Research › Search › Judgment

Allahabad High Court · body

2010 DIGILAW 1225 (ALL)

ABDUL WAHID v. STATE OF U. P.

2010-04-16

RAVINDRA SINGH

body2010
JUDGMENT Hon’ble Ravindra Singh, J.—Heard Sri A.B.L. Gaur, Senior advocate, assisted by Sri Saurabh Gaur, learned counsel for the applicants, learned A.G.A. for the State of U.P. 2. This application has been filed with a prayer to quash the impugned order dated 20.1.2010 passed by the First Additional Session Judge, Bulandshahar in S.T. No. 649 of 2005 under Section 307, IPC whereby the application for compounding the aforementioned offence has been rejected. 3. That facts in brief of this case are that the F.I.R. has been lodged by O.P. No. 2 Farid against the applicants on 23.5.2004 in case crime No. 367 of 2004 under Section 307, IPC P.S. Kotwali Nagar district Bulandshahar alleging therein that on 23.5.2004 at about 12 O clock in day, applicants came in a vehicle No. U.P. 14 H 3030, their other associates were boarding in another Gypsy No. A.P.-04-0707, they overtook the motorcycle of the son of the first informant, and got his motorcycle stopped, the applicant Abdul Wahid was armed with rifle, both the applicants discharged shots, consequently, the injured sustained injury on his chest and arms, the applicants were apprehended on the spot along with their firearms, according to the medical examination report the injured Farid sustained firearm wound of entry on the left upper arm having its exit wound injury No. 2, after investigation the charge-sheet has been submitted under Section 307, IPC on which the learned magistrate concerned has taken cognizance, thereafter the case has been committed to the Court of Sessions where charge under Section 307 I.P.C has been framed at the stage of the trial, the application has been moved by the applicants and O.P. No. 2 that the above mentioned offence may be compounded because its cross case S.T. No. 54 of 2007 has been decided in acquittal because the witnesses were declared hostile, on the basis of the medical examination report, offence under Section 324, IPC is made out, the same may be compounded with the permission of the Court, the application moved by the applicant and O.P. No. 2 has been rejected by the Vth Additional Sessions Judge, Bulandshahar on 20.1.2010 by observing that the charge has been framed under Section 307, IPC, the same is non compoundable, against the order dated 20.1.2010 present application has been filed by the applicants. 4. 4. It is contended by the learned counsel for the applicants that in the present case both the parties have entered into a compromise, there were cross cases, after compromise the evidence of the cross case was recorded in which all the witnesses of facts have been declared hostile. In the present case before entering into the compromise the statement of the witnesses of the facts have been recorded that is why they have supported the prosecution story. The accused of the cross case have been acquitted, in case the present case is not compounded, the applicants shall suffer irreparable loss. 5. In support of the above contention Sri A.B.L. Gaur Senior Advocate cited the following cases : (I) Monu and others v. State of U.P., 2007(7) ADJ 39 in which the reliance has been placed by another brother judge of this Court, in case of Madhavrao Jiwajirao Scindia and others v. Sambhajirao Chandrojirao Angre and others in which it was held by the Supreme Court that it is for the High Court to take into consideration any special feature, which appear in a particular case, to consider whether it is expedient and in the interest of justice to permit the prosecution to continue where in the opinion of the Court chance of ultimate conviction is bleak and therefore, no useful purpose is likely to be served by allowing the criminal prosecution to continue, the Court may quash the proceedings. Reliance has been made in the case of B.S. Joshi and others v. State of Hariyana, 2003(46) ACC 779. (II) Yahya Khan and Raziullah Khan v. State of U.P., 2006 (56) ACC 853 in which the prayer for re-summoning the witnesses on the basis of compromise of the applicant was allowed. (III) Sardar Avtar Singh Chhabra and another v. State of U.P. and another, 2009(5) ADJ 679 (LB) in which a complaint under Section 323, 504, 506 427, 406, 420, IPC and Section 3(1) 10 of SC.S.T. Act was quashed by another bench of this Court. (III) Sardar Avtar Singh Chhabra and another v. State of U.P. and another, 2009(5) ADJ 679 (LB) in which a complaint under Section 323, 504, 506 427, 406, 420, IPC and Section 3(1) 10 of SC.S.T. Act was quashed by another bench of this Court. (IV) Manoj and another v. State of M.P., JT 2008(10) SC 506 in which the matter was compounded by altering the conviction from Section 307/34, IPC to Section 324/34, IPC (V) Manoj Sharma v. State and others, JT 2008(11) SC 675 in which it has been held that in a very rare case the High Court can pass order in violation of the provisions of, Cr.P.C. even though as per certain decisions of the Apex Court power under Section 482, Cr.P.C. cannot be exercised to do something which is expressly barred judgements cannot be read as Euclid’s formula and in rare and exceptional cases judicial