Research › Search › Judgment

Bombay High Court · body

2014 DIGILAW 88 (BOM)

Ravi s/o Changdeo Adhav v. State of Maharashtra

2014-01-17

S.S.SHINDE, V.M.DESHPANDE

body2014
JUDGMENT Per Court: (S.S. Shinde, J.) Rule. Rule made returnable forthwith. Heard with the consent of the learned counsel appearing for both the parties. 2. This Criminal Application is filed with prayer for quashing the proceeding in Regular Trial Criminal Case No.162 Of 2010 pending before the learned Judicial Magistrate, First Class, Kopargaon, Dist. Ahmednagar. 3. Brief facts leading to file this application, as disclosed in the application, are as under:- (i) On the basis of report lodged by Respondent No.2 - Uttam s/o Kamlakar Supekar, CR No. I 44/10 came to be registered with Kopargaon Police Station against the applicants for the offences punishable U/Section.s. 324, 323, 504, 506 read with 34 of “The Indian Penal Code, 1860”. (In short, the IPC.) After completion of investigation, charge sheet is filed in the court and case is registered as RTC No.162 Of 2010. (ii) Respondent No.2 carries the business of selling and purchasing the buffalo. Respondent No.2 and the applicants are inhabitants of Mohiniraj Nagar, Kopargaon. Applicant No.2 had purchased a buffalo of respondent No.2 for consideration of Rs.40,000/-; out of which, he had paid an amount of Rs.10,000/- and promised to pay remaining consideration amount within a month however, did not pay despite repeated demands. On 28th January, 2010 at about 10.00 a.m. respondent No.2 demanded the remaining amount however that time, applicant No.2 started uttering abusive words. All the applicants beat respondent No.2 by stick on his right hand, thigh and head, and threatened to kill him, if repeats his demand for the remaining amount. (iii) On 20th July, 2013 applicants and respondent No.2 (Ori. Complainant) filed an application Exh.No.39 and sought permission to compromise the matter. The learned JMFC, Kopargaon was pleased to pass the order to the effect of compounding the offences punishable U/Sections. 323, 504, 506 read with 34 of the IPC however, declined to compound the offence punishable U/Section 324 read with 34 of the Code. (iv) Being aggrieved and dis-satisfied by the order passed below application Exh.No.39 filed in RTC No.162/10 passed by the learned Judicial Magistrate, F.C., Kopargaon, the applicants have filed present application U/Section 482 of the Code of Criminal Procedure, 1973 and prayed to quash the proceeding of RTC No.162/2010, in view of the settlement and compromise of the parties. 4. The learned counsel appearing for the applicants submits that, alleged incident had taken place before 3 years. 4. The learned counsel appearing for the applicants submits that, alleged incident had taken place before 3 years. The applicants and Resp. No.2 are residing adjacent to each others in the same vicinity. Now, with the passage of time, the relations between the applicants and Resp.No.2 have become friendly and cordial. Some renowned persons of the society have acted as Mediator and both the parties arrived at amicable settlement. He further submits that, accordingly, the applicants and respondent No.2 have filed joint application Exh.No.39 seeking permission to compromise the matter however, the learned Magistrate partly allowed the application by permitting the parties to compound the offences punishable U/Sections 323, 504, 506 read with 34 of the IPC and directed that case be proceeded against the original accused for the offence punishable U/Section 324 read with 34 of the IPC. The learned counsel for the applicants further submits that, the applicants have paid entire due amount to respondent No.2. He submits that, dispute involved is purely a personal between the two contesting parties and that it arose out of business dealing and offences levelled against the applicants are private in nature and have no serious impact on the society. Lastly, he prayed that, considering the allegations made out in the complaint and in view of the joint application filed by the applicants and respondent No.2, proceeding in Regular Trial Criminal Case No.162 Of 2010 pending before the learned Judicial Magistrate, First Class, Kopargaon, Dist. Ahmednagar be quashed. 5. In pursuance to the notices issued in this Application, original complainant (Resp.No.2) has filed his affidavit sworn on 13th December, 13 and joined the prayer of the applicants to allow this Criminal Application. 6. We have given careful consideration to the submissions advanced by the learned counsel appearing for the applicants, learned counsel appearing for Resp. No.2 and learned A.P.P. for the State of Maha. / Resp.1. We have carefully perused the copy of complaint and Charge-Sheet placed on record and also copy of order passed by the learned Judicial Magistrate, First Class, Kopargaon, Dist. Ahmednagar below application Exh.No.39 filed in RTC No.162 Of 2010. No.2 and learned A.P.P. for the State of Maha. / Resp.1. We have carefully perused the copy of complaint and Charge-Sheet placed on record and also copy of order passed by the learned Judicial Magistrate, First Class, Kopargaon, Dist. Ahmednagar below application Exh.No.39 filed in RTC No.162 Of 2010. Upon careful perusal of the statement of the original complainant, it appears that, he had sold buffalo to applicant No.2 / accused for consideration of Rs.40,000/-; out of which, applicant No.2 had paid an amount of Rs.10,000/- and promised to pay remaining consideration amount within a month however, did not pay despite repeated demands. On 28th January, 2010 when respondent No.2 requested for the remaining amount, according to the complainant, applicant No.2 abused him in filthy language and all the applicants beat him by stick. Further allegations are that, the applicants gave fist blows to the complainant. According to the complainant the applicants committed criminal intimidation by threatening him by uttering sentence that, 'in case he further repeats his demand for balance amount, they will kill him'. It further alleged that, the applicants intentionally insulted the complainant. 