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2020 DIGILAW 384 (UTT)

Tenna v. State Of Uttaranchal

2020-10-07

N.S.DHANIK

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JUDGMENT N.S. Dhanik, J. - By impugned judgment and order dated 26.5.2007 of the trial court, the appellants have been convicted for the offence under Section 323/34 IPC and sentenced to undergo six months R.I.; each one of them has also been convicted for the offence under Section 308/34 IPC and sentenced to undergo three years and six months R.I. and to pay a fine of Rs. 1000/-. 2. Compounding application (being CRMA No. 3501 of 2020) has been filed by the parties to indicate that they have buried their differences and have settled their disputes amicably. The compounding application is duly signed by convicts-appellant, injured as well as the complainant. Appellants Tenna, Dharmu and Parveen Kumar have also filed an affidavit indicating the same. So is the injured Jitender Pal Singh and the informant Sardar Sarabhjeet Singh, who have not only filed the affidavits, but are also present before the Court, duly identified by their respective counsel. The injured stated that he is not interested in prosecuting the appellants, inasmuch as, the dispute between them has been resolved amicably. Injured prayed for permitting him to compound the offences alleged and proved against present appellants. He also prayed that the appellants be exonerated of the charges levelled and proved against them. 3. Whereas the offences punishable under Sections 323 IPC is compoundable within the scheme of Section 320 of Cr.P.C. the offence under Section 308 IPC is not. The question is whether the injured should be permitted to compound such offence against the convicts/appellants or not? 4. Learned counsel for the parties drew the attention of this Court towards the judgment rendered by Hon'ble Apex Court on 6th December, 2012, in Transfer Petition (Criminal) No. 115 of 2012 Dimpey Gujral vs. Union Territory through Administrator U.T. Chandigarh and others, (2013) 123 AllIndCas 119 (S.C.)] in which the Hon'ble Apex Court, relying upon Gian Singh v. State of Punjab and another, (2013) 1 SCC(Cri) 160 , permitted the injured to compound the offence punishable under Section 307 IPC. 5. 5. Learned counsel for the parties drew the attention of this Court towards the ruling of Gian Singh v. State of Punjab and another, (2013) 1 SCC(Cri) 160 , in which Hon'ble Supreme Court observed as below: "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. 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 predominatingly civil flavour 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. 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 5 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." 6. Learned Counsel for the parties also relied upon a judgment dated 1.4.2016 of a coordinate Bench of this Court, passed in Criminal Appeal No. 233 of 2015 and another connected appeal, wherein reliance on the aforementioned judgments, the compounding application was allowed and the conviction of the appellants, inter alia, under Section 308 IPC was set aside and appellants were acquitted of the charges of offences leveled and proved against them. In the said judgment, a Bench of this Court observed that "taking a leaf out of the book of Hon'ble Apex Court in Dimpey Gujral vs. Union Territory through Administrator U.T. Chandigarh and others, (2013) 123 AllIndCas 119 (S.C.)], and Gian Singh v. State of Punjab and another, (2013) 1 SCC(Cri) 160 , this Court is of the view that the informant/injured Smt. Kaushalya should be permitted to compound the offences punishable under Section 308, 323/34, 325 and 506 IPC against the accused-appellants in the interest of justice. Otherwise also, learned counsel for the informant/injured conceded that the criminal appeals deserve to be allowed on merits also. A reference may also be had to the decision of Narendra Singh and others vs. State of Punjab and another, (2014) 6 SCC 466 in this regard. Otherwise also, learned counsel for the informant/injured conceded that the criminal appeals deserve to be allowed on merits also. A reference may also be had to the decision of Narendra Singh and others vs. State of Punjab and another, (2014) 6 SCC 466 in this regard. It will also be useful to reproduce herein Sub-Section (5) of Section 320 Cr.P.C. as follows: "320 (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." Since the Criminal Appeals are pending before this Court against the conviction of the accused-appellants, therefore, injured is seeking leave of this Court to permit her to compound the offences, for which the accused-appellants have been convicted. Sub-Section (5) of Section 320 Cr.P.C. is meant for those offences, which are compoundable offences within the Scheme of Section 320 Cr.P.C. It is true that Section 308 of IPC is a noncompoundable offence within the scheme of Section 320 Cr.P.C., but the Hon'ble Apex Court has permitted compounding of such offence in the decisions of Dimpey Gujral (supra) and Gian Singh (supra) holding that Section 320 Cr.P.C. shall not come in the way of the High Court in exercising it's inherent jurisdiction under Section 482 Cr.P.C. The compounding applications are thus allowed. Injured Smt. Kaushalya is permitted to compound the offences proved against the convict-appellants. As a consequence thereof, Judgment and Order dated 16.07.2015, passed by learned 1st Additional Sessions Judge, Roorkee, Haridwar, in Sessions Trial No. 22 of 7 2010, is hereby set aside in respect of the accusedappellants only, in terms of the compromise entered into between the parties, i.e., injured and the accusedappellants. The conviction and sentences recorded by the Trial Court against present appellants are set aside. Accused-appellants stand acquitted of the charges of Sections 308, 323/34, 325 and 506 of IPC." 7. In view of the above legal proposition, the compounding application moved by the parties in the present appeal is allowed. Impugned judgment and order dated 26.5.2007 is hereby set aside in terms of the compromise entered into between the parties. The conviction and sentences recorded by the Trial Court against present appellants are set aside. In view of the above legal proposition, the compounding application moved by the parties in the present appeal is allowed. Impugned judgment and order dated 26.5.2007 is hereby set aside in terms of the compromise entered into between the parties. The conviction and sentences recorded by the Trial Court against present appellants are set aside. Appellants stand acquitted of the charges of offences under Sections 323/34 and 308/34 IPC. 8. The Criminal Appeals are thus disposed of in terms of compromise arrived at between the parties. Let a copy of this Judgment, along with LCR, be sent to the court below for compliance.