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2010 DIGILAW 2786 (PNJ)

Rajinder Arora Alias Raju v. State Of Punjab

2010-09-29

MEHINDER SINGH SULLAR

body2010
Judgment Mehinder Singh Sullar, J. 1. Tersenessly, the facts, which need a necessary mention, for a limited purpose of deciding the core controversy involved in the present petition and emanating from the record, are that initially, Anita daughter of Dairya Lal Batra complainant (respondent No. 2) filed a criminal complaint (Annexure P1) against her husband Rajinder Arora son of Shingara Singh (petitioner) and his relatives, on accusation of having committed the offences punishable under sections 406 and 498-A read with section 34 IPC in the Court of Magistrate. 2. The trial Magistrate only convicted the petitioner (husband) and sentenced him to undergo rigorous imprisonment for a period of two years, to pay a fine of Rs. 1500/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of two months, for the commission of offence punishable under section 406 IPC, by virtue of impugned judgment of conviction and order of sentence dated 1.12.2006 (Annexure P2). 3. Aggrieved by the judgment of conviction and the order of sentence of the trial Court, the petitioner filed the appeal, which is still pending in the appellate Court at Patiala. 4. Now the petitioner has filed the present petition, in this Court, for compromising and compounding the offence and for setting aside the judgment of conviction on the basis of compromise, by invoking the provisions of section 482 Cr.PC. That is how I am seized of the matter. 5. Having heard the learned counsel for the parties, having gone through the relevant record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant petition. 6. At the very outset, possibly no one can dispute with regard to the observations of Honble Apex Court in cases Dr. Arvind Barsaul etc. v. State of Madhya Pradesh & Another, 2008(2) RCR (Criminal) 910 and this Court in cases Satya Narain v. State of Haryana, 2009 (3) RCR (Criminal) 97 and Resham Singh and others v. State of Punjab and Another, Criminal Misc. No. M-35838 of 2009 decided on 2.2.2010, relied on behalf of the petitioner, that the criminal proceedings, which are otherwise not compoundable under section 320 Cr.PC, can be quashed on the basis of compromise if the same pertains to the property and matrimonial disputes. No. M-35838 of 2009 decided on 2.2.2010, relied on behalf of the petitioner, that the criminal proceedings, which are otherwise not compoundable under section 320 Cr.PC, can be quashed on the basis of compromise if the same pertains to the property and matrimonial disputes. The same would not come to the rescue of the petitioner at this stage in the present case. 7. As is evident from the record that having completed all the codal formalities and on ultimate analysis of evidence on record, the trial Magistrate convicted and sentenced the petitioner under section 406 IPC, in the manner indicated here-in-above. 8. It is not a matter of dispute that instead of awaiting the decision of the appeal, the petitioner filed the instant petition for quashing the judgment of conviction and order of sentence of the trial Magistrate on the basis of compromise, invoking the provisions of section 482 Cr.PC. 9. Such thus being the position on record, now the sole question, though important, that arises for determination in the present petition is, as to whether the criminal proceedings, which have already culminated in the conviction of the petitioner, can legally be quashed, in exercise of jurisdiction of this Court under section 482 Cr.PC, particularly when the statutory appeal is pending before the first appellate Court at Patiala? 10. Having regard to the rival contentions of the learned counsel for the parties, to me, once the petitioner has already been convicted and availed the statutory remedy of appeal, which is still pending, then the criminal proceedings and judgment of conviction cannot legally be quashed, in exercise of jurisdiction of this Court under section 482 Cr.PC in this relevant connection. 11. True, it is, that this Court has inherent power to pass such order as may be necessary to give effect to any order under the Code or to prevent the abuse of process of any Court or otherwise to secure the ends of justice. But at the same time, the expressions "abuse of process of law" or "to secure the ends of justice" do not confer unlimited jurisdiction on the High Court and the alleged abuse of process of law or the ends of justice could only be secured in accordance with law, including the procedural law and not otherwise. But at the same time, the expressions "abuse of process of law" or "to secure the ends of justice" do not confer unlimited jurisdiction on the High Court and the alleged abuse of process of law or the ends of justice could only be secured in accordance with law, including the procedural law and not otherwise. There is no express provision under this Section empowering the High Court to pass any order in respect of any matter covered by specific provision or its exercise would infringe any specific provision of the Code. In this manner, the jurisdiction under section 482 Cr.PC cannot possibly be invoked, if alternative and statutory remedy is available to the petitioner in this context. 