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2024 DIGILAW 905 (GUJ)

Jayrajbhai Devayatbhai Khuman v. State of Gujarat

2024-04-16

HASMUKH D.SUTHAR

body2024
JUDGMENT : HASMUKH D. SUTHAR, J. 1. Learned advocate Mr. Abhishek Khuman states that he has instructions to appear on behalf of the original complainant and thereby, seeks permission to file his Vakalatnama, which is granted. 2. RULE . Learned advocates waive service of Rule on behalf of the respective respondents. 3. Considering the facts and circumstances of the case and since it is jointly stated at the bar by learned advocates on both the sides that the dispute between the parties has been resolved amicably, this matter is taken up for final disposal forthwith. 4. By way of this petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”), the petitioners have prayed to quash and set aside the proceedings of Sessions Case No.79 of 2004 passed by District Court, Amreli, dated 23.01.2008, which was initiated pursuant to the offence registered at Savarkundla Rural Police Station, Dist. Amreli, for the offence under Sections 307 and 34 of INDIAN PENAL CODE , 1860 and Section 135 of the G.P.Act. 5. After investigation, chargesheet came to be filed before the Court of learned Sessions Judge, Amreli, which was culminated into Sessions Case No.79/2004. After hearing both the sides and after recording the evidence, learned Sessions Judge had been pleased to acquit the accused under Section 307 of INDIAN PENAL CODE , 1860, however, convicted under Section 326 read with Section 34 of INDIAN PENAL CODE , 1860 and ordered to undergo four years rigorous imprisonment and imposed fine of Rs.25,000/- each, failing which, to undergo one year simple imprisonment. It was also ordered that from the total amount of fine of Rs.1,00,000/-, Rs.90,000/- shall be paid to the victim – Mukesh Lalji as compensation under Section 357 (3) of Cr.P.C. 6. Being aggrieved by the said order of conviction, the petitioners had preferred Criminal Appeal No.928/2008 before this Court. During pendency of the appeal, the complainant and injured son were expired, but respondent No.3 being brother of the complainant, had filed an application seeking enhancement of sentence. This Court by common order dated 19.07.2023 dismissed both the appeal as well as application. The said order of conviction was subject matter of challenge before the Hon'ble Apex Court by way of filing SLP (Cri.) No.13158/2023. This Court by common order dated 19.07.2023 dismissed both the appeal as well as application. The said order of conviction was subject matter of challenge before the Hon'ble Apex Court by way of filing SLP (Cri.) No.13158/2023. The petitioner Nos.2 and 3 surrendered, whereas, petitioner No.1 applied for exemption (for surrender), which came to be allowed by the Hon'ble Apex Court. SLP was initially placed for admission hearing and thereafter, the Hon'ble Apex Court had been pleased to dismiss the SLP vide order dated 16.10.2023. 7. Heard Mr. Ashish M. Dagli, learned counsel for the petitioners, Ms. C.M.Shah, learned APP for the respondent State and Mr.Abhishek Khuman, learned counsel for respondent No.3. 8. Learned counsel for the petitioners has submitted that, during passage of time and as main members in both the family have expired, the parties have buried their grudge and entered into an amicable settlement. He has submitted that, both the injured had passed away and due to intervention of community people and elders of the society, it was decided to live peacefully rather than fight against each other. Therefore, present petition is filed for consent quashing. He also submitted that, both the families have started to visit each other’s house and even, they have attending small functions in their families. Even appropriate compensation is also agreed to give by the accused side to the complainant side. He also submitted that, petitioner No.1 is an agriculturist and practicing as an advocate since 2006, having responsibility of his wife and minor 3 years old daughter. He has taken total loan of Rs.14 lacs, which is yet to be paid and installment of Rs.15,000/- p.m is being paid by him. He also submitted that, petitioner No.2 is also an agriculturist and residing with his family, whereas, petitioner No.3 is an illiterate person and running his livelihood by agriculture. 9. To buttress his arguments, Mr. Dagli has relied on judgment of the Hon'ble Apex Court reported in Ramgopal Vs. State of Madhya Pradesh , reported in AIR Online 2021 SC 1356 , and submitted that, there is no bar to entertain such petition after post conviction considering the fact that compromise is arrived at between the parties and now the parties want to keep their relations good. He has also submitted that the offence is not against the State. State of Madhya Pradesh , reported in AIR Online 2021 SC 1356 , and submitted that, there is no bar to entertain such petition after post conviction considering the fact that compromise is arrived at between the parties and now the parties want to keep their relations good. He has also submitted that the offence is not against the State. In view of the above facts, learned counsel for the petitioners submitted that now the dispute no longer exists between the parties and therefore, this Court may exercise inherent jurisdiction under Section 482 of the Code and to quash and set aside the order of conviction recorded by learned Sessions Court. 10. Per contra, learned APP has opposed the present petition and contended that, as the present petition is based on misconception and conviction had already been recorded, question does not arise to compromise the matter. 