Jharkhand High Court
Balo Mahto Son Of Late Lato Mahto vs The State Of Jharkhand on 17 February, 2022
Author: Navneet Kumar
Bench: Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No.1123 of 2004
(Against the judgment of conviction and order of sentence both dated
10th June, 2004, passed by learned 9th Additional Sessions Judge,
Hazaribag, in Sessions Trial No. 101 of 2001, arising out of Barkatha
P.S. Case No. 23 of 2000, G.R. Case No 450/2000,Hazaribag
Jharkhand.)
Balo Mahto son of late Lato Mahto, resident of Village- Sudan, Police
Station- Barkatha, District- Hazaribag
.....Appellant
Versus
The State of Jharkhand
........Respondent
PRESENT
HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the appellant : Mr. Jyoti Prasad Sinha, Advocate For the State : Mrs. Nehala Sharmin, A.P.P. For the informant : Mr. Arpit Kumar, Advocate Through: Video Conferencing Navneet Kumar, J. This Appeal has been preferred against the Judgment of conviction and order of sentence dated 10th June, 2004, passed by learned 9th Additional Sessions Judge, Hazaribag, in Sessions Trial No. 101 of 2001, arising out of Barkatha P.S. Case No. 23 of 2000, whereby and where under, the appellant Balo Mahto has been convicted for the offence punishable under Sections 341, 326 & 448 of the Indian Penal Code while two other accused persons were convicted for the offence under Sections 323 and 448 of the Indian Penal Code and were released on admonition under the provisions of Probation of Offenders Act whereas the appellant Balo Mahto has been sentenced to undergo R.I. for six months for the offence punishable under Section 341 of the Indian Penal Code, R.I. for one year for the offence punishable under Section 448 of the Indian Penal Code and R.I. for three years along 2. with a fine of Rs.500/- for the offence punishable under Section 326 of the Indian Penal Code and in default of payment of fine to undergo S.I. for one month. However, all the sentences have been directed to run concurrently.
2. Facts of the case are as under: A written report was submitted by the informant Mahadeo Mahto (PW 2), stating therein that on 15.03.2000 at about 11.00 pm Balo Mahto (appellant), Most. Kaili and Devki started knocking the door of the informant and on hearing the sound of knocking, when the wife of his elder brother opened the door, immediately aforesaid three accused persons entered into the courtyard and in the meantime, the informant and his wife Phulwa Devi also came in their courtyard from their room and then Balo twisted the neck of his wife and got her fallen down and other two lady accused started assaulting her by legs and hands and Balo Mahto (appellant) gave one Farsa (a sharp cutting weapon) blow to the informant, which resulted into bleeding from his head and then the informant snatched the Farsa and threw the same on his roof. Thereafter, Balo Mahto (appellant) started assaulting the informant by stick, as a result of which he became unconscious and fell down. Thereafter Mathura Mahto, Baikunt Pandey and Uni Singh came there and rescued him from being assaulted. Cause of dispute is not allowing the accused persons to fetch water from the well by the informant's elder brother.
3. On the basis of the aforesaid written report, a formal F.I.R. was drawn and a case was registered against the appellant and two other accused, namely, Most. Kaili and Devki for the offence punishable under Sections 341, 323, 324, 307 and 448/34 of the Indian Penal Code and thereafter, investigation of the case was carried out and after completion of investigation, charge-sheet 3. was submitted and the case was committed to the court of Sessions and the learned trial court framed charges on 24.04.2002 against all the three accused persons, including the appellant- Balo Mahto, for the offence punishable under Sections 341/ 323/ 448/ 307/34 of the Indian Penal Code and after conducting trial, the impugned judgment of conviction and order of sentence was passed against the appellant, which is under challenge in this Appeal.
4. Heard the parties including Mr. Jyoti Prasad Sinha on behalf of the appellant, Mr. Arpit Kumar on behalf of informant and the leaned APP Mrs. Nehala Sharmin on behalf of the State.
5. Mr. Jyoti Prasad Sinha, learned defence counsel appearing on behalf of the appellant has submitted that altogether three persons have faced the trial, including the appellant- Balo Mahto, and after conclusion of the trial, while other two accused, namely, Most. Kaili and Devki, were convicted for the offences punishable under Sections 323 and 448 of the Indian Penal Code and released on admonition under the provisions of Probation of Offenders Act, 1961, the sole appellant was convicted for the offence punishable under Sections 341, 326 and 448 of the Indian Penal Code vide the impugned judgment of conviction and order of sentence.
