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2017 DIGILAW 237 (JK)

Shah Faisal v. State of Jammu and Kashmir

2017-05-09

ALOK ARADHE

body2017
JUDGMENT : 1. With the consent of learned counsel for the parties, the matter is heard finally. 2. In this petition, the petitioners, inter alia, seek quashment of the judgment dated 25.07.2012 passed by Judicial Magistrate 1st Class, Banihal by which the petitioners have been convicted for offences under Section 326/34 RPC. 3. When the matter was taken up today, learned counsel for the petitioners as well as Respondent No. 2 jointly submitted that the parties have entered into an amicable settlement and dispute between them has been resolved. It is also pointed by the learned counsel for the petitioners that on the basis of the aforesaid settlement, a Bench of this Court by an order dated 10.03.2016 passed in 561-A No. 178/2011 has already quashed the criminal proceedings pending against the respondent No. 2 for the offences under Section 307, 382, 341, 147 & 148 RPC. It is also submitted that since offence under Section 326 RPC is non-compoundable, therefore, the petitioners have no remedy to approach the Appellate Court under Section 345(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. of the Cr.P.C. 4. On the other hand, learned Deputy Advocate General submitted that since appeal is pending, therefore, in view of Section 345(5) Cr. P.C., the petitioners have a remedy to approach the appellate Court for compounding of the offence in question. 5. On the other hand, learned counsel for the Respondent No. 2 supported the stand taken by the petitioners. 6. I have considered the submission made by learned counsel for the parties. 7. A 3-Judge Bench of Honble the Supreme Court in the case of Gian Singh v. State of Punjab & Anr., 2012(10) SCC 303 , in paragraph No. 53 held as under:- "53. Quashing of offence or criminal proceedings on the ground of settlement between an offence and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly, the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. They are different and not interchangeable. Strictly, the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment." 8. In view of the principle laid down by the Supreme Court, it is evident that the petitioners do not have the remedy to approach the appellate Court in terms of Section 345(5) Cr.P.C. as contended by the learned Deputy Advocate General as the offence under Section 326 RPC 326. Voluntarily causing grievous hurt by dangerous weapons or means :- Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. is non-compoundable. Therefore, the aforesaid contention raised by the learned Deputy Advocate General sans substance and is hereby rejected. 9. In views of the compromise arrived at between the petitioners and Respondent No. 2 and in view of the observation made in paragraph No. 53 of the judgment of Hon'ble Supreme Court in the case of Gian Chand (supra), the judgment dated 25.07.2012 passed by Judicial Magistrate 1st Class (Munsiff), Banihal is hereby quashed, in the result this petition is allowed.