11. At the outset, it is worth to mention that, petition is filed under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure. It is an admitted and undisputed fact that, the petitioners were convicted after following due procedure of law and then, conviction and sentence came to be assailed by way of availing statutory remedy upto the Hon'ble Apex Court. In short, the petitioners have exhausted all remedies and during pendency of the proceedings and at no point of time, either before the Sessions Court or before this Court, settlement had been arrived at. But after post conviction, appeal preferred and had been dismissed by two higher forums and therefore, present consent quashing petition is filed based on settlement. So far Article 226 of the Constitution of India is concerned, whether statutory remedy is availed and after following due process, present petitioners were convicted. Hence, question does not arise to violate fundamental rights of the petitioners. 12. Another question of application of Section 482 of Cr.P.C is concerned, scope of inherent powers of High Court is permissible to give effect in order under the Code of Criminal Procedure or to prevent an abuse of process of any Court, or otherwise, to secure the ends of justice is permissible. The Hon'ble Apex Court has summarized the principle to quash the proceedings and exercised inherent jurisdiction. In the instant case of non-bailable offence, the petitioners are convicted. The Hon'ble Apex Court has summarized the principle to quash the proceedings and exercised inherent jurisdiction. In the instant case of non-bailable offence, the petitioners are convicted. Even in a case, the Court may exercise inherent power considering the peculiar facts of the case, keeping in mind the provisions of Sections 320 and 320 (2) of Cr.P.C in compoundable and non-compoundable cases also. But in the present case, facts are quite different. Even while exercising inherent powers after post conviction in non-compoundable offence, compromise cannot be allowed only because of parties have compromised matter. As the order of conviction cannot be set aside on the basis of settlement and as the offence is against the State, only right of the complainant or victim to set the criminal law into motion. It is duty of the State to maintain law and order and to ensure it to bring the accused or offender guilt at home. After post conviction, question does not arise to settle the dispute between the parties as the offence is against the State. Here, in the case on hand, offence under Section 326 of IPC is non-compoundable and not only that, conviction is confirmed upto the Hon'ble Apex Court. 13. Learned counsel for the petitioners has also relied on the oral order of Coordinate Bench of this Court rendered in case of Manojbhai Bipinbhai Vasava Vs. State of Gujarat [(SCR.A-219/2023) dated 02.02.2023 ], but considering the facts of the case, the said order is having no any binding effect and no any law is laid down and only based on the judgment of the Hon'ble Apex Court in case of Ramgopal (Supra), Coordinate Bench of this Court has come to the conclusion that as the victim has willingly consented to the nullification of criminal proceedings, the proceedings being quashed after conviction. In light of the judgment of the Apex Hon'ble Court in case of Gian Singh Vs. State of Punjab & Anr. , reported in (2012) 10 SCC 303 , it is needless to say that in a given case, no proceedings are pending and therefore, question does not arise to quash the proceedings and other consequential proceedings arising therefrom. In light of the judgment of the Apex Hon'ble Court in case of Gian Singh Vs. State of Punjab & Anr. , reported in (2012) 10 SCC 303 , it is needless to say that in a given case, no proceedings are pending and therefore, question does not arise to quash the proceedings and other consequential proceedings arising therefrom. Even Coordinate Bench of this Court has relied on the judgment of the Hon'ble Apex Court in case of Ramgopal (Supra) and learned counsel for the petitioners has also relied on the same authority, but it is needless to say that, the Hon'ble Apex Court (three Judge Bench) in a case of Ramawatar Vs. State of Madhya Pradesh , reported (2022) 13 SCC 635 , has discussed the scope of Section 482 of the Code of Criminal Procedure and Section 320 of Cr.P.C. Quashment of proceedings in case of non-compoundable offence; when permissible by invocation of such inherent powers referring the said authority and the Hon’ble Apex Court has come to the conclusion that such permission is permissible only when appeal is pending before one or other judicial forum and where a settlement has ensured post the attainment of all legal remedies, the annulment of proceedings on the basis of a compromise would be impermissible. Paragraphs 12 and 13 read as under:- “12. In view of the settled proposition of law, we affirm the decision of this Court in Ramgopal (Supra) and riterate that the powers of this Court under Article 142 can be invoked to quash a criminal proceeding on the basis of a voluntary compromise between the complainant/victim and the accused. 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. 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 is necessitated 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 settlement(s).” In view of the above settled principle, authority i.e. Ramgopal (Supra) as relied upon by learned counsel for the petitioners would not avail any assistance. 