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2020 DIGILAW 174 (KAR)

Mahesh M. R. And Others v. Sapna. S And Others

2020-01-21

B.A.PATIL

body2020
JUDGMENT 1. Petitioner No.1/accused No.1-Sri Mahesh M.R., Petitioner No.2/accused No.2-Maya Ravath, Petitioner No.3/accused No.3-Gowramma, Petitioner No.4/accused No.4-Rudrappa, Petitioner No.5/accused No.5-Mamatha, Petitioner No.6/accused No.6- Rajakumara are present along with their counsel. Respondent No.1/complainant-Smt. Sapna S. is present. Learned Additional SPP for respondent No.2- State is also present before this Court. 2. Today, they have filed a joint memo contending that because of the differences and incompatibility of the temperaments between petitioner No.1/accused No.1 and respondent No.1/complainant, the marriage between the parties has broken down and thereafter, respondent No.1 left the matrimonial home in the month of September-2016 and thereafter, they started living separately. At the intervention of the elders and well-wishers of both the parties, several rounds of discussions took place to sort out differences and it has been resolved that their disputes be finally settled by filing the joint memo and in this regard, Crl.Misc.No.4/2017 has been withdrawn on 11.09.2018 in terms of the compromise. Respondent No.1 has given consent to the Divorce Petition filed by the petitioner/accused No.1 in M.C.No.2866/2017 and he has also agreed to pay an amount of Rs.23,00,000/- (Rupees Twenty Three Lakhs Only) as a permanent alimony to respondent No.1 and her daughter. After payment of the said amount, the divorce petition was accepted. 3. Respondent No.1 is present before this Court and submits that already an amount of Rs.23,00,000/- has been paid as agreed by the petitioner/accused No.1 and also submits that she has no objection to allow the petition and to quash the proceedings as against the accused persons. 4. The said joint memo has been signed by the petitioners/accused Nos.1 to 6 and respondent No.1/complainant and the same has been endorsed by their counsel. 5. 4. The said joint memo has been signed by the petitioners/accused Nos.1 to 6 and respondent No.1/complainant and the same has been endorsed by their counsel. 5. At this juncture, it is worth to mention here itself a decision of the Honble Apex Court in the case of J.Ramesh Kamath and Others v. Mohana Kurupt and Others, reported in (2016) 12 SCC 179 , wherein the Honble Apex Court has laid down certain principles as to under what circumstances the Court can quash the proceedings or compound the offences even in respect of a non-compoundable offences, wherein it has been held as under:- 'Held, power vested in High Court under S.482 is not limited to quashing proceedings within ambit and scope of S.320 of Cr.P.C., - In Gian Singh, (2012) 10 SCC 303 , it was clearly expounded that quashing of criminal proceedings under S.482 of Cr.P.C., could also be based on settlements between private parties, and could also be on a compromise between the offender and victim Only that, the above power did not extend to crimes against the society Further, jurisdiction vested in High Court under S.482 Cr.P.C., for quashing criminal proceedings was held to be exercisable in criminal cases having an overwhelming and predominatingly civil flavour, particular offences arising from commercial, financial, mercantile, civil, partnership, or such like transactions, or even offences arising out of matrimony relating to dowry, etc., or family disputes where wrong is basically private or personal. In all such cases, parties should have resolved their entire dispute by themselves, mutually.' 6. The Honble Apex Court has reiterated the principles of law laid down in the case of Gian Singh v. State of Punjab and another reported in (2012) 10 SCC 303 , wherein it has been observed that the Court can exercise the power under Section 482 of Cr.P.C. depending upon the facts and circumstances of each case and compound the offence. In the case of Narinder Singh and others v. State of Punjab and another reported in (2014) 6 SCC 466 , it has been observed as under: '8. We find that there are cases where the power of the High Court under Section 482 of the Code to quash the proceedings in those offences which are uncompoundable has been recognized. In the case of Narinder Singh and others v. State of Punjab and another reported in (2014) 6 SCC 466 , it has been observed as under: '8. We find that there are cases where the power of the High Court under Section 482 of the Code to quash the proceedings in those offences which are uncompoundable has been recognized. The only difference is that under Section 320(1) of the Code, no permission is required from the Court in those cases which are compoundable though the Court has discretionary power to refuse to compound the offence. However, compounding under Section 320(1) of the Code is permissible only in minor offences or in non-serious offences. Likewise, when the parties reach settlement in respect of offences enumerated in Section 320(2) of the Code, compounding is permissible but it requires the approval of the Court. Insofar as serious offences are concerned, quashing of criminal proceedings upon compromise is within the discretionary powers of the High Court. In such cases, the power is exercised under Section 482 of the Code and proceedings are quashed. Contours of these powers were described by this Court in B.S.Joshi v. State of Haryana which has been followed and further explained/elaborated in so many cases thereafter, which are taken note of in the discussion that follows hereinafter. 9. At the same time, one has to keep in mind the subtle distinction between the power of compounding of offences given to the Court under Section 320 of the Code and quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction conferred upon it under Section 482 of the Code. Once it is found that compounding is permissible only if a particular offence is covered by the provisions of Section 320 of the Code and the Court in such cases is guided solitarily and squarely by the compromise between the parties, insofar as power of quashing under Section 482of the Code is concerned, it 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. Such a distinction is lucidly explained by a three-Judge Bench of this Court in Gian Singh v. State of Punjab. Such a distinction is lucidly explained by a three-Judge Bench of this Court in Gian Singh v. State of Punjab. Lodha, J. speaking for the Court, explained the difference between the two provisions in the following manner: (SCC pp.340-41, paras 57 & 59). '57. Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, 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. 59. B.S.Joshi, Nikhil Merchant, Manoj Sharma and Shiji do illustrate the principle that the High Court may quash criminal proceedings or FIR or complaint in exercise of its inherent power under Section 482 of the Code and Section 320 does not limit or affect the powers of the High Court under Section 482. Can it be said that by quashing criminal proceedings in B.S.Joshi, Nikhil Merchant, Manoj Sharma and Shiji this Court has compounded the non-compoundable offences indirectly? We do not think so. There does exist the distinction between compounding of an offence under Section 320 and quashing of a criminal case by the High Court in exercise of inherent power under Section 482. The two powers are distinct and different although the ultimate consequence may be the same viz. acquittal of the accused or dismissal of indictment.' 10. Apart from narrating the interplay of Section 320 and Section 482 of the Code in the manner aforesaid, the Court in Gian Singh case also described the extent of power under Section 482 of the Code in quashing the criminal proceedings in those cases where the parties had settled the matter although the offences are not compoundable. Apart from narrating the interplay of Section 320 and Section 482 of the Code in the manner aforesaid, the Court in Gian Singh case also described the extent of power under Section 482 of the Code in quashing the criminal proceedings in those cases where the parties had settled the matter although the offences are not compoundable. In the first instance it was emphasized that the power under Section 482 of the Code is not to be resorted to, if there is specific provision in the Code for redressal of the grievance of an aggrieved party. It should be exercised very sparingly and should not be exercised as against the express bar of law engrafted in any other provision of the Code. The Court also highlighted that in different situations, the inherent power may be exercised in different ways to achieve its ultimate objective. Formation of opinion by the High Court before it exercises inherent power under Section 482 on either of the twin objectives, (i) to prevent abuse of the process of any court, or (ii) to secure the ends of justice, is a sine qua non. 11. As to under what circumstances the criminal proceedings in a non- compoundable case be quashed when there is a settlement between the parties, the Court provided the following guidelines: (Gian Singh case, SCC pp.340-41. para 58) '58. Where the High Court quashes a criminal proceeding having regard to the facts that the dispute between the offender and the victim has been settled although the offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrongdoing that seriously endangers and threatens the well-being of the society and it is not safe to leave the crime-doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without the permission of the court. In respect of serious offences like murder, rape, dacoity, etc. In respect of serious offences like murder, rape, dacoity, etc. or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between the offender and the victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to the victim and the offender and the victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or FIR if it is satisfied that on the face of such settlement, there is hardly any likelihood of the offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard-and-fast category can be prescribed.' 12. Thereafter, the Court summed up the legal position in the following words: (Gian Singh case, SCC pp.342-43, para 61) '61. 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 a 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 plentitude with no statutory limitation but it has to be exercised in accord with the guidelines 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. 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 victims 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 predominatingly civil flavour stand on a 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, 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 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 question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.' The Court in Gian Singh case was categorical that in respect of serious offences or other offences of mental depravity or offence of merely dacoity under special statute, like the Prevention of Corruption Act or the offences committed by Public Servant while working in that capacity. The mere settlement between the parties would not be a ground to quash the proceedings by the High Court and inasmuch as settlement of such heinous crime cannot have imprimatur of the Court.' 7. On going through the contents of the complaint and other materials, the allegations made against the petitioners/accused Nos.1 to 6 under Sections 498A, 417, 323, 307, 504, 506 read with Section 34 of IPC. Though the alleged offences are non-compoundable, but as could be seen from the records, the parties have compromised and settled the matter amicably. Even, respondent No.1 who is present before this Court submits that she has not suffered with any injuries and only on the basis of galata and abused with filthy language, the said complaint has been registered. 8. By keeping in view of the decisions endorsed above and as the parties have already settled the matter amicably, then under such circumstances, by exercising the power as contemplated under Section 482 of Cr.P.C. if the compromise is accepted and the proceedings initiated are quashed then, it is going to meet the ends of justice. Even as could be seen from the records, already the matter has been amicably settled between the parties and they have compromised, if again the parties are directed to proceed with the trial, then it is going to waste the Court time and it will be futile exercise. 9. Even as could be seen from the records, already the matter has been amicably settled between the parties and they have compromised, if again the parties are directed to proceed with the trial, then it is going to waste the Court time and it will be futile exercise. 9. With the above observations, the joint memo placed before this Court is taken on record and the present petition is allowed. In view of the compounding of the offences by the parties, proceedings in S.C.No.13/2018 pending on the file of VI Additional District and Sessions Judge, Tumakuru for the offences punishable under Sections 498A, 417, 323, 307, 504, 506 read with Section 34 of IPC is hereby quashed. In terms of the joint memo, the petition is disposed of.