6. It has been pointed out that during pending of the Appeal, both the parties, including the sole appellant- Balo Mahato and the informant- Mahadeo Mahto (victim) have entered into a compromise and a joint compromise petition has been filed vide I.A. (Cr.) No. 959 of 2022 and Mr. Arpit Kumar, learned counsel, who has appeared on behalf of the informant Mahadeo Mahato (victim), is also present.
7. It has been contended by the learned defense counsel appearing on behalf of the appellant that since the matter has been 4. compromised and one of the offences under which the appellant has been convicted i.e. Section 326 I.P.C. is not compoundable but under the facts and circumstances of this case and in the light of catena of decisions of Hon'ble Supreme Court and also in view of the joint compromise petition, let this matter be allowed to be compounded despite the nature of one of the offences under Section 326 I.P.C. being non-compoundable whereas two offences under sections 341 and 448 of IPC are compoundable under which the appellant was convicted.
8. Learned counsel appearing on behalf of the informant has also submitted that the matter has been compromised and both the parties, including the appellant and the informant, now do not want to pursue their cases further. Therefore, in the light of joint compromise petition, annexed with I.A.( Cr.) No. 959 of 2022, the learned defense counsel and also the learned counsel appearing on behalf of the informant jointly submitted that let this appeal be allowed to be compounded and relying upon the decisions of Hon'ble Supreme Court in the case of Gian Singh Versus State of Punjab report in (2012) 10 SCC 303, Narinder Singh & Ors. vs. State of Punjab & Anr., as reported in (2014) 6 SCC 466 and in the case of Yogendra Yadav & Ors. vs. State of Jharkhand & Anr., as reported in (2014) 9 SCC 653, it has been submitted that they do not want to argue on merits.
9. On the other hand, learned A.P.P. appearing on behalf of the State without controverting the fact-um of compromise, which has been filed jointly on behalf of the appellant and the informant vide I.A. (Cr.) No. 959 of 2022, opposed the contentions made by learned counsels for both the parties, and contended that since the offence under Section 326 I.P.C. is non-compoundable and the impugned judgment of conviction and order of sentence is based upon cogent and reliable evidences and the learned trial court has rightly appreciated the evidences on record, opposed such stand taken jointly by the appellant and the injured- informant (P.W. 2) in the light of the offence punishable under Section 326 I.P.C. under which the appellant has been convicted 5. in addition to two offences under sections 341 and 448 of IPC which are compoundable.
10. Having heard the parties, perused the records of this case.
11. It appears that three persons had faced the trial, including the sole appellant and two women accused. Two of them, namely, Most. Kaili and Devki, were convicted only for the offences punishable under Sections 323 & 448 of the Indian Penal Code and they were released on admonition under the provisions of Probation of Offenders Act, 1961 and the sole appellant Balo Mahto having been convicted for the offence punishable under Sections 341, 326 and 448 of the Indian Penal Code was sentenced to undergo R.I. for six months for the offence punishable under Section 341 of the Indian Penal Code, R.I. for one year for the offence punishable under Section 448 of the Indian Penal Code and R.I. for three years along with a fine of Rs.500/- for the offence punishable under Section 326 of the Indian Penal Code and in default of payment of fine to undergo S.I. for one month.
12. Now it is found that both the parties, including the sole appellant and the informant-victim, have entered into a compromise and an Interlocutory Application vide I.A. (Cr.) No. 959 of 2022, to that effect has been filed, which is on record. From the perusal of the said Interlocutory Application, it appears that the informant Mahadeo Mahto (P.W. 2) was the cousin and Gotia (agnates) of appellant Balo Mahto and they were residing in the same house in a very harmonious and congenial atmosphere. It has been stated in the joint compromise petition that they have compromised the matter and they have settled all their grievances once and for all and therefore it has been pointed out that in the interest of justice the instant application for compounding the offence be allowed and let this appeal be compounded.
13. In view of the aforesaid facts, a question before this Court is 6. as to whether this Court can allow the offence to be compounded which is a non-compoundable, or not?
14. At the outset, this Court proceeds to comprehend a few rulings of Hon'ble Supreme Court viz. Gian Singh Vs. State of Punjab (2012)10 SCC 303; State of Madhya Pradesh Vs. Laxmi Narayan & Ors. (2019)5 SCC 688; Yogendra Yadav & Ors. Vs. State of Jharkhand & Anr. (2014)9 SCC 653 & Narinder Singh & Ors. Vs. State of Punjab & Anr. (2014)6 SCC 466.
