Madras High Court
Mohamed Abubucker Sithick vs The State Represented By on 23 December, 2011
Author: V.Periya Karuppiah
Bench: V.Periya Karuppiah
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23/12/2011 CORAM THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Crl.O.P.(MD).No.16737 of 2011 Crl.O.P.(MD).No. 16827 of 2011 and Crl.O.P.(MD).No.16828 of 2011 1.Mohamed Abubucker Sithick 2.Kili @ Syed Ali 3.Jabbar 4.Taylor Kani @ Nagoor Kani 5.Pattani 6.Sheik Mydeen 7.Jinna 8.Asan Kani @ Asan Mydeen 9.Shajahan 10.Kaja Mohideen 11.Sadam Hussain 12.Sheik @ Sheik Mohamed @ Kavuttai ...Petitioners Vs 1.The State represented by The Deputy Superintendent of Police, Tenkasi Sub Division, Tirunelveli District Crime No.77 of 2010 Registered at Atchanpudur Police Station, Tirunelveli District. 2.Mariappan ...Respondents PRAYER Petition filed under Section 482 of the Code of Criminal Procedure, to call for the entire records pertaining to the case in S.C.No.36 of 2010 pending on the file of the II Additional District and Sessions Judge (PCR Court), Tirunelveli, Tirunelveli District and quash the same. Crl.O.P.(MD) No.16827 of 2011: 1.Pandu @ Pandaram 2.Kuttiyan 3.Mariappan 4.Krishnamoorthy 5.Mahendran 6.Paramasivan 7.Sangili 8.Thangam S/o.Maruthan 9.Thangam S/0.Subbiah 10.Kanagaraj ...Petitioners Vs 1.The State represented by The Deputy Superintendent of Police, Tenkasi Sub Division, Tirunelveli District Crime No.78 of 2010 Registered at Atchanpudur Police Station, Tirunelveli District. 2.Mohamed Abubucker Sithick 3.Kaja Mohideen ...Respondents PRAYER Petition filed under Section 482 of the Code of Criminal Procedure, to call for the entire records pertaining to the case in S.C.No.325 of 2011 pending on the file of the Assistant Sessions Judge, Tenkasi, Tirunelveli District and quash the same. Crl.O.P.(MD) No.16828 of 2011 Patchaiyapan ...Petitioner Vs 1.The State represented by The Deputy Superintendent of Police, Tenkasi Sub Division, Tirunelveli District Crime No.78 of 2010 Registered at Atchanpudur Police Station, Tirunelveli District. 2.Mohamed Abubucker Sithick 3.Kaja Mohideen ...Respondents PRAYER Petition filed under Section 482 of the Code of Criminal Procedure, to call for the entire records pertaining to the case in J.C.No.264 of 2011 pending before the Juvenile Justice Board, Tirunelveli, Tirunelveli District and quash the same. !For Petitioners in Crl.O.P.Nos.16737 of 2011 ... Mr.R.Anand For Petitioners in Crl.O.P.Nos.16827 and 16828 of 21011 ... Mr.P.Gunasekaran ^For 1st Respondents in all petitions ... Mr.P.Kannithevan Government Advocate (Crl. Side) :COMMON ORDER
The petition in Crl.O.P.(MD) No.16737 of 2011 has been filed by the petitioners, who are the accused in crime No.77 of 2010 of the 1st respondent police, seeking to quash the proceedings in S.C.No.36 of 2010 pending on the file of the learned Additional District and Sessions Judge (PCR Court), Tirunelveli, Tirunelveli District, which was taken on file on the basis of the charge sheet filed in the said crime number.
2.The petition in Crl.O.P.(MD) No.16827 of 2011 has been filed by the petitioner/Accused Nos.1 to 10, seeking to quash the charge sheet filed in crime No.78 of 2010 of the 1st respondent police in the Sessions Case No.325 of 2011, pending before the learned Assistant Sessions Judge, Tenkasi, Tirunelveli District, for the offences punishable under Sections 147, 148, 294(b), 323, 324 and 307 I.P.C.
3.The petition in Crl.O.P.(MD) No.16828 of 2011 has been filed by the petitioner/Accused, seeking to quash the proceedings in J.C.No.264 of 2011, taken on file by the Juvenile Justice Board, Tirunelveli, on the charge sheet filed against the petitioner in crime No.78 of 2010 of the respondent police, for the offences punishable under Sections 147, 148, 294(b), 323, 324 and 307 I.P.C.
