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2017 DIGILAW 1321 (ORI)

Abhimanyu Parida v. State of Orissa

2017-11-20

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. This is an application under section 482 of Cr.P.C. filed by the petitioners to quash the criminal proceeding in I.C.C. Case No. 41 of 1995 in the Court of learned S.D.J.M., Bhanjanagar giving rise to Criminal Appeal No.04 of 2000 pending in the Court of learned Addl. Sessions Judge, Bhanjanagar and to acquit the petitioners of the charge under section 498-A of the Indian Penal Code. 2. The opp.party no.2 Smt. Madhuri Nayak @ Parida is the wife of petitioner no.1 Abhimanyu Parida and other petitioners are her in-laws. She filed a complaint petition against the petitioners in the Court of learned S.D.J.M., Bhanjanagar which was registered as I.C.C. Case No. 41 of 1995, on the basis of which the petitioners faced trial under sections 498/34 of the Indian Penal Code. 3. The learned S.D.J.M., Bhanjanagar vide judgment and order dated 05.02.2000 found the petitioners guilty under sections 498-A/34 of the Indian Penal Code and sentenced each of them to undergo R.I. for six months and to pay a fine of Rs. 1,000/- (rupees one thousand), in default, to undergo S.I. for thirty days. The petitioners preferred an appeal in the Court of Session which is sub-judiced in the Court of learned Addl. Sessions Judge, Bhanjanagar in Criminal Appeal No. 04 of 2000. 4. A joint compromise petition was filed under section 320 of Cr.P.C. before the learned Appellate Court by the petitioners and the opposite party no.2 indicating therein that in view of the compromise between the parties, it is not desirable that the case should proceed any further and therefore, permission for compromise be granted and the judgment and order of conviction passed by the learned trial Court be set aside. 5. The learned Appellate Court vide order dated 22.06.2005 rejected the petition holding that such compromise petition does not come within the purview of section 320 of Cr.P.C. 6. Being aggrieved by the order passed by the learned Appellate Court in rejecting the compromise petition, the petitioners have invoked the inherent power of this Court for appropriate relief. 7. Mr. 5. The learned Appellate Court vide order dated 22.06.2005 rejected the petition holding that such compromise petition does not come within the purview of section 320 of Cr.P.C. 6. Being aggrieved by the order passed by the learned Appellate Court in rejecting the compromise petition, the petitioners have invoked the inherent power of this Court for appropriate relief. 7. Mr. L.N. Rayatsingh, learned counsel appearing for the petitioners contended that since the case arises out of matrimonial dispute and the parties have settled their dispute amicably and they filed a joint compromise petition before the learned Appellate Court, the Court should not have rejected such petition and posted the case for hearing of the Criminal Appeal. The learned counsel for the petitioners relied upon the decision of the Hon’ble Supreme Court in case of B.S. Joshi -Vrs.-State of Haryana reported in (2003) 25 Orissa Criminal Reports (SC) 99. 8. Mr. Prem Kumar Patnaik, learned Addl. Government Advocate on the other hand contended that there is no illegality in the order passed by the learned Appellate Court in rejecting the compromise petition, as the offence under section 498-A of the Indian Penal Code is not a compoundable one and subsection (9) of section 320 of Cr.P.C. clearly indicates that no offence shall be compounded except as provided under the said section and therefore, the inherent power under section 482 of Cr.P.C. cannot be invoked to bypass the mandatory provision under section 320 of Cr.P.C. 9. Admittedly, the offence under section 498-A of the Indian Penal Code is not a compoundable offence. In case of B.S. Joshi (supra), a prayer was made by filing an application under section 482 of Cr.P.C. before the High Court to quash the first information report which was registered under sections 498-A/323/406 of the Indian Penal Code at Central Faridabad police station at the instance of the wife on the ground that the matter was amicably settled between the parties. The said prayer was turned down on the ground that the offences are not compoundable and therefore, the inherent powers under section 482 of Cr.P.C. cannot be invoked to bypass the mandatory provision under section 320 of Cr.P.C. When the matter was challenged before the Hon’ble Supreme Court, after discussing the ambit of the inherent powers of the High Courts under section 482 of Cr.P.C. read with Articles 226 and 227 of the Constitution of India to quash the criminal proceedings, Hon’ble Court held as follows:- “14. There is no doubt that the object of introducing Chapter XX-A containing Section 498-A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498-A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper-technical view would be counterproductive and would act against interests of women and against the object for which this provision was added. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XX-A of Indian Penal Code. 15. In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code.” 10. That is not the object of Chapter XX-A of Indian Penal Code. 15. In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code.” 10. In case of Manohar Singh -Vrs.-State of Madhya Pradesh reported in (2014) 59 Orissa Criminal Reports (SC) 135, where the appellant was tried along with his father and mother for offences under section 498-A of the Indian Penal Code and section 4 of the Dowry Prohibition Act and the Magistrate acquitted the appellant and other two co-accused persons and on appeal, the Sessions Court set aside the order of acquittal and convicted the appellant and his parents under section 498-A of the Indian Penal Code and section 4 of the Dowry Prohibition Act and on a revision petition, the High Court set aside the conviction and sentence of the parents of appellant but the conviction of the appellant under both the offences was confirmed and his sentence was reduced to imprisonment for six months and fine of Rs.500/- on each count with a further direction that the substantive sentences were to run concurrently, the matter was challenged before the Hon’ble Supreme Court. While the matter was sub-judiced before the Hon’ble Supreme Court, there was amicable settlement between the parties and the wife also filed a petition that she is ready to settle the matter if the appellant pays