activisms can be restored to by the Court where situation warrants it in the inertest of country or society. (VI) Mahesh Chandra and another v. State of Rajasthan, AIR 1988 SC 2111 in which it has been held that it would be proper that the trial Court should permit the parties to compound the offence permission to compound was granted by the Supreme Court in the facts of the case. 6. In view of the above mentioned cases it is contended that though the offence under Section 307, IPC is not compoundable, but considering the facts and circumstances of the present case, where on the basis of the compromise another party has been acquitted the learned trial Court committed an error by rejecting the application for compounding the offence, the impugned order is illegal the same may be set aside and the trial Court may be directed to permit compounding of the above mentioned offence. 7. 7. In reply to the above contention it is submitted by the learned A.G.A. that in the present case charge-sheet has been submitted under Section 307, IPC the case has been committed to the Courts of sessions and the charge-sheet has been submitted under Section 307, IPC, witnesses of facts have been examined before the Court concerned, they have supported the prosecution story, therefore, the provisions of compounding the offence in the Code of Criminal Procedure, 1973 which is enumerated in Section 320, Cr.P.C. where a table has been given, Section 307, IPC does not come under any table of the offence in which compounding may be done. There is a specific provisions barring compounding of the offence in Section 320(9) of the, Cr.P.C. which is read as under. “No offence shall be compounded except as provided by this Section”. 8. The cases cited by the learned counsel for applicants are having some peculiar feature in which interference has been made but in the present case there is no peculiar feature in which inherent power under Section 482, Cr.P.C. may be exercised. The learned A.G.A. cited following cases. (I) Badrilal v. State of M.P., 2005(7) SCC 55 the Apex Court has taken a view that on joint petition of compromise filed on behalf of the parties only bar has been made for recording the compromise the offence under Section 307, IPC is not a compoundable one, compromise cannot be recorded but at the same time, it is well settled that while awarding sentence the effect of compromise can be taken into consideration. (II) Bankat and another v. State of Maharastra, 2005(1) SCC 343 in which it has been held by the Apex Court that subsection 9 of Section 320, Cr.P.C. specially provides that “ no offence shall be compounded except as provided by this Section” in view of the aforesaid legislative mandate only offence which are covered by table One or table Two provided under Section 320, Cr.P.C. may be compounded and the rest of the offence punishable under, IPC cannot be compounded. 9. 9. It is submitted that in view of the above mentioned cases there is bar on compounding the offence according to subsection 9 of Section 320, Cr.P.C. learned trial Court has not committed any error in rejecting the application filed by the applicants and O.P. No. 2 for compounding the offence punishable under Section 307, IPC The impugned order is not suffering from any illegality or irregularity, therefore, the prayer for quashing the same is refused. 10. Considering the facts, circumstances of the case, submission made by the learned counsel for the applicants, learned A.G.A. and from the perusal of the record it appears that in the present case statement of the witnesses have been recorded by the trial Court, thereafter, a joint application for compounding the offence under Section 307, IPC has been filed by the applicants and O.P. No. 2, the same has been rejected, the cases cited by the learned counsel for the applicants are not applicable in the present case because all the cases in which compounding was permitted in non compoundable offence treating as special case because there is specific bar under sub Section 9 of Section 320, Cr.P.C. that no offence shall be compounded except as provided by this Section. But Section 307, IPC is not mentioned in any of the table for compounding purpose. It is non compoundable offence at the stage of trial, a charge may be altered, but in the present case it has not happened. There is specific bar in the Code of Criminal Procedure, it must be kept in mind at the time of exercise of inherent power that the power under Section 482, Cr.P.C. may not be exercised where the offence is non compoundable provided the facts and circumstances of the case are compelling to do so, to meet the ends of justice in a particular case, treating it a special case, the present case cannot be treated as a special case, for the purpose of exercising the power under Section 482, Cr.P.C. in contrary to the provision of Code of Criminal Procedure, whereas it may be one of the consideration to the trial Court for the purpose of drawing the final conclusion of the trial, the learned trial Court has not committed any error in passing the impugned order, therefore, the prayer for quashing the impugned order 20.12.2010 is refused. Accordingly this application is dismissed. ————