4.The learned counsel appearing for the petitioners in Crl.O.P.(MD) Nos.16827 and 16828 of 2011 would submit in his argument that the case was originally registered by the Achanputhur Police Station in crime No.78 of 2010 for the offence under Section 147, 148, 294(b), 323, 324 and 307 I.P.C. against the petitioner/accused in Crl.O.P.(MD) Nos.16827 of 2011 and 16828 of 2011 and the investigation was done by the said police and since one of the accused was a juvenile on the date of offence, separate charge sheets have been filed and the charge sheet filed against the petitioners in Crl.O.P.(MD) No.16827 of 2011 has been taken on file by the learned Judicial Magistrate concerned and thereafter, it was committed to Sessions Court and in turn, the case was taken cognizance by the learned Additional Sessions Judge, Tirunelveli and it was transferred to the Assistant Sessions Judge, Tenkasi, for disposal in accordance with law in S.C.No.325 of 2011. He would further submit that the case against the juvenile accused was taken on file by the Juvenile Justice Board in J.C.No.264 of 2011 and it is pending for disposal.
5. Heard the learned respective counsel appearing for the petitioners and the learned Government Advocate (criminal side) appearing for the State.
6. The learned counsel appearing for the petitioner in Crl.O.P.(MD) No.16737 of 2011 would submit in his argument that the case was originally registered by the Achanputhur Police Station in crime No.77 of 2010 for the offence under Section 147, 148, 294(b), 323, 324, 307 I.P.C. and 3(1)(x) of the Scheduled Cases/Scheduled Tribes (Prevention of Attrocities) Act, against the petitioner and the investigation was done by the said police and the charge sheet has been filed and the same has been taken on file by the learned Judicial Magistrate concerned and thereafter, it was committed to Sessions Court and in turn, the case was taken cognizance by the learned II Additional District and Sessions (PCR), Tirunelveli for disposal in accordance with law in S.C.No.36 of 2010.
7. He would further submit in his argument that the defacto complainants and the injured persons in those occurrences have compromised their disputes on the advice of the elders and therefore, the offences against the petitioners/accused persons will not be established before the Court of law and therefore, they have to be quashed. He would also submit in his argument that even though the major offence against the petitioners in Crl.O.P.(MD) NOs.16827 and 16828 of 2011, is under Section 307 I.P.C., and the manor offence against the petitioners in Crl.O.P.(MD) No.16737 of 2011, is under Section 3(1)(X) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, which are non compoundable offence, which have not been enumerated under Section 320 Cr.P.C., may be ordered to be quashed, since the said witnesses, who are to support the prosecution case will not be established the case, since they compromise the dispute. Therefore, there is no purpose of continuing the trial and if ordered to be continued, it would be an empty formality. They would cite a judgment of the Honourable Apex Court, reported in (2008) 3 Supreme Court Cases (Cri) 858 to the principle that a non compoundable offence can be compromised in between parties and the High Court can quash the proceedings on the facts and circumstances of the case.
8. He would also refer to a judgment of Hon'ble Apex Court reported in 2003 SCC (Cri) 848 between B.S.Joshi and others Vs. State of Haryana and another for the same principle. He would further submit in his argument that the latest judgment of the Hon'ble Apex Court, which hold the field is a judgement made in C.A.No.2094 of 2011 dated 14.11.2011 in between Shiji @ Pappu and others Vs. Radhika and another for the principle that a non compoundable offence may be ordered to be quashed by the High Court. He would also present a memorandum of compromise in between parties, in support of his argument. Therefore, he would request the Court to quash the proceedings.
9. The learned Government Advocate (criminal side) would submit in his argument that no doubt the parties have compromised the disputes in between the parties, but, the major offences charged against them is under Section 307 I.P.C. and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, which are triable by Sessions Court and the judgment of the Hon'ble Apex Court cited by the learned counsel appearing for the petitioners would refer to the economic offences, which are not classified as compoundable offences and there are lot of different between those offences as well as the present offences under Section 307 I.P.C. and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. He would therefore, request the Court to pass suitable orders in the facts and circumstances of the case.
