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2013 DIGILAW 311 (AP)

S. Janaradhan Reddy v. S. Madhava Reddy

2013-04-23

R.Kantha Rao

body2013
ORDER This criminal petition is filed under Section 320 of Cr.P.C. by the petitioners to permit them to compound the offences in Crl. A No.38 of 2011 on the file of the VI Additional Sessions Judge, Vikarabad, Ranga Reddy District preferred against the conviction and sentence passed in SC No.186 of 2008 on the file of the Assistant Sessions Judge, Vikarabad. 2. I have heard Sri T. Pradyumnakumar Reddy, the learned Counsel appearing for the petitioners-accused and the learned Public Prosecutor representing the State. 3. The petitioners who were the accused in the sessions case and the appellants in the criminal appeal were tried by the learned Sessions Judge for the charges under Sections 147, 148, 307 read with 149 IPC on the allegation that while PW2-S. Madhav Reddy was returning from his field at 8.45 p.m., on 30.3.2008, all the accused formed themselves into unlawful assembly with an intention to kill him and when he reached the Grampanchayat Office, A4 to A7 caught hold of him while A1 to A3 beat him with stones and iron rods on his head and other vital parts of the body, PW2 sustained severe bleeding injuries and while he was in a precarious condition, the petitioners/accused threw him away in a pit and went away. 4. At the conclusion of the trial for the aforementioned charges, on hearing the prosecution and the accused, the learned Assistant Sessions Judge convicted the petitioners/accused for the offences under Sections 147, 148, 307 read with 149 IPC and sentenced them for the respective convictions recorded against them. The maximum sentence passed against the petitioners is five years rigorous imprisonment and fine of Rs.2,000/- for the offence under Section 307 read with 149 IPC. The petitioners preferred appeal against the said order of conviction and sentence and it is now pending as Crl. A No.38 of 2011 on the file of the VI Additional Sessions Judge, Vikarabad. 5. During the pendency of the appeal before the learned Additional Sessions Judge, Vikarabad, Ranga Reddy District, the petitioners filed the present petition under Section 320 Cr.P.C. seeking permission to compound the aforesaid offences, some of which were non-compoundable. Since the appeal is pending before the VI Additional Sessions Judge, Vikarabad, the petitioners ought to have filed the application under Section 320 Cr.P.C. before the learned Additional Sessions Judge, Vikarabad. Since the appeal is pending before the VI Additional Sessions Judge, Vikarabad, the petitioners ought to have filed the application under Section 320 Cr.P.C. before the learned Additional Sessions Judge, Vikarabad. However, as this Court can examine the issue of quashing the criminal offences during the pendency of the appeal before the learned VI Additional Sessions Judge, Vikarabad, treated this petition as the one filed under Section 482 Cr.P.C. and heard Sri T. Pradmuna Kumar Reddy, learned Counsel appearing for the petitioners and the learned Public Prosecutor representing the State. 6. Learned Counsel appearing for the petitioners relying on Gian Singh v. State of Punjab and another, (2012) 10 SCC 303 , arose out of a reference by a two Judge Bench of the Supreme Court which doubted the correctness of the decisions of the Supreme Court in B.S. Joshi and others v. State of Haryana and another, 2003 (1) ALD (Crl.) 842 (SC) = (2003) 4 SCC 675 , Nikhil Merchant v. Central Bureau of Investigation and another, 2008 (2) ALD (Crl.) 591 (SC) = (2008) 9 SCC 677 and Manoj Sharma v. State and others, 2008 (2) ALD (Crl.) 923 (SC) = (2008) 16 SCC 1, to a Larger Bench as to the question with regard to inherent power of the High Court under Section 482 Cr.P.C. in quashing the criminal proceedings against the offender who has settled the dispute with the victim, but the crime in which he is allegedly involved is not compoundable under Section 320 Cr.P.C. submits that since the victim/injured settled the dispute amicably with the petitioners/accused and compromised the matter with them seeks permission of this Court to compound the offences which were subject-matter of the appeal in Crl. A No.38 of 2011 on the file of the VI Additional Sessions Judge, Vikarabad against the conviction recorded by the Assistant Sessions Judge, Vikarabad in SC No.186 of 2008. According to the learned Counsel, as per the ratio laid down in Gian Singh's case (supra), this Court has inherent power to quash the FIR in exercise of powers under Section 482 Cr.P.C. though the offences under appeal are non-compoundable. 7. According to the learned Counsel, as per the ratio laid down in Gian Singh's case (supra), this Court has inherent power to quash the FIR in exercise of powers under Section 482 Cr.P.C. though the offences under appeal are non-compoundable. 7. On the other hand, the learned Public Prosecutor representing the State relied on Eshwar Singh v. State of Madhya Pradesh, (2008) 15 SCC 667 ; Shiji alias Pappu and others v. Radhika and another, (2011) 10 SCC 705 ; Badrilal v. State of M.P., (2005) 7 SCC 55 and State of Maharashtra and others v. Arun Gulab Gawali and others, 2011 (1) ALD (Crl.) 477 (SC) = 2011 Crl. LJ 89, in support of his contention and argued that the ratio in Gian Singh's case (supra), cannot be applied to the facts of the case. In all the aforesaid cases relied on by the learned Public Prosecutor, the Supreme Court consistently took the view that if the offence is non-compoundable offence which 320 Cr.P.C. expressly bars the compounding, the same cannot be compounded under Section 320 Cr.P.C. either before the trial Court or in the appeal. The Supreme Court, however, took the view that it may consider the compromise between the parties for the purpose of reduction of the sentence. The Supreme Court further laid down that simply because an offence is non-compoundable under Section 320 Cr.P.C., that by itself is no reason for High Court to refuse exercise its power under Section 482 Cr.P.C. but that power can be exercised as per settled principles, in cases where there is no chance of recording conviction against accused and entire exercise of trial is destined to be ended in futility. The Supreme Court expressed the view that the High Court under Section 482 Cr.P.C. has plenitude of power to quash proceedings, however, plenitude of power under Section 482 Cr.P.C. by itself makes it obligatory for High Court to exercise the same with utmost care and caution, width and nature of power itself demands that its exercise is sparing and only in cases where High Court is, for reasons to be recorded, of clear view that continuance of prosecution would be nothing but an abuse of process of law. The same view was expressed by the Supreme Court in the judgments under reference to the Full Bench in Gian Singh's case (supra). 