Research › Search › Judgment

Uttarakhand High Court · body

2014 DIGILAW 412 (UTT)

Bhola v. State of Uttarakhand

2014-09-23

U.C.DHYANI

body2014
JUDGMENT U.C. Dhyani, J. 1. Accused-appellant Bhola was convicted under Section 308 of IPC and was directed to undergo simple imprisonment for thirty months along with a fine of Rs. 3,000/-. Co-accused Ravi and Manoj (non-appellants) were convicted under Section 323 of IPC read with Section 34 of IPC and were sentenced accordingly vide judgment and order dated 28.08.2014 passed by learned 2nd Additional Sessions Judge, Rishikesh. Aggrieved against the same, present Criminal Appeal was filed on behalf of the appellant Bhola. 2. A compounding application has been filed by the parties to indicate that they have buried their differences and have settled their disputes amicably. The compounding application is supported by the joint compromise, duly signed by Bhola (accused-appellant) and Amit Kumar (injured). Appellant Bhola has also filed an affidavit indicating the same. So is Amit Kumar, who has not only filed the affidavit, but is also present before the Court, duly identified by his counsel Mr. Alauddin, Advocate. He says that he is not interested in prosecuting the appellant, inasmuch as, the dispute between them has been resolved amicably. Amit Kumar is the injured, who sustained injuries in the incident, which occurred on 14.01.2011. Amit Kumar prays for permitting him to compound the offence alleged and proved against the Bhola (present appellant). He also says that the appellant be exonerated of the charge levelled and proved against him. 3. The offence punishable under Section 308 IPC is a non-compoundable offence within the scheme of Section 320 of Cr. P.C. The question is – whether the injured should be permitted to compound such an offence against the convict/appellant or not? 4. Learned counsel for the parties drew the attention of this Court towards the judgment rendered by Hon’ble Apex Court on 6th December, 2012, in Transfer Petition (Criminal) No. 115 of 2012 Dimpey Gujral vs. Union Territory through Administrator U.T. Chandigarh and others, 2013 (123) AIC 119 (S.C.) in which the Hon’ble Apex Court, relying upon Gian Singh v. State of Punjab and another, (2013) 1 SCC (Cri) 160, permitted the injured to compound the offence punishable under Section 307 IPC. 5. 5. Learned counsel for the parties drew the attention of this Court towards the ruling of Gian Singh v. State of Punjab and another, (2013) 1 SCC (Cri) 160, in which Hon’ble Supreme Court observed as below:- “The position that emerges from the above discussion can be summarised thus: 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 accord 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. But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, 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 questions is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.” 6. Taking a leaf out of the book of Hon’ble Apex Court in Dimpey Gujral vs. Union Territory through Administrator U.T. Chandigarh and others, 2013 (123) AIC 119 (S.C.), and Gian Singh v. State of Punjab and another, (2013) 1 SCC (Cri) 160, this Court is of the view that the informant/injured Amit Kumar should be permitted to compound the offence punishable under Section 308 IPC against the accused-appellant in the interest of justice. Otherwise also, learned counsel for the informant/injured conceded that the criminal appeal deserves to be allowed on merits also. 7. A reference may also be had to the decision of Narendra Singh and others vs. State of Punjab and another, (2014) 6 SCC 466 in this regard. 8. It will also be useful to reproduce herein Sub-Section (5) of Section 320 Cr. P.C. as follows:- “320 (5) - 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.” 9. P.C. as follows:- “320 (5) - 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.” 9. Since the Criminal Appeal is pending before this Court against the conviction of the accused-appellant, therefore, injured is seeking leave of this Court to permit him to compound the offence, for which the accused-appellant has been convicted. Sub-Section (5) of Section 320 Cr. P.C. is meant for those offences, which are compoundable offences within the Scheme of Section 302 Cr. P.C. It is true that Section 308 of IPC is a non-compoundable offence within the scheme of Section 320 Cr. P.C. but the Hon’ble Apex Court has permitted compounding of such offence in the decisions of Dimpey Gujral (supra) and Gian Singh (supra) holding that Section 320 Cr. P.C. shall not come in the way of the High Court in exercising it’s inherent jurisdiction under Section 482 Cr. P.C. 10. The compounding application is thus allowed. Injured Amit Kumar is permitted to compound the offence proved against the convict-appellant. As a consequence thereof, Judgment and Order dated 28.08.2014, passed by learned 2nd Additional Sessions Judge, Rishikesh, Dehradun, in Sessions Trial No. 96 of 2011, is hereby set aside in respect of the accused-appellant only, in terms of the compromise entered into between the parties, i.e. injured and the accused-appellant. The conviction and sentence recorded by the Trial Court against present appellant is set aside. Accused-appellant stands acquitted of the charge of Section 308 of IPC. Accused-appellant Bhola is on (interim) bail. His bail bonds are cancelled and sureties are discharged. He need not surrender. 11. The Criminal Appeal is thus disposed of in terms of compromise arrived at between the parties. Let a copy of this Judgment along with lower court record be sent to the court below for compliance.