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2002 DIGILAW 7 (PNJ)

Nirmal Singh v. State Of Punjab

2002-01-03

R.C.KATHURIA

body2002
Judgment R.C.Kathuria, J. 1. The petitioners have invoked the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `the Code), seeking quashing of FIR No. 141 dated 2.8.2001 registered under Sections 448, 452, 457, 380, 427, 323 read with Section 34 I.P.C. with Police Station, Basti Jodhewal, Ludhiana, copy of which is Annexure-P.1. 2. Mohammad Zahur Alam lodged a report with the Police. According to him, he had been residing with his family as a tenant of Nirmal Kaur wife of Jarnail Singh in a portion of the house situated in Gali No. 2-B, Mohalla Gujjran Basti, Rahon Road, Ludhiana for the last two years on monthly rent of Rs. 1,000/-. He had kept his articles in the room located on the first floor. On 26.7.2001 at about 9.00 a.m. Nirmal Kaur and his sons Bhupinder Singh and Lakhwinder Singh and son-in-law Nirmal Singh came to the room in occupation of the complainant in his absence. Wife of the complainant and his children were present there. They asked his wife to vacate the room in their occupation. Son of the complainant informed them that his father was not at home and they can talk to him in this regard. Thereafter they started beating his wife and son. On the alarm raised by her all the accused left that place. On the same day at about 10.30 p.m. Nirmal Kaur in the company of her sons and son-in-law again visited the complainant and broke open the door of the room on first floor. They ransacked that room and threw the goods out of the room in the courtyard on the ground floor. On the alarm raised by the wife of the complainant, the above named accused ran away. The complainant returned to the house at about 11.00 in the night and the incident was narrated to him by his wife. Thereafter, the present report was lodged by him. 3. During the course of investigation, the petitioners were arrested and released on bail by the Additional Sessions Judge, Ludhiana. Thereafter the parties had effected a compromise with the intervention of respectables of the area. The respondent No. 2 vacated the tenanted premises. An affidavit dated 16.8.2001 in respect of the compromise arrived at, copy of which is Annexure- P. 2, has also been placed on record. Thereafter the parties had effected a compromise with the intervention of respectables of the area. The respondent No. 2 vacated the tenanted premises. An affidavit dated 16.8.2001 in respect of the compromise arrived at, copy of which is Annexure- P. 2, has also been placed on record. Accordingly, it was prayed that in view of the compromise arrived at between the parties, the case registered be quashed so as to allow the parties to live peacefully. 4. In pursuance to the notice given to the State, reply has been filed by Harmohan Singh, PPS, Deputy Superintendent of Police, Rural, Ludhiana on behalf of respondent No. 1, wherein it is stated that compromise has been effected as stated in the petition but the offence mentioned in the FIR is not compoundable and for that reason a challan has been put in by the Police in the Court. 5. I have heard counsel representing the petitioners and learned Assistant Advocate General, Punjab for the State. 6. Learned counsel for the petitioners submitted before me that through the offence under Section 452 I.P.C. is not compoundable, still the Court can allow compounding of the offence under Section 482 of the Code. Reference was made to the case Avtar Singh v. Jatinder Lal Shorey and another, 2000(3) All India Criminal Law Reporter 60 and Harbhajan Singh v. State of Punjab, 2001(4) RCR(Criminal) 7, wherein offence under Sections 452 and 326 I.P.C. respectively was allowed to be compounded. 7. State counsel submitted before me that in the cases cited by the counsel for the petitioners the latest pronouncement of the Supreme Court in Ram Lal and another v. State of Jammu and Kashmir, 2000(1) RCR(Crl.) 92 (SC) : AIR 1999 SC 895 and Surendra Nath Mohanty and another v. State of Orissa, 1999(2) RCR(Crl.) 683 (SC) : AIR 1999 SC 2181, have not been noticed wherein it has been laid down that an offence declared to be non-compoundable by law cannot be compounded at all even with the permission of the Court. 8. In order to appreciate the submission made notice has to be taken of the observations made in the above mentioned cases. In Ram Lal and another v. State of Jammu and Kashmir (supra), offence under Section 326 I.P.C. was sought to be compounded. 8. In order to appreciate the submission made notice has to be taken of the observations made in the above mentioned cases. In Ram Lal and another v. State of Jammu and Kashmir (supra), offence under Section 326 I.P.C. was sought to be compounded. While making a reference to the previous decisions of the Apex Court in Y. Suresh Babu v. State of A.P., 1987(2) JT (SC) 361 and Mahesh Chand v. State of Rajasthan, AIR 1988 SC 2111, it was observed in paras 3 and 4 of the judgement as under :- "We are unable to follow the said decision as a binding precedent. Section 320 which deals with "compounding of offences" provides two Tables therein, one containing descriptions of offences which can be compounded by the person mentioned in it, and the other containing descriptions of offences which can be compounded with the permission of the Court by the persons indicated therein. Only such offenced as are included in the said two tables can be compounded and none else. Sub-section (9) of Section 320 of the Code of Criminal Procedure, 1973 imposes a legislative ban in the following terms: "(9) No offence shall be compounded except as provided by this section." It is apparent that when the decision in Mahesh Chand (AIR 1988 SC 2111) (supra) was rendered attention of the learned Judges was not drawn to the aforesaid legal prohibition. Nor was attention of the learned Judges who rendered the decision in Y. Suresh Babu 1987(2) JT (SC) 361) (supra) drawn. Hence those were decisions rendered per incuriam. We hold that an offence which law declares to be non-compoundable even with the permission of the Court cannot be compounded at all. The offence under Section 326, IPC is, admittedly, non-compoundable and hence we cannot accede to the request of the learned counsel to permit the same to be compounded." 