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2024 DIGILAW 624 (UTT)

Naseem v. State of Uttarakhand

2024-10-03

RAKESH THAPLIYAL

body2024
JUDGMENT : RAKESH THAPLIYAL, J. 1. The instant criminal appeal has been preferred against the judgment and order dated 27.11.2021 passed in Special Sessions Trial No. 03 of 2018 State vs. Naseem and Others, whereby, the present appellants have been convicted for the offences punishable under Sections 323, 342, 367 of IPC. The sentence as awarded for the offence punishable under Sections 323 r/w Section 34 is six months simple imprisonment and for section 342 one year simple imprisonment and for section 367 five years simple imprisonment with a fine of Rs. 20,000/-. 2. Apart from this, the appellants have also been convicted under Section 3(1)(h) of S.C./S.T. Act for which each of the appellants have been awarded three years simple imprisonment with a fine of Rs. 20,000/-. In addition to this, the appellants have also been convicted for the offences punishable under Section 16 of Bonded Labour System (Abolition) Act, 1976, for which each of the appellants have been sentenced for three years simple imiprisonment with a fine of Rs. 2,000/-. This appeal was admitted on 10.12.2021 and subsequently all the appellants were enlarged on bail by the coordinate Bench of this Court by an order dated 06.01.2022. 3. Now, the compounding application No. IA 3 of 2022 has been filed for seeking composition of offences for which they have been convicted by the Trial Court. Consequently, on the compounding application the State was directed to file their objection by an order dated 29.11.2022. Now, the objection has been filed by the State. The compounding application has been moved, which is supported with the affidavits of each of the appellant as well as supported with the affidavit of injured Monu, injured Sonu and injured Kishori Devi. 4. In paragraph-10 of the compounding application it is contended that the appellants as well as the complainant and the injured are the residents of the same locality and during the pendency of the present appeal with interference of some elderly respective persons of the locality the parties have entered into a compromise and agreed to live peacefully. 5. Learned counsel for the appellants, apart from this, also submits that in fact there was some private dispute in between the parties; however, instead of resolving those disputes the unfortunate incident was happened and the FIR has been lodged. 5. Learned counsel for the appellants, apart from this, also submits that in fact there was some private dispute in between the parties; however, instead of resolving those disputes the unfortunate incident was happened and the FIR has been lodged. It is submitted that now since the appellants, complainant and the injured persons are living in the same locality and have known to each other; therefore, in order to maintain law and harmony in between them the offences in which they have been convicted be compounded. 6. The State in their objection submits that after thorough investigation the charge-sheet was filed and the prosecution witnesses supported the incident and when a particular question was put on State Counsel about the injuries he fairly submits that all the injuries are simple in nature. The State counsel also submits that so far as the panel provision under IPC is concerned the offences punishable under Section 367 in which the appellants have been convicted is non-compoundable; however, he submits that with the permission of the court this offence can be compounded and particularly since the appellants have been convicted; therefore, in view of Section 320(5) of Cr.P.C. the offences can be compounded with the leave of the court. 7. Apart from this, the State counsel have not disputed this fact that all the appellants and the respondent/complainant and the injured are living in the same locality and after the said incident they are not involved in any such criminal activity and their relations with the complainant and the injured are very cordial. So far as the offences punishable under Section SC/ST Act and the Bonded Labour System (Abolition) Act, 1976 is concerned, it is submitted it is a special Act and is not covered by Section 320 of Cr.P.C. however with the permission of the court on the basis of amicable settlement the same can also be compounded. 8. In a reference to this, learned counsel for the appellants submits that though the offences are covered under the Special Act, but now since the parties have settled the dispute by entering into a compromise and their relations are very cordial and they are not indulged in any criminal activity since the date when this incident was happened; therefore, these offences can also be compounded. 9. 9. Learned counsel for the appellants placed reliance in one of the judgment of Hon’ble Apex Court in the case of Ramgopal and Another vs. The State of Madhya Pradesh in Criminal Appeal No. 1489 of 2012 decided on 29.09.2021, wherein, it is held that if the nature of offences are not grievous and are appear to be prima-facie personal in nature then the High Court can quash the proceedings in exercise of its inherent powers under Section 482 of Cr.P.C. even if the offences are non-compoundable. 10. Learned counsel for the appellants Mr. Ramji Srivastava submits by referring the said judgment that even after conviction if the parties entered into a compromise the offences can be compounded. He also submits that one of the issue came up before the Hon’ble Apex Court in the case of Gian Singh vs. State of Punjab 2012 SCC 303 i.e. whether non-compoundable offences can be compounded by a Court or in the alternative, whether the High Court in exercise of its inherent powers under Section 482 of Cr.P.C. could quash non-compoundable offences, based on a compromise/settlement arrived at between the accused and the victim-complainant, and if so under what circumstances. Subsequently, in the case of Gian Singh the Hon’ble Apex Court laid down the following principle: “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. 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 pre-dominatingly 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. 