15. The Hon'ble Supreme Court in the case of Gian Singh Vs. State of Punjab (2012)10 SCC 303 has laid down the following principles:
"58. Where the High Court quashes a criminal proceeding having regard to the fact 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.
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61. ...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 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. 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 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 7. 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 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."
16. In the case of State of Madhya Pradesh Vs. Laxmi Narayan & Ors. (2019) 5 SCC 688 elaborating the principle, Hon'ble Supreme Court observed at para 15 as under:
"15.1. 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;
15.2. 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;
15.3. Similarly, such power is not to be exercised for the offences under the special statutes like the 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;
xxx xxx xxx 15.5. 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 impact 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."
17. Further, in the case of Yogendra Yadav & Ors. Vs. State of Jharkhand & Anr. reported in (2014) 9 SCC 653, recapitulating the 8. Principle laid down in Gian Singh (supra) it has been observed as under :
"4. ........... Needless to say that offences which are noncompoundable cannot be compounded by the court. Courts draw the power of compounding offences from Section 320 of the Code. The said provision has to be strictly followed (Gian Singh v. State of Punjab [(2012) 10 SCC 303). However, in a given case, the High Court can quash a criminal proceeding in exercise of its power under Section 482 of the Code having regard to the fact that the parties have amicably settled their disputes and the victim has no objection, even though the offences are non-compoundable. In which cases the High Court can exercise its discretion to quash the proceedings will depend on facts and circumstances of each case. Offences which involve moral turpitude, grave offences like rape, murder, etc. cannot be effaced by quashing the proceedings because that will have harmful effect on the society. Such offences cannot be said to be restricted to two individuals or two groups. If such offences are quashed, it may send wrong signal to the society. However, when the High Court is convinced that the offences are entirely personal in nature and, therefore, do not affect public peace or tranquillity and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, it should not hesitate to quash them. In such cases, the prosecution becomes a lame prosecution. Pursuing such a lame prosecution would be waste of time and energy. That will also unsettle the compromise and obstruct restoration of peace."
18. As a matter of fact from the aforesaid propositions of law as propounded by the Hon'ble Supreme court in Gian Singh's case (Supra), Laxmi Narayan's case (Supra), and Yogender Yadav's Case (Supra) it is now well settled that the offences which are non- compoundable cannot be compounded by a criminal Court under section 320 Cr.P.C. In spite of that there is an scope of compounding the offences by invoking inherent powers of the High Court vested in it under section 482 of Cr.P.C. in aid to prevent abuse of the process of any court and/or to secure the ends of justice by taking into consideration the circumstances surrounding the incident, the manner and mode under which the compromise has been arrived at between the parties, and further due consideration to the nature and seriousness of the offence, in addition to the conduct of the accused, before and after the incident. But such power is to be exercised very carefully, diligently and cautiously as observed by Hon'ble Supreme Court in 9. Narinder Singh & Ors. Vs. State of Punjab & Anr. reported in (2014) 6 SCC 466, as follows :
"22. Thus, we find that in certain circumstances, this Court has approved the quashing of proceedings under Section 307 IPC whereas in some other cases, it is held that as the offence is of serious nature such proceedings cannot be quashed. Though in each of the aforesaid cases the view taken by this Court may be justified on its own facts, at the same time this Court owes an explanation as to why two different approaches are adopted in various cases. The law declared by this Court in the form of judgments becomes binding precedent for the High Courts and the subordinate courts, to follow under Article 141 of the Constitution of India. Stare decisis is the fundamental principle of judicial decision- making which requires "certainty" too in law so that in a given set of facts the course of action which law shall take is discernible and predictable. Unless that is achieved, the very doctrine of stare decisis will lose its significance. The related objective of the doctrine of stare decisis is to put a curb on the personal preferences and priors of individual Judges. In a way, it achieves equality of treatment as well, inasmuch as two different persons faced with similar circumstances would be given identical treatment at the hands of law. It has, therefore, support from the human sense of justice as well. The force of precedent in the law is heightened, in the words of Karl Llewellyn, by "that curious, almost universal sense of justice which urges that all men are to be treated alike in like circumstances".