8. The same view was expressed by the Supreme Court in the judgments under reference to the Full Bench in Gian Singh's case (supra). 8. After reviewing several earlier pronouncements, the Supreme Court summarized the legal position in the following terms : "The power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal Court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accordance with the guideline engrafted in such power viz.; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R. may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc., cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc.; cannot provide for any basis for quashing criminal proceedings involving such offences. High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding. The Supreme Court concluded that it cannot be said that B.S. Joshi's case (supra), Nikhil Merchant's case (supra) and Manoj Sharma's case (supra), were not correctly decided. We answer the reference accordingly. Let these matters be now listed before the concerned Bench(es)." 9. Therefore, the Supreme Court in Gian Singh's case (supra), relied on by the learned Counsel appearing for the petitioners did not say that the law laid down in the earlier cases which was to the effect that the non-compoundable offences cannot be compounded in the appeal is not the correct law. The Supreme Court approved the ratio in the earlier judgments wherein it was held that non-compoundable offences cannot be permitted to be compounded and the only consideration would be the reduction of sentence in view of the amicable settlement between the parties. Even for reducing the sentence also, the Court has to take into consideration the nature and the gravity of the crime. In view of the ratio in Gian Singh's case (supra), the power which the High Court exercises under Section 482 Cr.P.C. is distinct and different from one under Section 320 Cr.P.C. for compounding the offences. According to the Supreme Court there is no statutory bar under Cr.P.C. which can affect the inherent power of the High Court under Section 482 Cr.P.C. The only concern for the High Court while exercising the inherent jurisdiction under Section 482 Cr.P.C. is to do real and substantial justice between the parties and to prevent abuse of process of Court but the High Court will exercise such power only in exceptional circumstances. The High Court must be thoroughly convinced that refusal to exercise of inherent power would result in abuse of process of law. The High Court must be thoroughly convinced that refusal to exercise of inherent power would result in abuse of process of law. Therefore, merely because the offence is non-compoundable, the High Court would not be justified in refusing to exercise the power under Section 482 Cr.P.C. but such power can be exercised only in the circumstances stated by the Supreme Court in Gian Singh's case (supra) and in other earlier cases. In some earlier judgments, the Supreme Court exercised the power under Section 482 Cr.P.C. considering that in view of the compromise between the parties, the exercise of the trial would be futile. 10. Applying the principles laid down in Gian Singh's case (supra), if the facts of the present case are examined, the allegations against the petitioners/accused are that they formed into unlawful assembly to kill PW2 and in prosecution of their common object to kill him, they beat him with deadly weapons like iron rods and sticks on the vital parts of his body and after injuring him seriously, the petitioners/accused threw him away in a pit and went away. The Supreme Court in Gian Singh's case (supra), said that the High Court while acting under Section 482 Cr.P.C. must have due regard to the nature and gravity of the crime. If we examine the ratio laid down by the Supreme Court, it has to be understood that the Court has to consider the fact situation in each and every case and no straight-jacket formula can be laid down as to in which type of case the High Court can exercise inherent powers under Section 482 Cr.P.C. though recording conviction against the petitioners by the trial Court which is subject-matter of the appeal by itself do not disentitle the High Court from exercising jurisdiction under Section 482 Cr.P.C., certainly recording of conviction and pendency of appeal are the circumstances which can be taken into consideration for exercising jurisdiction under Section 482 Cr.P.C. the reason being after elaborate trial, the petitioners were convicted for the offence under Section 307 read with 149 IPC and for some other offences. Therefore, it cannot be said that hearing of the appeal by the learned Additional Sessions Judge, Vikarabad would be only a futile exercise in view of the compromise between the petitioners and first respondent/injured-PW2. Therefore, it cannot be said that hearing of the appeal by the learned Additional Sessions Judge, Vikarabad would be only a futile exercise in view of the compromise between the petitioners and first respondent/injured-PW2. The allegations levelled against the petitioners would obviously reveal that the petitioners formed themselves into an unlawful assembly with common object to kill PW2 and in prosecution of the common object caused injuries with deadly weapons like sticks and iron rods on the head and other vital parts of the body. Therefore, considering the nature of offence and also the fact that the conviction was recorded against the petitioners, I am not inclined to exercise inherent powers under Section 482 Cr.P.C. and quash the criminal proceedings which are the subject-matter of Crl. A No.38 of 2011 on the file of the VI Additional Sessions Judge, Vikarabad. 11. For the foregoing reasons, the criminal petition is dismissed.