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2005 DIGILAW 24 (HP)

BIHARI LAL v. STATE OF H. P.

2005-01-13

V.K.GUPTA

body2005
JUDGEMENT V.K. Gupta, C. J. (Oral). By this common order, both these petitions are being disposed of together. 2.The only ground urged in these two petitions is about a compromise having been entered into between the accused and the complainant parties and based on such compromise the petitioners is both these petitions have invoked Section 482 of the Code of Criminal Procedure and pray for the quashing of the proceedings arising out of the F.I.Rs in question. I have been informed at the Bar that the entire evidence as well as the hearing of the final arguments in both the cases are over before the trial Court and that the trial Court has only to pronounce the judgment. 3.In support of the contention that the proceedings in both the cases can be quashed on the basis on the compromise arrived at between the parties, Mr. Sharma, learned counsel appearing for the petitioners in Cr. MMO No. 37 of 2005 and Mr. Sanjeev Bhushan, learned counsel appearing for the petitioners in Cr. MMO No. 36 of 2005 have relied upon a Supreme Court judgment in the case of Mahesh Chand and another vs. State of Rajasthan, reported in AIR 1988 SC 2111 This judgment by a two Judge Bench of the Supreme Court came to be noticed in two subsequent decisions of the Supreme Court, one in the case of Surendra Nath Mohanty and another vs. State of Orissa, reported in AIR 1999 SC 2181 and the other in the case of Bankat and another vs. State of Maharashtra, reported in (2005) 1 SCC 343. 4.A perusal of the aforesaid two judgments, in the case of Surendra Nath Mohanty and another vs. State of Orissa (supra) ( a three Judge Bench judgment) and in the case of Bankat and another vs. State of Maharashtra (supra) ( a two Judge Bench Judgment), clearly reveals that their Lordships of the Supreme Court while noticing the aforesaid earlier two Judge Bench judgment in the case of Mahesh Chand and another vs. State of Rajasthan (supra) held it to be per in curim in as much as sub Section (9) of Section 320 of the Code of Criminal Procedure was not brought to their Lordships, notice and that the course adopted by their Lordships was not in accordance with law in the aforesaid judgment in the case of Mahesh Chand and another vs. State of Rajasthan (supra). The following observations in Surendra Nath Mohanty and another (supra) being apposite are reproduced hereunder which read thus:- "7. In the case of Y. Suresh Babu (1987 (2) JT (SC) 361) the Court has specifically observed that the said case shall not be treated as a precedent. The aforesaid two decisions are based on facts and in any set of circumstances, they can be treated as per incuriam as pointed attention of the Court to sub-section (9) of Section 320 was not drawn. Hence, the High Court rightly refused to grant permission to compound the offence punishable under Section 326. 5. We reiterate that the course adopted in Ram Punjab 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 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. 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 offence. Out of the fine amount, if realized, a sum of Rs.9,000/- also be paid to the injured as compensation." 6. Similarly, in Rankat and another vs. State of Maharashtra (supra) their Lordships while referring to the judgment in Mahesh Chand and another vs. State of Rajasthan (supra) observed as under: "14. We reiterate that the course adopted in Y. Suresh Babu (2005) 1 SCC 347: JT (1987) 2 SC 361 and Mahesh Chand case (1999) 5 SCC 238: 1999 SC (Cri.) 998 was not in accordance with law." 7. Whether the disputes between the parties have been settled or not and whether the matter in issue forming the subject matter of these two cases has been compromised or not, in terms of the clear bar contained in sub Section (9) of Section 320 of the Code of Criminal Procedure, the offences in question cannot be compounded because the offences are non-compoundable. For compounding of the