9. Dealing with the same question in Surendra Nath Mohanty and another v. State of Orissa, 1999(2) RCR (Crl.) 683 (supra), in para 8 of the judgment it has been observed as under :- "We reiterate that the course adopted in Ram Pujan v. State of U.P., (AIR 1973 SC 2418 : 1973 Cri LJ 1612) and Mahesh Chand v. State of Rajasthan, (AIR 1988 SC 2111 : 1989 Cri LJ 121) (supra) was not in accordance with law. However, considering the fact that parties have settled their dispute outside the Court and the fact that 10 years have elapsed from the date of the incident and the further fact that appellants have already undergone 3 months imprisonment as per the sentence imposed on them, we think that ends of justice would be met if the sentence of imprisonment is reduced to the period already undergone besides imposing a fine of Rs. 5,000/- on each of the accused under Section 326 read with Section 34, IPC. We reduce the sentence as indicated above and direct that in default of payment of fine, the appellant concerned shall undergo simple imprisonment for a further period of three months. We also refrain from imposing any separate sentence on the other counts of offences. Out of the fine amoount, if realised, a sum of Rs. 9,000/- also be paid to the injured as compensation. 10. The Honble Supreme Court in the above two decisions has clarified the position of law rather in unequivocal words to the effect that it is mandatory that offence declared to be non-compoundable by law, cannot be compounded even with the permission of the Court. Therefore, the cases cited from the side of the petitioners, as such, render no assistance to them in this regard. In the latest pronouncement in Sarabjeet Singh v. State of Punjab, 2001(1) RCR(Criminal) 696, prayer made for quashing the FIR for offences under Sections 452, 427 and 159 I.P.C. on the basis of compromise entered into between the parties was declined. 11. The matter also needs to be examined from another angle. Before the Honble Supreme Court a question was raised whether in exercise of powers vested in it under Article 142 of the Constitution of India, it can adopt a course so as to the ignore the substantive statutory provisions even in cases where substantive rights of the litigants are involved. The Supreme Court in Supreme Court Bar Association v. Union of India and another, 1998(4) SCC 409, has held as follows :- "However, the powers conferred on the Court by Article 142 being curative in nature cannot be construed as powers which authorise the Court to ignore the substantive rights of a litigant while dealing with a cause pending before it. This power cannot be used to "supplant" substantive law applicable to the case or cause under consideration of the Court. This power cannot be used to "supplant" substantive law applicable to the case or cause under consideration of the Court. Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly. The very nature of the power must lead the Court to set limits for itself within which to excise 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 the Supreme Court is not a court of restricted jurisdiction of only dispute-settling. The Supreme Court has always been a law-maker and its role travels beyond merely dispute-settling. It is a "problem-solver in the nebulous areas" but the substantive statutory provisions dealing with the subject-matter of a given case cannot be altogether ignored by the Supreme 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." 12. It is not in dispute that this Court does not have power akin to the power vested in the Honble Supreme Court under Article 142 of the Constitution. Recourse to Section 482 of the Code can be made by the parties only if they are able to establish that continuance of the proceedings would be an abuse of the process of the Court or ends of justice require such a course to the followed. The inherent power vested in this Court under Section 482 of the Code, in my view, cannot be invoked to bye-pass the mandatory provisions of law. The inherent power vested in this Court under Section 482 of the Code, in my view, cannot be invoked to bye-pass the mandatory provisions of law. By no stretch of imagination it can be construed that where the specific provisions of Section 320 of the Code bar a particular course of action by the Court, the High Court in exercise of its inherent powers under Section 482 of the Code can allow that very course of action in total disregard of the mandatory provisions of the law for the sake of the parties on the ground that it facilitates them to settle the controversy. The Parliament in its wisdom has chosen to empower the Court to compound the offences tabulated in Section 320 of the Code. This Court would not bye-pass the mandate of the law by having recourse to Section 482 of the Code because the legislative mandate must be given effect to irrespective of the consequences. 13. Manifestly, offfences under Sections 452, 457 and 380 of Indian Penal Code are not compoundable and for that reason compromise entered cannot be made the basis for quashing of the First Information Report in this case. 14. For the other offences which are compoundable the parties have to move the Court after the report under Section 173 of the Code is filed. For the aforesaid reasons, there is no merit in the petition and the same is hereby dismissed.