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2009 DIGILAW 648 (JK)

Showkat Ahmad Parray (Dr. ) v. State Of J. &K.

2009-12-18

GH.HASNAIN MASSODI

body2009
1. The fate of instant petition under section 561-A hinges on answer to the above question. 2. The facts are as under:- The petitioner and proforma respondent posted on 9.11.2005 at Sub Divisional Hospital Kangan allegedly induced and persuaded one Mst. Taja wife of Saif-ud-Din Mir R/o Hayan, Palpora, to get her uterus removed at the private clinic of the petitioner at Ganderbal as according to the petitioner and proforma respondents, there were no adequate facilities in Sub Divisional Hospital Kangan for the surgical operation. It is alleged that the petitioner and proforma respondents employing deceitful means, made the patient to visit private clinic of the petitioner, where an amount of Rs.5000/- was extracted from the patient, though her uterus was not removed as the patient was found to be anaemic. The matter was reported to Police Station Kangan by Shri Saif-ud-Din Mir husband of the patient, where upon case FIR No. 128/2005 under sections 420 read with section 109 RPC, was registered. After usual investigation charge sheet against the accused Dr. Showkat Ahmad Parray and petitioners Medical Assistant Mohammad Maqbool Mir (proforma respondents), alleging commission of offence punishable under section 420 , 109 RPC was presented before JMIC Kangan. The investigating agency was not able to collect any evidence against Dr. Roshan Din Kasana (proforma respondent) and a report u/s 169 Cr. P.C in respect of Shri Kasana though named in the FIR. Though the charge sheet alleged commission of offence punishable under section 420 read with section 109 RPC, yet learned Magistrate vide order dated 25.09.2006 arrived at the conclusion that the charge sheet and the connected material disclosed commission of offence punishable under section 161 and 168 RPC in addition to the offences alleged in the charge sheet. The petitioner and proforma respondent Mohammad Maqbool Mir were formally charged of the offence punishable under section 420, 161, 168 read with section 109 RPC on 27th September 2006. The respondent Roshan Din Kasana was charged of the aforesaid offences on 22nd of October 2008. All the three accused denied the charge and asked for regular trial. On 27.12.2008 the complainant, his wife P/W Taja along with accused (petitioner and proforma respondents) appeared before the court with an application praying therein that the parties had entered into a compromise and decided to compound the matter. All the three accused denied the charge and asked for regular trial. On 27.12.2008 the complainant, his wife P/W Taja along with accused (petitioner and proforma respondents) appeared before the court with an application praying therein that the parties had entered into a compromise and decided to compound the matter. Learned JMIC Kangan entertained the application, recorded the statements of the parties on proper identification, dismissed the charge sheet as compounded, acquitted the accused of all charges and discharged of their bail bonds. On 5.5.2009 learned JMIC Kangan on a written application of the Prosecuting Officer, summoned the case file from the Record Room. It was urged by the Public Prosecutor that offence punishable under section 161, 168 RPC were non compoundable and learned JMIC Kangan lacked jurisdiction to allow the offence punishable under section 161, 168 RPC to compound and dismiss the charge sheet. Learned JMIC Kangan on going through the record found that the order dated 27.12.2008 made reference only to offence punishable under section 420 RPC and neither any reference to offence punishable u/s 161 and 168 was made in the order nor were the offences compoundable. Learned JMIC Kangan thereafter proceeded to restore the charge sheet to its original number and directed issuance of a bailable warrant in the amount of Rs. 10,000/-against the accused i.e petitioner and pro forma respondents. 3. The petitioner aggrieved of the order dated 5.5.2009 reviving/restoring the charge sheet to its original number and proceed afresh in the matter has come up with the petition u/s 561-A Cr. P.C. The sum and substance of case set out by the petitioner is that JMIC Kangan had no jurisdiction to recall/review his earlier order dated 27.12.2008 and restore the charge sheet to its original number. It is pleaded that even if some illegality in the order dated 27.12.2008 was come across by learned JMIC Kangan, the right course open to the trial Magistrate was to afford opportunity to the petitioner and proforma respondents who were directly effected by such order, an opportunity to project their view point and thereafter make a reference to the High Court for guidance. The order dated 5.5.2009 according to the petitioner amounts to abuse of process of the courts and is liable to be quashed. Heard and considered. 4. The order dated 5.5.2009 according to the petitioner amounts to abuse of process of the courts and is liable to be quashed. Heard and considered. 