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 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 questions is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.” 11. In the case of Ramgopal and Another (Supra) the Hon’ble Apex Court also gives the reference of another judgment i.e. in the case of State of Madhya Pradesh vs. Laxmi Narayan and Others (2019) 5 SCC 688 , wherein, three Judge Bench of Hon’ble Apex Court elaborated as under: “(1) that the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves. (2) such power is not to be exercised in those prosecutions which involved heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. (3) similarly, such power is not to be exercised for the offences under the special statutes like Prevention of Corruption Act or the offences 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. (4) xxx xxx xxx (5) while exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offences, which are private in nature and do not have a serious impart on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise etc.” 12. The inherent powers under Section 482 have also been dealt with in the said case for exercising the power for compounding the offences; therefore, it is necessary to reproduce paragraph-11 onwards to paragraph-14 herein as under: “11. True it is that offences which are ‘non-compoundable’ cannot be compounded by a criminal court in purported exercise of its powers under Section 320 Cr.P.C. Any such attempt by the court would amount to alteration, addition and modification of Section 320 Cr.P.C. which is the exclusive domain of Legislature. True it is that offences which are ‘non-compoundable’ cannot be compounded by a criminal court in purported exercise of its powers under Section 320 Cr.P.C. Any such attempt by the court would amount to alteration, addition and modification of Section 320 Cr.P.C. which is the exclusive domain of Legislature. There is no patent or latent ambiguity in the language of Section 320 Cr.P.C. which may justify its wider interpretation and include such offences in the docket of ‘compoundable’ offences which have been consciously kept out as non-compoundable. Nevertheless, the limited jurisdiction to compound an offence within the framework of Section 320 Cr.P.C. is not an embargo against invoking inherent powers by the High Court vested in it under Section 482 Cr.P.C. The High Court, keeping in view the peculiar facts and circumstances of a case and for justifiable reasons can press Section 482 Cr.P.C. in aid to prevent abuse of the process of any Court and/or to secure the ends of justice. 12. The High Court, therefore, having regard to the nature of the offence and the fact that parties have amicably settled their dispute and the victim has willingly consented to the nullification of criminal proceedings, can quash such proceedings in exercise of its inherent powers under Section 482 Cr.P.C. even if the offences are non compoundable. The High Court can indubitably evaluate the consequential effects of the offence beyond the body of an individual and thereafter adopt a pragmatic approach, to ensure that the felony, even if goes unpunished, does not tinker with or paralyze the very object of the administration of criminal justice system. 13. It appears to us that criminal proceedings involving non-heinous offences or where the offences are predominantly of a private nature, can be annulled irrespective of the fact that trial has already been concluded or appeal stands dismissed against conviction. Handing out punishment is not the sole form of delivering justice. Societal method of applying laws evenly is always subject to lawful exceptions. It goes without saying, that the cases where compromise is struck post conviction, the High Court ought to exercise such discretion with rectitude, keeping in view the circumstances surrounding the incident, the fashion in which the compromise has been arrived at, and with due regard to the nature and seriousness of the offence, besides the conduct of the accused, before and after the incidence. The touchstone for exercising the extra-ordinary power under Section 482 Cr.P.C. would be to secure the ends of justice. There can be no hard and fast line constricting the power of the High Court to do substantial justice. A restrictive construction of inherent powers under Section 482 Cr.P.C. may lead to rigid or specious justice, which in the given facts and circumstances of a case, may rather lead to grave injustice. On the other hand, in cases where heinous offences have been proved against perpetrators, no such benefit ought to be extended, as cautiously observed by this Court in Narinder Singh & Ors. vs. State of Punjab & Ors. and Laxmi Narayan (Supra). 14. In other words, grave or serious offences or offences which involve moral turpitude or have a harmful effect on the social and moral fabric of the society or involve matters concerning public policy, cannot be construed betwixt two individuals or groups only, for such offences have the potential to impact the society at large. Effacing abominable offences through quashing process would not only send a wrong signal to the community but may also accord an undue benefit to unscrupulous habitual or professional offenders, who can secure a ‘settlement’ through duress, threats, social boycotts, bribes or other dubious means. It is well said that “let no guilty man escape, if it can be avoided.” 13. In paragraph-19 the Hon’ble Supreme Court held as under: “19. We thus sumup and hold that as opposed to Section 320 Cr.P.C. where the Court is squarely guided by the compromise between the parties in respect of offences ‘compoundable’ within the statutory framework, the extra-ordinary power enjoined upon a High Court under Section 482 Cr.P.C. or vested in this Court under Article 142 of the Constitution, can be invoked beyond the metes and bounds of Section 320 Cr.P.C. Nonetheless, we reiterate that such powers of wide amplitude ought to be exercised carefully in the context of quashing criminal proceedings, bearing in mind: (i) Nature and effect of the offence on the conscious of the society; (ii) Seriousness of the injury, if any; (iii) Voluntary nature of compromise between the accused and the victim; & (iv) Conduct of the accused persons, prior to and after the occurrence of the purported offence and/or other relevant considerations.” 