14. Further, reference is required to be made by Full Bench judgment rendered in case of Maya Sanjay Khandare Vs. State of Maharashtra reported in 2021 (1) Mah. Law Journal, wherein full Bench of Mumbai High Court, has discussed the scope of compromise between the parties after conviction in non-compoundable offence and come to the conclusion that the compromise between the parties in non-compoundable offence cannot be the reason to quash and set aside the conviction. In the said reference, Full Bench of Mumbai High Court (Nagpur Bench) has examined the scope and power of Cr.P.C. for quashing criminal proceedings of post conviction in non-compoundable offence based on settlement between the convict, victim and complainant and has answered as under:- “32. …………. We have noted above the consistent line of decisions of the Hon'ble Supreme Court wherein it has been held in clear terms that settlement or compromise by itself cannot be a ground for setting aside conviction for a non-compoundable offence. In fact, even in offences that are of a private nature and not having a serious impact on society, the Hon'ble Supreme Court has maintained the conviction of the accused but has reduced the sentence as imposed. If jurisdiction was being exercised under Section 482 of the Code by this Court in some cases but such exercise of jurisdiction was not in accord with the law of the land such practice cannot be saved by applying the principle of stare decisis………..” 15. If jurisdiction was being exercised under Section 482 of the Code by this Court in some cases but such exercise of jurisdiction was not in accord with the law of the land such practice cannot be saved by applying the principle of stare decisis………..” 15. It is pertinent to note that accused persons are convicted and conviction is confirmed by the appellate forum. To nullify the aforesaid order of sentence by way of compromise, this petition is filed. It is needless to say that in the sovereign and welfare of the State, rule of law must prevail to respect all and maintain peace in the society. In criminal justice, administration system weighing sentence to criminal or offender is main object, which not only rehabilitate the victim, but having deterrent effect in the society. Hence, it is the duty of the Court when the offence is committed, and once the offence is proved, then Court should award appropriate sentence considering the gravity of offence and it is settled principle of law. In this regard, reference is required to be made on the judgment of the Hon'ble Apex Court in case of Shailesh Jaswantbhai & Anr. Vs. State of Gujarat & Ors, reported in (2006) 2 SCC 359 wherein, the Hon’ble Apex Court observed as under:- “7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a corner-stone of the edifice of "order" should meet the challenges confronting the society. Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. 8. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc.” 16. Further, this position was also reiterated by a three-Judge Bench of the Hon’ble Apex Court in case of Ahmed Hussein Vali Mohammad Saiyed & Anr. Vs. State of Gujarat, reported in (2009) 7 SCC 254 wherein, it was observed as under:- “99. The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system. 100. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. 100. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which both the criminal and the victim belong.” 17. Further, the Hon’ble Apex Court in case of Guru Basavaraj alias Benne Settapa Vs. State of Karnataka , reported in (2012) 8 SCC 734 The Hon’ble Apex Court while discussing the concept of appropriate sentence, observed as under: “It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice which includes adequate punishment cannot be lightly ignored.” Also, in case of Gopal Singh Vs. State of Uttarakhand , reported in JT 2023 (3) SC 444 , the Hon'ble Apex Court held as under:- “Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence.” It is also appropriate to refer to the judgment of the Hon’ble Apex Court in a case of State of M.P Vs. Najib Khan & Ors, reported in AIR 2013 SC 2997, wherein, the Hon’ble Apex Court in para 15 held as under: “15. In view of the above, we reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The Courts must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment.” 18. These all aspects are required to be kept in mind while sentencing the accused. Herein, the accused are convicted after following due process of law. The criminal justice has taken proper care and rights of the victim and accused and try to balance between the rights of both. Even pre-trial rights are given to the accused and even after filing of the chargesheet and during pendency of the trial, if offence is not punishable upto life imprisonment or death, or punishment of sentence is not exceeded of 7 years, in that event, Chapter-21A of the Cr.P.C is inserted for plea bargaining. Even after giving full opportunity and following due process of law, at the time of imposing sentence, Court has to take into consideration Sections 235, 228, 325, 360 and 361 of Cr.P.C and deal with all punishment. The punishment should not be so severe or so light. That it fails to have an effect on the Society. Under the penology, there are different theory of punishment like deterrent, retributive, preventive and reformative. Even after imposing sentence also, powers under Articles 72 and 161 of the Constitution of India and Sections 432 and 433 of Cr.P.C are bestowed to the Government. The Government may commute, condone or pardon the sentence. Thus, legislature has taken proper care at a pre-trial stage, during the trial and after post conviction stage. 19. Even after imposing sentence also, powers under Articles 72 and 161 of the Constitution of India and Sections 432 and 433 of Cr.P.C are bestowed to the Government. The Government may commute, condone or pardon the sentence. Thus, legislature has taken proper care at a pre-trial stage, during the trial and after post conviction stage. 19. Here, in the instant case, the petitioners after exhausting all available remedies have approached this Court to invoke the inherent jurisdiction under Section 482 of the Cr.P.C to nullify the conviction and sentence. The offence is not compoundable offence. 20. For the foregoing discussions and reasons, present petition does not deserve any consideration and hence, it is dismissed at admission stage.