23. As there is a close relation between equality and justice, it should be clearly discernible as to how the two prosecutions under Section 307 IPC are different in nature and therefore are given different treatment. With this ideal objective in mind, we are proceeding to discuss the subject at length. It is for this reason we deem it appropriate to lay down some distinct, definite and clear guidelines which can be kept in mind by the High Courts to take a view as to under what circumstances it should accept the settlement between the parties and quash the proceedings and under what circumstances it should refrain from doing so. We make it clear that though there would be a general discussion in this behalf as well, the matter is examined in the context of the offences under Section 307 IPC."
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26. Having said so, we would hasten to add that though it is a serious offence as the accused person(s) attempted to take the life of another person/victim, at the same time the court cannot be oblivious to hard realities that many times whenever there is a quarrel between the parties leading to physical commotion and sustaining of injury by either or both the parties, there is a tendency to give it a slant of an offence under Section 307 IPC as well. Therefore, only because FIR/charge-sheet incorporates the provision of Section 307 IPC would not, by itself, be a ground to reject the petition under Section 482 of the Code and refuse to accept the settlement between the parties. We are, therefore, of the opinion that while taking a call as to whether compromise in such cases should be effected or not, the High Court should go by the nature of injury sustained, the portion of the bodies where the injuries were inflicted (namely, whether injuries are caused at the vital/delicate parts of the 10. body) and the nature of weapons used, etc. On that basis, if it is found that there is a strong possibility of proving the charge under Section 307 IPC, once the evidence to that effect is led and injuries proved, the Court should not accept settlement between the parties. On the other hand, on the basis of prima facie assessment of the aforesaid circumstances, if the High Court forms an opinion that provisions of Section 307 IPC were unnecessarily included in the charge-sheet, the Court can accept the plea of compounding of the offence based on settlement between the parties."
19. In the light of clear-cut circumstance for compounding the offences which are non-compoundable in nature, it is evident that justice is to maintain the social order. In a democratic society governed by rule of law, lawful expectations of law abiding citizen are the core principle of 'Justice Delivery System'. In a criminal case where offences are of pure personal nature, not heinous or brutal and not adversely affecting the society at large being a private nature and the parties concerned have willingly and voluntarily settled their differences amicably, it would be in the fitness of things that non-compoundable offences can be allowed to be compounded, of course with righteousness and probity irrespective of the fact that the trial has already been concluded and the post-conviction compromise has taken place at the appellate stage.
20. In the present case, it is found that both the parties are closely related to each other as they are Gotias being the descendants of common ancestor. Admittedly the dispute arose between the parties over fetching water from the well in the wake of claim and counter claim of the landed properties. Thus it is a pure personal nature of dispute between the brothers and now the dispute has been resolved amicably and both of them including the accused-appellant and informant wanted to lead a happy and peaceful life in a Cordial atmosphere as evident from the joint compromise application jointly filed vide I.A. (Cr.) No. 959 of 2022, and from perusal of the said Interlocutory Application it is found that all the differences have been settled between them and they are residing in a very peaceful and harmonious relationship amicably and, therefore, in the interest of justice it would be just and fair that the offence punishable under Section 326 I.P.C. which is non-
11.compoundable in nature, be compounded in the interest of justice talking into consideration the joint compromise petition filed by the appellant and also by the informant vide I.A. (Cr.) No. 959 of 2022. It is found that it is purely a personal nature of dispute between the parties and a mutual compromise has taken place and neither any public policy nor any sense of brutality or ruthlessness in the offence is found nor there is a dispute affecting the society at large and, therefore, taking into consideration all these factors, it is found just and fair to get the offence compounded. Further, it is also found that the incident had taken place as far back as on 15.03.2000 i.e. about 22 years back and both the parties being the cousin are living in a harmonious atmosphere after resolving their all differences, and therefore, let the offence punishable under Section 326, 341 and 448 I.P.C. be compounded under the facts and circumstances of the present case. Consequent thereto, the Judgment of conviction and order of sentence dated 10th June, 2004, passed by learned 9th Additional Sessions Judge, Hazaribag, in Sessions Trial No. 101 of 2001, arising out of Barkatha P.S. Case No. 23 of 2000 is hereby set aside and this Appeal is allowed as compounded. Since the appellant is on bail he is discharged from the liability of the bail bonds.
21. I.A. (Cr.) No. 959 of 2022 also stands disposed of.
22. Let the lower court record be sent back to the learned court below along with a copy of the judgment.
(Navneet Kumar, J.) Jharkhand High Court, Ranchi Dated the 17th February, 2022 A.K.Verma/ N.A.F.R.