7. It further appears that, in pursuance to the investigation, charge sheet came to be filed against the applicants. The case is registered as RTC No.162/2010, which is pending in the Court of the Judicial Magistrate, F.C., Kopargaon. In the said case, the applicants herein and the original complainant (Resp.No.2) filed an application for compounding the offences, since they arrived at amicable settlement. The learned Judicial Magistrate, F.C., Kopargaon partly allowed the application and since the offence punishable U/Section 324 of the IPC is non compoundable, directed that case shall proceed against the applicants/accused for the offence punishable U/Section/s 324 read with 34 of the IPC. However, the learned Magistrate granted permission to compound the offences punishable U/Sections. 323, 504, 506 read with 34 of the IPC. 8. The question which now remains to be answered is whether since one of the offence alleged in the FIR is non compoundable, the FIR / Charge Sheet and further pending proceeding i.e. RTC No.162/2010, can be quashed. 9. However, the learned Magistrate granted permission to compound the offences punishable U/Sections. 323, 504, 506 read with 34 of the IPC. 8. The question which now remains to be answered is whether since one of the offence alleged in the FIR is non compoundable, the FIR / Charge Sheet and further pending proceeding i.e. RTC No.162/2010, can be quashed. 9. The Hon'ble Apex Court in case of Gian Singh V/s. State of Punjab & Anr., (2012 AIR (SCW) 5333 = 2012 DGLS (Soft.) 457) held that, 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 U/Section 320 of the Cri.P.C.. 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. Paragraph No. 57 from the said Judgment reads thus:- 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 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. 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 flavor 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 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. 10. The original complainant has filed his affidavit before this Court. Paragraph Nos. 1 to 4 of said affidavit reads thus:- 1. That Resp.No.1 has registered an offense U/s. 323,324,504 and 506 R/w Sec.34 if the Indian Penal Code against the Applicant who are original accused on my complaint and proceeding RTC no. 162/2010 came to be registered against the accused Applicants. 2. Paragraph Nos. 1 to 4 of said affidavit reads thus:- 1. That Resp.No.1 has registered an offense U/s. 323,324,504 and 506 R/w Sec.34 if the Indian Penal Code against the Applicant who are original accused on my complaint and proceeding RTC no. 162/2010 came to be registered against the accused Applicants. 2. That, the alleged incident took place way back in 2010 and thereafter with the passage of time and in pursuance to the mediation of renowned person of our society and as myself and Accused Applicant reside in the same area of Mohinirajnagar and in order to maintain friendly and cordial relation I do not want to prosecute against the Accused and therefore I on solemn oath affirm that I do not want to prosecute against the Accused and do not wish that any criminal case be prosecuted against the Applicant. 3. I also say and submit that the Accused has paid me Rs.30,000/- which was due with them on account of purchase of buffalo from me. 4. I say and submit that, in order to maintain harmony between both my family and family of the Applicants and also to maintain cordial and friendly relationship with each other as we both reside in same locality I want to do not want to and I do not wish to prosecute against the accused. 11. It is true that, the applicants / accused are also charged with offence punishable U/Section/s 324 read with 34 of the IPC, which is non compoundable offence. However, during the course of hearing, the learned A.P.P. for the State informed to this Court that injuries sustained by the complainant are non-grievous. Relying upon the authoritative pronouncement in case of Gian Singh, cited supra, the Hon'ble Apex Court in case of Dimpey Gujral & Ors. Vs. Union Territory, Thr. Administrator, U.T. Chandigarh & Ors. (2013 CRI.L.J., 520) while considering the First Information Report for the offence punishable U/Section/s 147, 148, 149, 323, 307, 452, 506 of the IPC proceeded to held that, offences involved are neither heinous nor against society. It is observed that, once parties entering into compromise, continuance of proceedings would in circumstances be abuse of process of court thus, held that, irrespective that one of the offences was non compoundable, FIR and consequential proceeding liable to be quashed. It is observed that, once parties entering into compromise, continuance of proceedings would in circumstances be abuse of process of court thus, held that, irrespective that one of the offences was non compoundable, FIR and consequential proceeding liable to be quashed. The court further observed that, both the parties agree and assure that henceforth, they would maintain healthy relationship with each other while garnering no ill will or malice against each other. 12. Therefore, in the light of observation made by the Hon'ble Apex Court in paragraph No.57 in case of Gian Singh and also in case of Dimpey, cited supra, we are of the considered opinion that, offences involved in this case also are of personal nature and are not offences against the society. The entire complaint revolves around selling the buffalo by the complainant to applicant No.2 and non payment of part consideration amount by applicant No.2. 13. In that view of the matter, we feel that, this is a case, where continuance of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the parties because the alleged offences are not heinous offences showing extreme depravity nor are they against the society. They are offences of a personal nature and burying them would bring about peace and amity between the two sides, as it is evident from the contents of joint application which was filed before the learned Judicial Magistrate, F.C., Kopargaon by the parties and also affidavit filed before this Court by the original complainant. 14. In that view of the matter, FIR No. I 44/10 registered with Kopargaon Police Station against the applicants (Ori.accused) and other consequential proceedings arising therefrom including the further proceedings in RTC No.162 Of 2010 pending in the Court of the Judicial Magistrate, First Class, Kopargaon, Dist. Ahmednagar are hereby quashed, except the order passed by the learned JMFC, Kopargaon thereby permitting the parties to compound the offences punishable U/Section/s 323, 504, 506 read with 34 of the IPC. We confirmed that part of the order passed by the learned Judicial Magistrate, (F.C.), Kopargaon. 15. Accordingly, Criminal Application is allowed in terms of prayer clause (b). Rule made absolute in above terms. Criminal Application stands disposed of.