her Rs.2,50,000/- (rupees two lacs fifty thousand only) and a demand draft of the aforesaid sum of Rs.2,50,000/- drawn in the name of the wife was handed over to her counsel, the question arose as to whether in such circumstances the offence under section 498-A of the Indian Penal Code and section 4 of the Dowry Prohibition Act can be compounded or not. The Hon’ble Supreme Court has held as follows:- “6. Section 498-A of the IPC is non-compoundable. Section 4 of the Dowry Prohibition Act is also non-compoundable. It is not necessary to state that non-compoundable offences cannot be compounded by a Court. While considering the request for compounding of offences, the Court has to strictly follow the mandate of Section 320 of the Code. Section 498-A of the IPC is non-compoundable. Section 4 of the Dowry Prohibition Act is also non-compoundable. It is not necessary to state that non-compoundable offences cannot be compounded by a Court. While considering the request for compounding of offences, the Court has to strictly follow the mandate of Section 320 of the Code. It is, therefore, not possible to permit compounding of offences under section 498-A of the IPC and section 4 of the Dowry Prohibition Act. However, if there is a genuine compromise between husband and wife, criminal complaints arising out of matrimonial discord can be quashed, even if the offences alleged therein are non-compoundable, because such offences are personal in nature and do not have repercussions on the society unlike heinous offences like murder, rape etc. (see Gain Singh -Vrs.-State of Punjab (2012) 10 SCC 303 ). If the High Court forms an opinion that it is necessary to quash the proceedings to prevent abuse of the process of any Court to secure ends of justice, the High Court can do so. The inherent power of the High Court under Section 482 of the Code is not inhibited by Section 320 of the Code. Needless to say that this Court can also follow such a course. 7. In Narinder Singh -Vrs.-State of Punjab JT 2014 (4) SC 573, this Court was dealing with a situation where the accused was charged for offence punishable under Section 307 of the IPC, which is a non-compoundable offence. The parties arrived at a compromise at the stage of recording of evidence. A petition was filed under Section 482 of the Code for quashing of the proceedings in view of the compromise. The High Court refused to quash the proceedings. This Court set aside the High Court’s order and quashed the proceedings in view of the compromise. While doing so, this Court laid down certain guidelines. In Guideline No. (VII), this Court considered a situation where a conviction is recorded by the Trial Court for offence punishable under section 307 of the IPC and the matter is at appellate stage. This Court observed that in such cases, a 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. This Court observed that in such cases, a 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. This Court observed that in such cases where charge is proved under Section 307 of the IPC and conviction is already recorded of a heinous crime, there was no question of sparing a convict found guilty of such a crime. The observation of this Court must be read obviously in the context of a non-compoundable offence under section 307 of the IPC. It is trite that a non-compoundable offence cannot be compounded at any stage (see Gyan Singh –Vrs.-State of Punjab (2012) 10 SCC 303 ). However, a compoundable offence can be compounded in view of a compromise, if the Court finds it proper to do so even after conviction if the appeal is pending.” 11. It is further held in the case of Manohar Singh (supra) that even though the appellant and the respondent no. 2-wife have arrived at a compromise, the order of conviction cannot be quashed on that ground because the offences involved are non-compoundable. However, in such a situation if the Court feels that the parties have a real desire to bury the hatchet in the interest of peace, it can reduce the sentence of the accused to the sentence already undergone. Accordingly, while maintaining the conviction of the appellant under section 498-A of the Indian Penal Code and section 4 of the Dowry Prohibition Act, the Hon’ble Supreme Court directed the sentence awarded to the appellant to be reduced to the period already undergone by him subject to the condition that the appellant pays a sum of Rs.2,50,000/- to the respondent no.2-wife as compensation. 12. The opp. party no.2 has also not entered appearance in the case even though the notice was sufficient. In view of the ratio laid down by the Hon’ble Supreme Court in the case of Manohar Singh (supra) when the petitioners have already been convicted by the learned trial Court under section 498-A/34 of the Indian Penal Code and sentenced to substantive imprisonment as well as fine with default sentence and their appeal is sub-judiced before the learned Addl. In view of the ratio laid down by the Hon’ble Supreme Court in the case of Manohar Singh (supra) when the petitioners have already been convicted by the learned trial Court under section 498-A/34 of the Indian Penal Code and sentenced to substantive imprisonment as well as fine with default sentence and their appeal is sub-judiced before the learned Addl. Sessions Judge, Bhanjanagar and the offence is not compoundable, I am not inclined to invoke my inherent power under section 482 of Cr.P.C. to quash the order of conviction passed by the learned S.D.J.M., Bhanjanagar under sections 498/34 of the Indian Penal Code on the ground of compromise between the parties and to acquit the petitioners of such charge. 13. It is made clear that I have not expressed any opinion on the merits of the appeal. The learned Appellate Court shall decide the appeal on merit to see as to whether the order of conviction passed by the learned S.D.J.M., Bhanjanagar under sections 498-A/34 of the Indian Penal Code against the petitioners is sustainable in the eye of law or not. In case, the learned Appellate Court comes to such conclusion regarding the sustainability of the order of conviction, the dictum laid down by the Hon’ble Supreme Court in case of Manohar Singh (supra) shall be taken into account while deciding the sentence aspect in accordance with law. The appeal being of the year 2000, the learned Appellate Court shall do well to dispose of the same expeditiously. A copy of this judgment be sent to the learned Appellate Court for compliance. 14. With the aforesaid observation the CRLMC application is disposed of.