10. I have given anxious consideration to the arguments submitted on both sides.
11. The petitioners in all the petitions and the defacto complainants and the injured persons were present before the Court. They have admitted that the dispute in between the parties were compromised on the advice of the elders. They have also admitted the memorandum of compromise as executed by them. Therefore, I have no hesitation to record the truth and the genuineness of the compromise entered into between the parties.
12. The point for consideration is as to whether the offences charged against the petitioners are liable to be quashed on the foot of the compromise reached in between the parties. The offences charges against the petitioners in both the petitions in Crl.O.P.(MD) Nos.16827 and 16828 of 2011 of Achanputhur Police Station, are under Sections 147, 148, 294(b), 323, 324, 307 read with 34 I.P.C, wherein, the offences except under Section 307 I.P.C. read with 34 I.PC., all other offences are compoundable in nature. Similarly, the offences charged against the petitioners in Crl.O.P.(MD) No.16737 of 2011 are under Sections 147, 148, 294(b), 323, 324, 307 I.P.C. and section 3 (1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, wherein except the offences under Sections 307 I.P.C. and Section 3 (1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, all other offences are compoundable in nature. These offences under section 307 I.P.C. And Section 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act are not compoundable and they are not covered under Section 320 Cr.P.C.
13. The Hon'ble Supreme Court of India in B.S.JOSHI V. STATE OF HARYANA reported in AIR 2003 SC 1386 has held that, "The decision of Supreme Court in Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47 : 1978 Cri LJ 165 does not lay down any general proposition limiting power of quashing the criminal proceedings or F.I.R. Or complaint as vested in S.482 or extraordinary power under Article 226 of the Constitution of India. Therefore, if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, Section 320 would not be a bar to the exercise of power of quashing. It is, however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power".
14. In the same decision, the Apex Court also held that in matrimonial matters, it is the duty of the Court to encourage genuine settlement of disputes. It is also observed by the Apex Court.
"14. .... the hyper-technical view would be counter productive and would act against interest of women and against the object for which this provision was added.
There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of chapter XXA of Indian Penal Code."
15. It is pertinent to note that the Larger Bench of the Punjab and Haryana High Court in Kulwinder Singh and others v. State of Punjab and another, 2007(4) CTC 769 has held that the principle laid down by the Hon'ble Apex Court in B.S.Joshi and others v. State of Haryana and another (2003 SCC (Crl) 848), is not only applicable to the matrimonial offences, but also applicable to other non-compoundable offences and held as follows:
"21. The power under Section 482 of the Cr.P.C. cannot be a hostage to one class or category of cases. That would be a complete mis-construction of the intent of the Legislature, who placed its utmost faith in the inherent power of the High Court to break free the shackle of other provisions of the Code to give effect to any order under it or to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. The wide amplitude of this provision of law cannot be diminished by any myopic interpretation and any straight jacket prescription. Shri R.S.Cheema, learned Senior Advocate, who assisted the Bench as Amicus Curiae, highlighted the inadequacies of the criminal justice system in order to propound and promote the principle that under Section 482 of the Cr.P.C., the High Court can effectively exercise its power in an appropriate case and intervene to quash an F.I.R. even when the case discloses a non-compoundable offence and where the parties have voluntarily entered into a compromise....
24. The compromise, in a modern society, is the sine qua non of harmony and orderly behaviour. It is the soul of justice and if the power under section 482 of the Cr.P.C. is used to enhance such a compromise which, in turn, enhances the social amity and reduces friction, then it truly is "finest hour of justice". Disputes which have their genesis in a matrimonial discord, landlord- tenant matters, commercial transactions and other such matters can safely be dealt with by the Court by exercising its powers under Section 482 of the Cr.P.C. in the event of a compromise, but this is not to say that the power is limited to such cases. There can never be any such rigid rule to prescribe the exercise of such power, especially in the absence of any premonitions to forecast and predict eventualities which the cause of justice may throw up during the course of a litigation.
