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2014 DIGILAW 588 (UTT)

KUNWAR BAHADUR v. STATE

2014-12-17

U.C.DHYANI

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JUDGMENT U.C. Dhyani, J.(Oral) Vide judgment and order dated 13.03.2003, rendered by learned Sessions Judge, Nainital, accused-appellant was convicted under Sections 307, 452 IPC. He was directed to undergo rigorous imprisonment for four years alongwith a fine of Rs.10,000/- for the offence punishable under Section 307 IPC. He was also directed to undergo rigorous imprisonment for two years alongwith a fine of Rs.1,000/- in connection with offence punishable under Section 452 IPC. Aggrieved against his conviction and sentence, convict-appellant has preferred present criminal appeal. 2. A compounding application, being CRMA no. 1991 of 2014, has been filed by the parties to indicate that they have buried their differences and have settled their dispute amicably. Said application is supported by the affidavits of Deepak Kumar (son of the convict, who is presently under detention) and Bhajan Singh (complainant/victim). 3. Complainant/victim Bhajan Singh is present in person before the Court, duly identified by his counsel Mr. Akhil Kumar Shah, who stated that he is no more interested in prosecuting the appellant, in as much as he has pardoned the appellant, who is suffering from paralysis and is currently under detention for about eight months. Deepak Kumar, son of the appellant, is also present in person before the Court, duly identified by Mr. Rajesh Kumar Joshi, Advocate. 4. Offences punishable under Sections 307, 452 of IPC are non-compoundable offence within the scheme of Section 320 of Cr.P.C. 5. The only question which is left for consideration of this Court is whether the complainant/victim should be permitted to compound the offences proved against the accused-appellant or not? 6. Hon’ble Supreme Court in the cases of Dimpey Gujral vs Union Territory through Administrator U.T. Chandigarh and others, [2013 (123) AIC 119 (S.C.) and Narendra Singh and others vs State of Punjab and another, (2014) 6 SCC 466 ,* has permitted compounding of such type of offences, which are otherwise non-compoundable, within the scheme of Section 320 of Cr.P.C. 7. Hon’ble Supreme Court in the cases of Dimpey Gujral vs Union Territory through Administrator U.T. Chandigarh and others, [2013 (123) AIC 119 (S.C.) and Narendra Singh and others vs State of Punjab and another, (2014) 6 SCC 466 ,* has permitted compounding of such type of offences, which are otherwise non-compoundable, within the scheme of Section 320 of Cr.P.C. 7. It will also be useful to reproduce the law laid down by Hon’ble Apex Court in Gian Singh vs. State of Punjab and another (2013) 1 SCC (Cri) 160, wherein it was observed, in the context of such cases, as under: “The position that emerges from the above discussion can be summarized 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 of 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 statues 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. 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. 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 proceedings 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.” 8. It will also be worthwhile to reproduce the provisions contained in sub-section (5) of Section 320 of Cr.P.C. here-in-below: “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. The aforesaid sub-section is relevant in the context of the present case, in the sense that the said sub-section stipulates that when the accused has been convicted and an appeal is pending, as in the instant case, no composition for the offence shall be allowed without the leave of the Court before which the appeal is to be heard. 10. The criminal appeal against the conviction and sentence is pending before this Court. 10. The criminal appeal against the conviction and sentence is pending before this Court. Section 307 IPC and Section 452 IPC are, although, non-compoundable offences within the scheme of Section 320 Cr.P.C., but the High Court, in exercise of its inherent jurisdiction, can permit the victim/injured to compound the said offences on the strength of a catena of decisions rendered by Hon’ble Apex Court. Dimpey Gujral (supra), Narendra Singh (supra) and Gian Singh (supra) are only a few illustrations on the point. 11. This Court is, therefore, of the opinion that the informant/victim should be permitted to compound the offence proved against the appellant in the interest of justice. 12. Compounding application no. 1991 of 2014 is allowed. As a consequence of such compounding, the conviction and sentence recorded against the appellant are hereby set aside. 13. Let the lower court record be sent back to the court concerned for compliance. An intimation to this effect be given to the Superintendent of District Jail, Nainital, where the appellant is currently serving the sentence. 14. The criminal appeal thus stands disposed of on the basis of compromise entered into between the complainant/victim and the appellant.