4. The primary argument of the learned counsel for the petitioner is that the order dated 5.5.2009 impugned herein, has been passed by the trial Magistrate without any jurisdiction, power or authority. It is insisted that the courts subordinate to the High Court, have not been clothed with the powers under Code of Criminal Procedure to review or recall earlier order. Its next argued that even though the offences punishable under section 161, 168 RPC are not compoundable, yet having regard to the fact that the parties had settled the matter and the grievance of the complainant party had been set right, the trial Magistrate ought not to have reopened the matter. There is no scope for any disagreement with the legal proposition that a criminal court Magisterial as well as Sessions, does not have power to recall and review its orders. Learned trial Magistrate thus had no power to summon the case file closed on 27.12.2008, even if erroneously, sit in appeal or review the order of his predecessor in office, restore the charge sheet to its original number and issue warrants against the accused. If learned trial court lacked jurisdiction to review and recall its order or to restore the charge sheet to its original number, much less had it jurisdiction to recall/review earlier order at the back of the petitioner and pro forma respondents. The order dated 5.5.2009 is thus without jurisdiction and liable to be set aside. 5. However, this does not end the matter. This court is confronted with the situation where earlier order dated 27.12.2008 is also not in conformity with law. The law makers in their wisdom have classified offences into two categories viz compoundable offences and non compoundable offences. The offences falling under second category/class have been declared to be non compoundable and thus a complainant, the victim or injured in such matters has no right or authority to compound the matter. The classification made, is reasonable and based on intelligible differentia. Some offences have been found to be too serious and grave, to be left to the discretion of the complainant - victim or injured to be settled with the accused. The classification made, is reasonable and based on intelligible differentia. Some offences have been found to be too serious and grave, to be left to the discretion of the complainant - victim or injured to be settled with the accused. The offences categorized as non compoundable are so heinous that the offences alarm and pose threat to the society at large and not merely to the victim of the offence. Societal concerns demand that such offences should not be left to the individual to be settled at his/her choice. Punishment to an accused on proof of his/her guilt is the only option with the State. The trial Magistrate while entertaining the compromise in respect of non compoundable offences and dismissing the charge sheet as compounded, has violated mandate of law. The order dated 27.12.2008 thus suffers from a grave irregularity. So viewed the order dated 27.12.2008 which was erroneously reviewed and recalled by the trial Magistrate, is illegal and so is the order dated 5.5.2009 where by the earlier order has been recalled. In case order dated 5.5.2009 is quashed, the order dated 27.12.2008 cannot be left untouched and allowed to stay. 6. It is well settled law that while a Subordinate court on the criminal side has no inherent powers vested in it, the inherent jurisdiction passed by the High Court under section 561-A is not to confine to case pending before it but extends to all cases which may come to its notice, whether in appeal, revision or otherwise. There is thus no reason to exercise inherent powers u/s 561-A to quash the order dated 5.5.2009 as well as order dated 27.12.2008. 7. For the reasons discussed above, in exercise of inherent powers the orders passed by learned JMIC Kangan on 5.5.2009 and 27.12.2008 in case titled State v. Dr. Showkat Ahmad Parray & others, are quashed. Learned Trial Magistrate shall pick up threads from 27.12.2008 when the application by the parties, signifying their intention to compound the matter, was filed. Learned trial Magistrate shall proceed in the matter in accordance with the law. 8. It is urged by learned counsel for the petitioner that in view of law laid down in AIR 1988 SC 2111, 1991 Cr. L.J 751- M.P, 1992 Cr.L.J 2106 Bombay, 2001 Cr. L.J 1692 Raj, 1993 Cr. Learned trial Magistrate shall proceed in the matter in accordance with the law. 8. It is urged by learned counsel for the petitioner that in view of law laid down in AIR 1988 SC 2111, 1991 Cr. L.J 751- M.P, 1992 Cr.L.J 2106 Bombay, 2001 Cr. L.J 1692 Raj, 1993 Cr. L.J 2076 Raj and 2003 Crimes All., the trial court may for the reasons to be recorded, allow the parties to compound an offence otherwise categorized as non compoundable in the schedule - II of the Code of Criminal Procedure. It needs to be pointed that no such case was set up before the trial Magistrate. The parties are not precluded from making such a prayer before the trial Magistrate and the trial Magistrate in the event such prayer is made, shall be free to pass orders in accordance with law. 9. The parties shall appear before the trial court on 31.12.2009. Record be returned. Disposed off alongwith connected CMP.