14. Apart from this, in respect of the offences which are covered by the Special Act a further reference has been made of the judgment rendered by the Hon’ble Apex Court in the case of Ram Awatar vs. State of Madhya Pradesh, (2022) 13 SCC 635 and in this judgment in paragraph 13 the issue whether after conviction the proceedings can be annulled on the basis of compromise has also been dealt with, which read as under: “13. We, however, put a further caveat that the powers under Article 142 or under Section 482 Cr.P.C. are exercisable in postconviction matters only where an appeal is pending before one or the other Judicial forum. This is on the premise that an order of conviction does not attain finality till the accused has exhausted his/her legal remedies and the finality is subjudice before an appellate court. The pendency of legal proceedings, be that may before the final Court, is sinequanon to involve the superior court’s plenary powers to do complete justice. Conversely, where a settlement has ensued post the attainment of all legal remedies, the annulment of proceedings on the basis of a compromise would be impermissible. Such an embargo isnecessitated to prevent the accused from gaining an indefinite leverage, for such a settlement/compromise will always be loaded with lurking suspicion about its bona fide. We have already clarified that the purpose of these extraordinary powers is not to incentivise any hollow-hearted agreements between the accused and the victim but to do complete justice by effecting genuine settlements.” In paragraphs 16 and 17 the offences which are covered under the SC/ST Act has also been dealt with and the same are being reproduced herein as under: “16. Ordinarily, when dealing with offences arising out of special statutes such as the SC/ST Act, the Court will be extremely circumspect in its approach. The SC/ST Act has been specifically enacted to deter acts of indignity, humiliation and harassment against members of Scheduled Castes and Scheduled Tribes. The Act is also a recognition of the depressing reality that despite undertaking several measures, the Scheduled Castes/Scheduled Tribes continue to be subjected to various atrocities at the hands of uppercastes. The SC/ST Act has been specifically enacted to deter acts of indignity, humiliation and harassment against members of Scheduled Castes and Scheduled Tribes. The Act is also a recognition of the depressing reality that despite undertaking several measures, the Scheduled Castes/Scheduled Tribes continue to be subjected to various atrocities at the hands of uppercastes. The Courts have to be mindful of the fact that the Act has been enacted keeping in view the express constitutional safeguards enumerated in Articles 15, 17 and 21 of the Constitution, with a twinfold objective of protecting the members of these vulnerable communities as well as to provide relief and rehabilitation to the victims of castebased atrocities. 17. On the other hand, where it appears to the Court that the offence in question, although covered under the SC/ST Act, is primarily private or civil in nature, or where the alleged offence has not been committed on account of the caste of the victim, or where the continuation of the legal proceedings would be an abuse of the process of law, the Court can exercise its powers to quash the proceedings. On similar lines, when considering a prayer for quashing on the basis of a compromise/settlement, if the Court is satisfied that the underlying objective of the Act would not be contravened or diminished even if the felony in question goes unpunished, the mere fact that the offence is covered under a ‘special statute’ would not refrain this Court or the High Court, from exercising their respective powers under Article 142 of the Constitution or Section 482 Cr.P.C.” 15. The State counsel have not disputed the law laid down by the Hon’ble Apex Court in the aforesaid judgment, which has been relied upon by the learned counsel for the appellants. 16. I have gone through with the allegations and the judgment rendered by the Trial Court convicting the present appellants and it appears that all the parties are living in the same locality and the dispute in between them appears to be personal in nature and not against the society and even after the said incident they are not indulged in any criminal activity. So far as the offences punishable under the Special Act i.e. SC/ST Act and the Bonded Labour System (Abolition) Act, 1976 are concerned since the parties have settled their dispute and in view of the law laid down by the Hon’ble Apex Court in the case of Ram Awatar vs. State of Madhya Pradesh particularly in paragraph-17 this Court by exercising the inherent powers conferred by Section 482 Cr.P.C. can also compound these offences. 17. Apart from this, the incident was happened in the year 2017 and now we are in 2024 and it has been informed to this court that since 2017 these appellants are not indulged in any criminal activity. I have also gone through with the assertions as made in the compounding application and this court also interact with each of the appellant and the respondent/complainant and the victim, who are present in court and are identified by their respective counsel through their Aadhar cards and is also of the view that in view of the law laid down in the case of Ramgopal and Another vs. The State of Madhya Pradesh as well as in the case Ram Awatar vs. State of Madhya Pradesh (supra) the compounding application deserves to be allowed. 18. Consequently, and for the reasons aforesaid to do the complete justice between the parties the compounding application is allowed with a cost of Rs. 50,000/- to be deposited in Advocates’ Welfare Fund within a month. As a sequel thereto the judgment and order passed by the Trial Court is set-aside. Bail bonds if any are discharged and the appellant shall be deemed to be acquitted of the charges for all intents and purposes. 19. The present criminal appeal is accordingly disposed of in above terms. The Registry is directed to remit record of trial to the concerned Trial Court.