Research › Search › Judgment

Madhya Pradesh High Court · body

2015 DIGILAW 1078 (MP)

Ashish v. State of M. P.

2015-10-07

SHEEL NAGU

body2015
ORDER : SHEEL NAGU, J. 1. In this petition filed under section 482 Cr.P.C. invoking inherent power of this Court, application bearing I.A. No. 10154/2013 is moved for compounding the offence punishable U/s. 392 IPC r/w Section 11/13 Madhya Pradesh Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam, 1981 ("for brevity Act of 1981") which is non-compoundable offence as per Section 320 Cr.P.C. The application seeking compounding of non-compounding offence has been filed on the ground that rival parties do not wish to pursue the present piece of prosecution at this initial stage of trial where only charge- sheet has been filed U/s 299 Cr.P.C. in the absence of accused petitioner. 2. Learned counsel for the petitioner placed reliance on the decision of the co-ordinate Bench of this Court rendered on 17.11.2015 in shape of M. Cr. C. No. 3632/2014 in the case of Banti @ Punti Yadav @ Rajesh V. State of M.P. and further relies upon the decisions of the Apex Court in the cases of Shiji v. Radhika reported in (2011) 10 SCC 705 , Nikhil Merchant v CBI reported in (2008) 9 SCC 677 and the recent decisions of Apex Court in the case of Gian Singh v State of Punjab reported in (2012) 10 SCC 303 and lastly on the case of Narinder Singh v state of Punjab reported in (2014) 6 SCC 466 . 3. Learned counsel for the petitioner submits that the factual background giving rise to this petition, is that petitioner who is one of the accused in Crime No. 31/2007 PS Gwalior, District Gwalior was an agent of the bank for recovering loan, which the complainant Ragvendra Sharma had allegedly borrowed from the bank for purchasing vehicle. 4. It is further contended that for the purpose of recovery of said loan the petitioner in due discharge of his duty as a loan recovery agent of the bank look possession of the vehicle. It is submitted that the present piece of prosecution launched by complainant is an act of retaliation and revenge. 5. The first decision of the Apex Court relied upon by the petitioner in case of Nikhil Merchant (supra) relates to the offence of cheating and forgery where the accused was a former Managing Director of the Company along with other co-accused who were employees of Andhra Bank. 5. The first decision of the Apex Court relied upon by the petitioner in case of Nikhil Merchant (supra) relates to the offence of cheating and forgery where the accused was a former Managing Director of the Company along with other co-accused who were employees of Andhra Bank. Civil disputes in shape of suit for recovery filed by the bank lay in the foundation of that case. The criminal prosecution in Nikhil's case was regarding offences of cheating and forgery. The Apex Court while exercising it's power under Article 142 of the Constitution of India quashed the criminal proceedings where the offences punishable u/s. 120-B, 420, 467, 468 and 471 of IPC r/w section 5 (2) and 5(1) (d) along with section 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1947 were alleged. The Criminal prosecution which was sought to be compounded was ultimately quashed by the Apex Court as it had civil overtures and since compromise was arrived at between the parties. 6. The other case of Shiji (supra) relates to the offence of cheating where compounding of non- compoundable offence u/S 394 was allowed as it was based on the factual background that along with offence punishable u/S. 394, offence punishable u/S. 354 IPC was also alleged which being compoundable in the State concerned had already been compounded by the parties before the Trial Court and only the offence u/S. 394 IPC was left to be considered by the Apex Court. 6.1 The Apex Court white allowing compounding of offence U/s. 394, found that the dispute between the rival parties basically arose out of some dispute of two plots situated adjacent to each other. The Apex Court further found that it was not a case of day light robbery for gain and thus the Apex Court was of the considered view that in this changed situation, continuance of prosecution will lead to persecution and long drawn ordeal of trial. 7. Learned counsel for the petitioner has also placed reliance on the decision of the Co -ordinate Bench of this Court in the case of Banti (supra) wherein relying on the decision of Shiji (supra) of the Apex Court, prosecution u/S. 394 rw Section 11, 13 of MPDVPK Act was quashed. 8. 7. Learned counsel for the petitioner has also placed reliance on the decision of the Co -ordinate Bench of this Court in the case of Banti (supra) wherein relying on the decision of Shiji (supra) of the Apex Court, prosecution u/S. 394 rw Section 11, 13 of MPDVPK Act was quashed. 8. In the recent decision in the case of Gian Singh (supra) the Apex Court answered the reference made to it on account of doubt expressed to the correctness of the decisions in the cases of B.S. Joshi v. State of Haryana reported in (2003) 1 SCC 675, Nikhil Merchant (supra) and Manoj Sharma v. state reported in (2008) 16 SCC 1 , laying down the law regarding compounding of non-compoundable offences while exercising powers u/S. 182 Cr.P.C. 9. The other case decided by the Apex Court is of Narinder Singh (supra) which is the most recent one on the point, lying down certain guidelines for exercising inherent powers u/S. 482 Cr.P.C. for compounding of a non-compoundable offence. 9.1 The case of Narinder Singh (supra) dealt with factual matrix of a prosecution u/s. 307 where sharp edged weapons were used causing four injuries which were initially found simple in nature but later on conduction of X-ray one of the injuries was detected to be a fracture leading to addition of Section 307 IPC. The prosecution in that case was at trial stage when the intention of compromise was expressed by the rival parties. 9.2 The Apex Court in the case of Narinder Singh (supra) laid down certain illustrative guidelines regulating exercise of inherent powers by the Court u/S. 482 Cr.P.C. for compounding of non-compoundable offence. The relevant paragraphs of said decision are reproduced below for convenience and ready reference:-- "29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings: 29.1 Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offence under Section 320 of the Code. No doubt under Section 482 of the Code the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between there selves. However, this power is to be exercise sparingly and with caution. 