12. An identical question arose before the Honble Apex Court in case Having interpreted the scope of section 482 Cr.PC, it was ruled as under (para 8):- "In our view, the order passed by the High Court entertaining the petition of the convicted accused under Section 482 of the Code is, on the face of it, illegal, erroneous and to say the least, unfortunate. It was known to the High Court that the trial Court passed proceedings to the effect that final judgment and order convicting the accused were pronounced by the trial court. It was also recorded by the trial Court that as the accused were absent, the court had issued non-bailable warrants. In such a situation, instead of directing the accused to remain present before the Court for resorting to the steps contemplated by the law for passing the sentence, the High Court has stayed further proceedings including the operation of the non- bailable warrants issued by the trial court. It is disquieting that the High Court has overlooked the important legal aspect that accused have a right of appeal against the order of conviction purported to have been passed by the trial Court. In such circumstances the High Court ought not to have entertained a petition under Section 482 of the Code and stonewalled the very efficacious alternative remedy of appeal as provided in the Code. Merely because the accused made certain allegations against the trial Judge the substantive law cannot be bypassed." 13. In such circumstances the High Court ought not to have entertained a petition under Section 482 of the Code and stonewalled the very efficacious alternative remedy of appeal as provided in the Code. Merely because the accused made certain allegations against the trial Judge the substantive law cannot be bypassed." 13. Sequelly, the issue as to whether the quashing petition can be maintained, before this Court, when appeal against the conviction is pending before the first appellate Court, was considered by this court in case Raj Kumar and others v. State of Haryana and another CRM No. 21880-M of 2008 decided on 29.8.2008 and it was held as under :- "What should be the approach? The appeal against the conviction of petitioner No. 1 and against acquittal of petitioners No. 2 to 5 are pending before the first appellate Court. Would it be legally permissible to exercise inherent powers under Section 482 Cr.PC to quash criminal proceedings? It may lead to a some unhealthy precedent being set which would also not sound legally in order. So far, the petitioners have made only an oral prayer before the first appellate Court, which has been orally declined. Generally, before approaching this Court for relief under Section 482 Cr.P.C. an approach to the Court before which the proceedings are pending with a prayer for dismissal of the proceedings should ordinarily constitute a condition precedent for entertaining an application under this Section because the grievance in regard to abuse of process must ordinarily be made before the Court where the abuse is taking place. I am accordingly of the view that the petitioners must, at the first instance, file an application before the first Appellate Court for bringing on record the compromise reached between the parties, emphasizing the fact that husband and wife are now living together. The Appellate Court has ample power to permit additional evidence at the appellate stage in exercise of powers under Section 391 Cr.P.C. and the Court would be well advised to exercise such power to take these facts and compromise on record........" 14. Likewise, this Court again, in case titled as "Lt.Col.Gian Singh s/o Udam Singh v. State of Punjab and Nirmal Singh CRM No. M-27367 of 2010 decided on 17.9.2010 ruled as follows :- "if a person has the alternative remedy, then the jurisdiction of this Court under section 482 Cr.PC cannot be invoked. Likewise, this Court again, in case titled as "Lt.Col.Gian Singh s/o Udam Singh v. State of Punjab and Nirmal Singh CRM No. M-27367 of 2010 decided on 17.9.2010 ruled as follows :- "if a person has the alternative remedy, then the jurisdiction of this Court under section 482 Cr.PC cannot be invoked. As is clear from the record that the statutory criminal appeal against the judgment of conviction and order of sentence of the trial Magistrate is still pending in the appellate Court. The petitioner has now sought the quashing of the FIR. As he has already availed the statutory right of appeal, therefore, to me, the case/FIR, which has already culminated into his conviction/sentence, cannot legally be quashed in exercise of extraordinary jurisdiction of this Court under section 482 Cr.PC. 15. Not only that, section 320 Cr.PC regulates the provisions of compounding of the offence. Section 320 (5) postulates that "when the accused has been committed for trial or when he has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court to which he is committed, or, as the case may be, before which the appeal is to be heard." 16. Meaning thereby, once the petitioner has already availed the statutory remedy of appeal for setting aside the judgment of conviction, in that eventuality, the petition under section 482 Cr.PC filed by him for quashing the criminal prosecution, cannot legally be maintained. Thus, the contrary arguments of the learned counsel for the petitioner "stricto sensu" deserve to be and are hereby repelled as the observations of Honble Apex Court in Arun Shankars case and this Court in Lt.Col.Gian Singh and Raj Kumars cases (supra), are fully applicable to the facts of the present case and are the complete answer to the problem in hand. 17. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 18. In the light of the aforesaid reasons and without commenting further anything on merits and validity or otherwise of the compromise, lest it may prejudice the case of either side during the course of hearing of appeal, as there is no merit, therefore, the present petition is hereby dismissed in the obtaining circumstances of the case. 19. 18. In the light of the aforesaid reasons and without commenting further anything on merits and validity or otherwise of the compromise, lest it may prejudice the case of either side during the course of hearing of appeal, as there is no merit, therefore, the present petition is hereby dismissed in the obtaining circumstances of the case. 19. Needless to say that the petitioner would be at liberty to bring on record the compromise and the appellate Court, of course, would be well advised to take the same into deep consideration as mitigating circumstances and to pass an appropriate order, in this relevant connection, in accordance with law.