25. ... Further, the same cannot be limited to matrimonial cases alone and the Court has the wide power to quash the proceedings even in non-compoundable offences notwithstanding the bar under Section 320 of the Cr.P.C. in order to prevent the abuse of law and to secure the ends of justice. The power under Section 482 of the Cr.P.C. is to be exercised ex-debito Justitiate to prevent an abuse of process of Court. There can neither be an exhaustive list nor the defined para-meters to enable a High Court to invoke or exercise inherent powers. It will always depend upon the fact and circumstances of each case. The power under Section 482 of the Cr.P.C. has no limits. However, the High Court will exercise it sparingly and with utmost care and caution. The exercise of power has to be with circumspection and restraint. The Court is a vital and an extraordinary effective instrument to maintain and control social order. The Courts play role of paramount importance in achieving peace, harmony and ever- lasting congeniality in society. Resolution of a dispute by way of compromise between two warring groups, therefore, should attract the immediate and prompt attention of a Court which should endeavour to give full effect to the same unless such compromise is abhorrent to lawful composition of the society or would promote savagery."
16. In a latest decision in Nikhil Merchant v. Central Bureau of Investigation and Another reported in JT 2008 (9) SC 192, the Hon'ble Apex Court has held as follows:
"22. Despite the ingredients and the factual content of an offence of cheating punishable under Section 420 IPC, the same has been made compoundable under sub-section (2) of Section 320 Cr.P.C. with the leave of the Court. Of course, forgery has not been included as one of the compoundable offences, but it is in such cases that the principle enunciated in B.S.Joshi's case (supra) becomes relevant.
23. In the instant case, the disputes between the Company and the Bank have been set at rest on the basis of the compromise arrived at by them whereunder the dues of the Bank have been cleared and the Bank does not appear to have any further claim against the Company. What, however, remains is the fact that certain documents were alleged to have been created by the appellant herein in order to avail of credit facilities beyond the limit to which the Company was entitled. The dispute involved herein has overtones of a civil dispute with certain criminal facets. The question which is required to be answered in this case in whether the power which independently lies with this Court to quash the criminal proceedings pursuant to the compromise arrived at, should at all be exercised?
24. On an overall view of the facts as indicated herein above and keeping in mind the decision of this Court in B.S.Joshi's case (supra) and the compromise arrived at between the Company and the Bank as also clause 11 of the consent terms filed in the suit filed by the Bank, we are satisfied that this is a fit case where technicality should not be allowed to stand in the way in the quashing of the criminal proceedings, since, in our view, the continuance of the same after the compromise arrived at between the parties would be a futile exercise."
17. It has also been discussed in the judgment of the Hon'ble Apex Court made in Crl.A.2094 of 2011 between Shiji @ Pappu and others Vs. Radhika and another, as follows:
"14.Coming to the case at hand we are of the view that the incident in question had its genesis in a dispute relating to the access to the two plots which are adjacent to each other. It was not a case of broad day light robbery for gain. It was a case which has its origin in the civil dispute between the parties, which dispute has, it appears, been resolved by them. That being so, continuance of the prosecution where the complainant is not ready to support the allegations which are now described by her as arising out of some "misunderstanding and misconception" will be futile exercise that will serve no purpose. It is noteworthy that the two alleged eye witnesses, who are closely related to the complainant, are also no longer supportive of the prosecution version. The continuance of the proceedings is thus nothing but an empty formality. Section 482 Cr.P.C. could, in such circumstances, be justifiably invoked by the High Court to prevent abuse of the process of law and thereby preventing a wasteful exercise by the Courts below."
18. According to the principles laid down by the aforesaid judgments of the Hon'ble Apex Court, we could understand that the criminal proceedings launched in between the parties can be quashed on the basis of compromise reached in between parties and the High Courts should have carefully applied the powers conferred under Section 482 Cr.P.C. to the deserved cases only.
19. In the aforesaid judgments of the Hon'ble Apex Court, the offences under Sections 498(A) and 420 I.P.C. as well as 394 I.P.C. were dealt with and the gravity of the offence of 394 I.P.C. was also found lesser and therefore, it was permitted to be quashed.