29.2 When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such case would be to secure: (i) ends of just ice, or (ii) to prevent abuse of the process of any court While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives 29.3. Such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offence like murder, rape dacoity, etc. Such offences are not pay ate in nature and have a serious impact on society Similarly, for the offence alleged to have been committed under special statute like the Prevention of Corrupt ion Act or the offence committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender. 29.4 On the other hand, those criminal cases having overwhelmingly and predominantly civil character particularly those arising out of commercial transactions or arising out of matrimonial relationships or family disputes should be quashed when the parties have resolved their entire disputes among themselves. 29.5 While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases. 29.6. Offence under Section 307 IPC would fall in the category of heinous and serious offences and therefore are to be generally treated as crime against the society and not against the individual alone However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital delegate parts of the body, nature of weapons used etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceeding whereas in the latter case it would be permissible for the High Court to accept the plea compounding offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between which may improve their future relationship. 29.7 While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge-sheet has not been filed Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exerting its powers favorably, but after prima facie assessment of the circumstances/material mentioned above. On the order hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC is committed or not similarly, in those case where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime........... (emphasis supplied) 10. It is noticeable in the case of the Narinder Singh (supra) that in the guidelines contained in para 29.3, the Apex Court held that the offences which fall within the purview of 'special statutes' should not be quashed u/S. 482 Cr.P.C. merely because the parties have come to terms and compromise is reached between the accused and victim. 11. The usage of the term 'special statue' obviously relates to statutes which have been promulgated by the legislature in regard to certain kind of offence which are though covered by the sweep of the India Penal Code but on account of changing social and economic set up have become more menacing thereby requiring specialized forums, procedure and punishments to be dealt with. 12. The Act of 1981 is one such special enactment which has been framed to achieve the following objectives "An Act to make provision for specifying certain offences in the dacoity and kidnapping affected areas of Madhya Pradesh and in respect of punishments therefore and speedy trial thereof in order to curb effectively the commission of such specified offences and to make provision for the attachment of properties acquired through the commission of specified offences and for matters connected therewith or incidental thereto. Whereas for curbing the menace of organised and un-organised gangs of dacoits affectively it is essential to break the chain of vested interests assisting, or associate with such gangs and to curb and control them effectively, And, whereas, it is essential to prove for more stringent punishments for certain specified offences in the areas affected by dacoity and kidnapping. And, whereas, it is necessary to provide for attachment and confiscation of huge properties which have been acquired through the commission of specified offences and are being held in the name of relatives, associates and confidants of the dacoits." 13. The district of Gwalior within which the instant offence has been committed is declared as a "dacoity and kidnapping affected area" by the notification dated 16.10.2001 u/S. 3 of the 1981 Act. 14. The same Act u/S. 2(f)(iii) inter alia categorizes the offence of robbery u/S. 392 as a "specified offence". The said special statute i.e. Act of 1981 under section 6 provides for constitution of special Courts to be headed by a Sessions or Additional Session Judge as defined under the Code of Criminal Procedure. 15. The offence u/s. 392 IPC which prescribes punishment for robbery and is triable by the Magistrate of First Class as per Schedule appended to the Code of Criminal Procedure, has become triable by Additional Session Judge or Sessions Judge for being a "specified offence" as defined in Section 2(f)(iii) of the Act of 1981. 16. The IPC since the very beginning provides for punishment for an offence of robbery u/S. 391 prescribing Maximum punishment of 10 years, while the Cr.P.C. classified the said offence as non-compoundable and triable by a magistrate of First Class. However the special statute of Act of 1981 though prescribes for the same maximum punishment for robbery but makes it more stringent by mandating of three (3) years of imprisonment u/S. 13 as minimum sentence. 17. In the instant case, the allegations contained in the FIR filed as A- 1 with this petition u/S. 482 Cr.P.C. indicate that in the afternoon at about 2.40 PM six unknown persons came on a motorcycle and stopped the Mini Truck of the petitioner bearing registration No. MP 30 G 0255 and took forcible possession of the said vehicle and drove it towards Shivpuri leaving behind the complainant. The report was lodged on the same day i.e. on 17.07.2007 which led to registration of offence u/S. 392 of IPC rw Section 11/13 of Act of 1981 bearing Crime No. 31 of 2007 in which challan has been filed in absence of the petitioner (accused) who has not been arrested and the trial is at initial stage and is not proceeding due to the absence of the petitioner. 