 2023, by the Court of 2nd Addl. Chief
Judicial Magistrate, Dehradun, in Criminal Case
No. 2038 of 2017, State Vs. Anil Kumar Painuly,
for the offence under Sections 420 and 120-B of the
IPC. Its that as against the judgment of conviction,
a Criminal Appeal No. 67 of 2023, Ajay Rana and
another Vs. State, was filed, which is still pending
consideration before the Court of Incharge Sessions
Judge, Dehradun.
In the C-482 Application, the complainant
/respondent No.2, had sought composition of an
offence, qua the present applicants only, who have
been convicted by the judgment dated 15.02.2023,
and who are presently in an Appeal before the
competent Appellate Court.
At this stage, when there is already a pending
Appeal, a Compounding Application has been
preferred by the parties, which has been duly signed
by them. Apart from the fact, that they have
participated in the proceedings through video
conferencing, the applicant Nos. 1 and 2, are
present in person and have been duly identified by
Mr. B.M. Pingal, Advocate. As far as, respondent
No.2 is concerned, she has participated in the
proceedings through video conferencing, and she
has made a statement before this Court, that she is
ready for composition of the offence against the
judgment of conviction, qua the present applicants
only. She has very specifically made out a
statement, that she is not intending to compound the
offence, qua the third accused person, namely Mr.
Anil Kumar Painuly.
The question would be and as argued too by
the Government Advocate also, as to whether the
composition of offence at the stage of pendency of
the Appeal against the judgment of conviction
could at all be ventured into by the High Court
while exercising its powers under Section 482 of
the Cr.P.C., and in relation thereto, the counsel for
the State has drawn the attention of this Court to the
provisions contained under Sub-section (5) of
Section 320 of the Cr.P.C., where the following
expression has been given by the legislature:-
"(5) When the accused has been committed
for trial or when he has been convicted and an
appeal is pending, no composition for the offence
shall be allowed without the leave of the Court to
which he is committed, or, as the case may be,
before which the appeal is to be heard."
At this stage, this Court is of the view, that
let an answer be given to the initial objection. The
bar of compounding of the offences, in which, the
conviction have already been made and Appeal is
pending, is not absolute in nature. The only
exception, which has been carved out by the
Legislature under Sub-section (5) of Section 320 of
the Cr.P.C., is that the composition in a pending
Appeal against judgment of conviction could be
made by the leave of the Court. Leave of the
Court, herein, would mean that since the Cr.P.C.
does not describe as to what does the "Court",
would mean, that the Court herein, will not exclude
the Courts exercising inherent powers under
Section 482 of the Cr.P.C. to compound the offence
even after the judgment of conviction at the stage
when the Criminal Appeal is pending consideration.
The implication of Sub-section (5) of Section
320 of the Cr.P.C. was considered by the Hon'ble
Apex Court in a judgment as reported in (2021) 3
SCC 529, Pravat Chandra Mohanty Vs. State of
Odisha and another, where the Hon'ble Apex
Court in its para 29 has observed as under :-
"29. The offence under Section 324 in the
facts of the present case can be compounded only
with permission of the Court. Sub-Section (5)
of Section 320 provides that "no composition for
the offence shall be allowed without the leave of the
Court." Thus, the composition of the offence in the
facts of the present case is not permissible only on
the agreement on the request of the appellant which
may be also accepted by the legal heirs of the
deceased but composition is permissible only by the
leave of the Court."
The Hon'ble Apex Court in the said case was
dealing with an offence, which was not
compoundable and then too, the Court has carved
out an exception that embargo of Sub-section (5) of
Section 320 of the Cr.P.C. in relation to a non
compoundable offence could not be allowed, except
with the leave of the Court.
The Hon'ble Apex Court has observed, that
the embargo created under Sub-section (5) of
Section 320 of the Cr.P.C., will not be attracted, if
leave is sought for composition of the offence in
that case in relation to a non compoundable offence.
The said ratio laid down would have to be
rather rationally read in relation to the instant case,
where the composition has been sought after the
judgment of conviction in relation to the offences,
which are otherwise compoundable under Section
320 of the Cr.P.C., as they relate to the offences
under Sections 420 and 120-B of the IPC.
In yet another judgment as rendered by the
Hon'ble Apex Court in the case of Kiran
Tulshiram Ingale Vs. Smt. Anupama P.
Gaikwad and others, as reported in 2006 CRI.L.J.
4591, a similar view has been taken, that the
provisions contained under Sub-section (5) of
Section 320 of the Cr.P.C. will not create an
absolute bar for the Court exercising their inherent
powers under Section 482 of the Cr.P.C., to
compound the offence even after the judgment of
conviction and during the pendency of appeal. The
relevant extract of the judgment are given
hereunder :-
"13. Therefore, it is clear that firstly in this
case the parties have compromised even after
conviction and, the object of compromise to live
happily, peacefully though separately after divorce.
The Sessions Court has taken cognizance of this
compromise and has reduced the conviction and
altered it to a bond under the Probation of
Offenders Act. Secondly, conviction by the first
Court is not end of the matter and appeal therefrom
is continuation of proceeding and if a revision is
filed, in case conviction is maintained, altered,
reduced, then the High Court in revision does get
power to pass effective orders in consonance with
the judgment of the Supreme Court. Conviction
does not attain finality if the appeal is filed and, if
the revision is filed against conviction by appellate
Court, there also all issues become opened before
the High Court."
Owing to the aforesaid legal preposition,
which is answered against the Government
Advocate, coupled with the fact, that the statement,
which has been recorded by the complainant, that
she is compounding the offence qua the applicants
only, the present C-482 Application would stand
allowed, so far as it relates to the present applicants
only and the judgment of conviction dated
15.02.2022, as rendered against the present
applicants in Criminal Case No. 2038 of 2017, State
Vs. Anil Kumar Painuily and others, would stand
quashed.
Subject to the aforesaid, the C-482
Application would stand disposed of, qua the
present applicants only. As a consequence of
today's judgment, the implications of Sub-section
(8) of Section 320 of the Cr.P.C. would
automatically follow.
(Sharad Kumar Sharma, J.)
Dated 19.06.2023
Shiv