20. However, in the judgment reported in (2008) 16 SCC 1 between Manoj Sharma Vs. State and others, the judgment passed B.S.Joshi's cases reported in (2003) 4 SCC 675 including the Nikhil Merchant's case were dealt with and the offence under Sections 420, 484, 471, 341 read with 120(B) I.P.C. were considered for quashment. It has been pointed out by the Hon'ble Apex Court in Para 27 of the judgment, which would be thus:
"27.There can be no doubt that a case under Section 302 I.P.C. or other serious offences like those under Sections 395, 307 or 304-B cannot be compounded and hence proceedings in those provisions cannot be quashed by the High Court in exercise of its power under Section 482 Cr.P.C. or in writ jurisdiction on the basis of compromise. However, in some other cases (like those akin to a civil nature), the proceedings can be quashed by the High Court if the parties have come to an amicable settlement even though the provisions are not compoundable. Where a line is to be drawn will have to be decided in some later decisions of thus Court, preferably by a larger Bench (so as to make it more authoritative). Some guidelines will have to be evolved in this connection and the matter cannot be left at the sole unguided discretion of Judges, otherwise there may be conflicting decisions and judicial anarchy. A judicial discretion has to be exercised on some objective guiding principles and criteria, and not on the whims and fancies of individual Judges. Discretion, after all, cannot be the Chancellor's foot."
21. When we apply the principles laid down by the Hon'ble Apex Court, for passing an order of quashment under the power conferred under Section 482 Cr.P.C., the facts and circumstances of each case, has to be considered and the nature of offence has also to be seen even though the offences under Sections 420, 468, 471, 498(A), 392 I.P.C. were ordered to be quashed. As far as this case is concerned, the major offences are 307 read with 34 I.P.C. and 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, which are triable by Sessions Court. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is a social legislation in which a compromise will not make the Court to quash the proceedings, since the trial of the offence will only render justice to parties. Further more, the gravity of the offence is more than that of other offences referred supra.
22. The arguments advanced by the learned counsel appearing for the petitioners is that the injured has sustained less injury, but, the implication of 307 I.P.C. has been done by the police cannot hold water even the injured or victim has come forward with a compromise and request the Court to exercise its jurisdiction to quash the offences like 307 and 302 I.P.C. Therefore, I am of the considered view that the charge sheet filed against the petitioners, which were taken on file by the Sessions Court as well as the Juvenile Justice Board and the II Additional District and Sessions Judge and the proceedings cannot be quashed as sought for by the petitioners.
23. At this stage, the learned counsel appearing for the petitioners would submit that all the cases have arisen out of a single incident and therefore, the cases in S.C.325 of 2011 and J.C.No.264 of 2011 pending before the learned Assistant Sessions Judge, Tenkasi, Juvenile Justice Board, Tirunelveli respectively may be transferred to the file of the learned II Additional District and Sessions Judge, Tirunelveli, for joint trial or separate simultaneous trial along with S.C.No.36 of 2010 as per law. No doubt, the case in S.C.No.325 of 2011 and J.C.No.264 of 2011 are the counter case of S.C.No.36 of 2010 and all the cases have to be tried together. Therefore, the said cases in S.C.No.325 of 2011 on the file of the Assistant Sessions Judge, Tenkasi and in J.C.No.264 of 2011 on the file of Juvenile Justice Board , Tirunelveli are necessarily to be transferred to the file of the learned II Additional District and Sessions Judge, Tirunelveli, under the power given to the Sessions Court in Section 6(2) of the Juvenile Justice (Care and Protection) Act. Therefore, I am inclined to order transfer of S.C.No.325 of 2011 pending before the learned Assistant sessions Judge, Tenkasi, Tirunelveli District and J.C.No.264 of 2011 pending before the Juvenile Justice Board, Tirunelveli to the file of the II Additional District and Sessions Judge (PCR Court), Tirunelveli for being tried simultaneously along with S.C.No.36 of 2010 pending on his file. The learned II Additional District and Judge, (PCR Court), Tirunelveli is directed to commence the trial of both the cases immediately on receipt of the records from the transferee Court and Juvenile Justice Board, Tirunelveli and to complete the trial and dispose of the case within a period of one month thereafter.
24. With the aforesaid observations, the quashment as sought for by the petitioners in all the three petitions are negatived and all the petitions are accordingly, dismissed.
arul To
1.The Deputy Superintendent of Police, Tenkasi Sub Division, Tirunelveli District.
2.The Additional District and Sessions Judge (PCR Court), Tirunelveli, Tirunelveli District,
3.The Assistant Sessions Judge, Tenkasi.
4.The Juvenile Justice Board, Tirunelveli.
5.The Additional Public Prosecutor Madurai Bench of Madras High Court Madurai.