The Gujarat High Court recently comprising of a bench of Justice Samir Dave while allowing a revision application under Section 397 of CrPC seeking quashing of a judgment convicting the Petitioner under Section 138 of Negotiable Instruments Act, reiterated the distinction between Sections 482 and Sec 320 of the Code. (KAMLESH KUMAR MOHANJI METHANA v/s STATE OF GUJARAT)
Facts of the case
The applicant by this application under section 397 of the Code of Criminal Procedure prayed to quash and set aside the judgment and order passed by the learned Sessions Judge, Banaskantha at Palanpur and the judgment and order passed by the learned 2nd Additional Chief Judicial Magistrate, Palanpur.
In view of the fact that the parties have settled their disputes, learned advocate for respondent no.2- original complainant jointly with learned advocate for the applicant submitted that offence may be permitted to be compounded. The applicant was put to trial in the Court of the learned 2ndAdditional Chief Judicial Magistrate, Palanpur for the offences punishable under section 138 of the Negotiable Instrument Act. The Trial Court vide judgment and order held the applicant herein guilty of the offence punishable under section 138 of the Negotiable Instrument Act.
As the applicant came to be convicted by the Trial Court, they preferred Criminal Appeal in the Court of the learned Sessions Judge, Banaskantha at Palanpur. The appeal came to be rejected. Being aggrieved with the same, the applicant has come up with this application.
Courts observation and order
The bench at the very outset referred to the case of Gian Singh vs. the State of Punjab and Another reported in (2012) 10 SCC 303, wherein the Apex court has considered the relative scope of section 482 and section 320 of the Code and has laid down the parameters as to in what kind of cases and facts and circumstances, the High Court can advert to its inherent power under section 482 of the Code to quash criminal proceedings.
“In respect of serious offences like murder, rape, dacoity, etc; or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between offender and victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to victim and the offender and victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or F.I.R if it is satisfied that on the face of such settlement, there is hardly any likelihood of offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated.”
The bench observed, “Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment.”
The bench further noted, “It is pertinent to note that the above issue is squarely covered by a Full Bench decision of the Bombay High Court rendered in case of Abasaheb Yadav Honmane Vs. State of Maharashtra reported in (2008) 2 Mah. L.J. 856, and in a decision of this Court in case of Ashishbhai Nagindas Navsarivala Vs. State of Gujarat and Anr., decided on 16.11.2017 in Criminal Misc. Application No.27481 of 2017 as well as in decisions of the Coordinate Benches of this Court in case of Rajeshbhai @ Raju Mangubhai Patel Vs. State of Gujarat and Anr., decided on 20.11.2017 in Special Criminal Application (Quashing) No.8878 of 2017 and in case of Bachubhai Mangalbhai Chavda Vs. State of Gujarat and Anr., decided on 09.01.2013 in Criminal Revision Application No.160 of 2011, the inherent powers under section 482 of the Code of Criminal Procedure or the extraordinary jurisdiction under Article 226 of the Constitution of India include the powers to quash the FIR, investigation or any criminal proceedings pending before the High Court or any court subordinate to it and are of wide magnitude and ramification.\
In the exercise of powers conferred under Article 226 of the Constitution of India read with section 482 of the Code of Criminal Procedure, exercise of inherent powers by the High Court would depend upon the facts and circumstances of each case. It is not permissible to have a straight jacket formula. No precise and inflexible guidelines can be provided.”
The bench allowing the application remarked, “The settlement has brought peace in the society and the parties who were once aggrieved, are now contended and are willing to lead harmonious life. In such circumstances, continuance of criminal proceedings will not serve any purpose. On the contrary, it would harassing and also counteractive to the congenial relationship which is restored between the parties.”
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