18. From the above, it is evident that offence of robbery u/S. 392 prima facie appears to have been committed in broad day light on a highway. The offence assumes aggravated form when viewed from the angle that the same has been committed in a "dacoity and kidnapping affected area" a notified under the Act of 1981 which is a special statute. 19. In view of above, this Court is of the considered view that the exception laid down in the para 29.3 of the Narinder Singh (supra) excluding offence committed under the special statutes would cover the present offence of robbery committed in "dacoity and kidnapping affected area" of Gwalior under the special statute i.e. Act of 1981 20. The decision of the Co-ordinate Bench of this Court in the case of Banti (supra) relates to similar case where offence u/S. 394 IPC was lodged which is an aggravated form of robbery and where compounding of non-compoundable offence u/S. 394 IPC was allowed needs to be considered. pertinently, the said decision of the Co-ordinate Bench of this Court had though placed reliance upon the decision of the Apex Court in the case of Shiji (supra) but did not consider the subsequent decision of the Apex Court in the case of Narinder Singh (supra). 21. Undisputedly, the decision of Shiji (supra) was considered in the case of Narinder Singh (supra) however, the decision of Gian Singh (supra) was taken into account at length by the Apex Court while rendering the decision of Narinder Singh (supra). The decision in the case of Gian Singh (supra) was rendered by a three judge bench decision in which similar exceptions were laid down in para 61 which is reproduced below for convenience and ready reference:-- "61. The decision in the case of Gian Singh (supra) was rendered by a three judge bench decision in which similar exceptions were laid down in para 61 which is reproduced below for convenience and ready reference:-- "61. 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 district 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 FIR may be exercised where the offender and the 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 series 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 a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the 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 a different footing for the purposes of quashing, particularly the offence 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, the High Court may quash the criminal proceedings if in its view because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the 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 the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above questions is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding............" 21.1. The exceptions, laid down by the Gian Singh (supra) for compounding of non-compoundable offences inter alia relate to offences under special statute on the nature of the Act of 1981. 22. Since the coordinate Bench of this Court in the case of Banti (supra) has not taken into account the decision in the case of Gian Singh (supra) and Narinder Singh (supra) this Court is of the considered view with utmost humility at it's command that the decision in the case of Banti (supra) is per incuriam the decision of the Apex Court in the case of Gian Singh (supra) and Narinder Singh (supra). 23. Learned counsel for the petitioner further made a submission by placing reliance upon the guidelines contained in para 29.5 of the Narinder Singh (supra). 23.1 Undoubtedly, the Apex Court in the case of Narinder Singh (supra) while laying down the guidelines which can safely be termed as illustrative rather than exhaustive has also held that if the possibility of conviction is remote and bleak and where continuation of criminal case would lead to injustice the inherent powers of this Court u/S. 482 Cr.P.C. can very well be exercised to truncate the impugned prosecution for preventing perpetration of injustice. It is submitted that in the instant case, the parties do not wish to pursue the prosecution and, therefore even though the trial is held, it would not result into conviction, since acquittal in the changed circumstances is a fait accompli. 24. True, it is that in the instant case, parties have buries the hatchet by entering into compromise which is evident from the application filed for the compounding in shape of I.A. No. 10154/2013 which under consideration herein. 25. However, the fact remains that since the present offence relates to a special state the same gets excluded from the purview of the inherent powers of this Court u/S. 482 of Cr.P.C. to be exercised for compounding of non-compoundable offences. 26. The guidelines laid down in the case of Narinder Singh (supra) specially the one contained in para 29.3 exclude the offences committed under special statute from being compounded by invoking the inherent powers of this Court u/S. 482. Cr.P.C. 27. The aspect which deserves attention of this Court is that the present is a case of day light robbery where vehicle of the complainant was snatched away by force in an area which is "dacoity and kidnapping affected area" under the special statute. 28. A day light highway robbery of the kind committed in the present case sends ripples of shock disturbing the peace and tranquility of the area concerned and therefore does not remain in the domain of an offence against an individual but assumes menacing overtones affecting the entire society. 29. By it's very nature and modus operandi adopted for committing the offence, it is an offence against the society and therefore, the same cannot be compounded even though the parties have come to terms with each other. 30. In view of above, I.A. No. 10154/2013 for compounding of non-compoundable offence u/S. 392 IPC r/w 11/13 MPDVPK Act (special enactment) is considered and rejected. 31. Since this petition u/S. 482. Cr.P.C. is solely based on the factum of parties have entered into a settlement which has been declined by this order by rejection of I.A. No. 10154/2013, the present petition u/S. 482 Cr.P.C. also paves the way of extinction and thus stands dismissed. 32. Any findings recorded in this order shall not prejudice either the rights of the petitioner to defend himself during trial or that of the prosecution. No cost.