Himachal Pradesh High Court
Yashwant Kumar Sharma vs State Of Himachal Pradesh & Anr on 26 February, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 998 of 2023 Reserved on: 03.01.2024 .
Date of Decision: 26.02.2024
Yashwant Kumar Sharma ...Petitioner
Versus
State of Himachal Pradesh & Anr. ...Respondents
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
r to
Whether approved for reporting?1 No
For the Petitioner : Mr. Amit Sharma, Advocate.
For Respondent No.1 : Mr. Jitender Sharma, Additional
Advocate General.
For Respondent No.2 : Mr. Vivek Sharma, Advocate, vice Mr.
Varun Chauhan, Advocate.
Rakesh Kainthla, Judge
The present petition is filed for quashing of FIR No.136 of 2023 based on the compromise between the parties. The FIR has been registered for the commission of offences punishable under Sections 341, 323 and 506 of IPC, which are compoundable as per Section 320 of Cr.P.C. without the permission of the Court.
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 26/02/2024 20:30:09 :::CIS 22. Mr. Amit Sharma, learned counsel for the petitioner submitted that the offence punishable under Section 506 of IPC is .
non-compoundable and the present petition is maintainable.
3. Mr. Jitender Sharma, learned Additional Advocate General for the respondent No.1/State submitted that the offences punishable under Section 506 of IPC have been made cognizable and non-bailable as per the notification issued by the State of the offence.
r to Government, however, there is no change in the compoundability
4. Mr. Vivek Sharma, learned counsel for respondent No.2/complainant supported the submission of Mr. Amit Sharma, learned counsel for the petitioner.
5. I have given considerable thought to the submissions at the bar and have gone through the records carefully.
6. Reliance was placed upon the judgment of this Court in State of H.P versus Brij Lal, 2011: HHC: 10063 to submit that the offence punishable under Section 506 of IPC is non-
compoundable. This judgment does not lay down any such law.
This Court noticed the notifications issued by the State Government and held that the offence punishable under Section ::: Downloaded on - 26/02/2024 20:30:09 :::CIS 3 506 of IPC is cognizable and non-compoundable in view of the notifications dated 09.03.1978 and 06.09.1980. Nothing was said .
about the compoundability of the offence.
7. Section 320 of Cr.P.C. deals with the offences, which can be compounded. Section 506 of IPC has been mentioned in the table under Section 320 (1), hence, the offence punishable under Section 506 of IPCis compoundable and the submission that the
8. to offence is non-compoundable is not acceptable.
It was held in Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551: 1978 SCC (Cri) 10 that inherent power should not be exercised when a specific remedy exists. It was observed:
At the outset the following principles may be noticed in relation to the exercise of the inherent power of the High Court which have been followed ordinarily and generally, almost invariably, barring a few exceptions:
"(1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;
(2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;
(3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code."
9. It was laid down by the Full Bench of Delhi High Court in Gopal Dassvs State AIR 1978 Del138, that the power under Section 482 of Cr.P.C. is vested in the Court to make such order as may be ::: Downloaded on - 26/02/2024 20:30:09 :::CIS 4 necessary to give effect to any order under the Code, prevent abuse of the process of any Court or otherwise to secure the ends .
of justice. This power cannot be exercised when a specific remedy is available under the other provisions of the Code. It was observed:-
"8. In order to determine the question under consideration as to what is the scope of the inherent powers of the High Court becomes relevant. The inherent powers of the High Court inhere in it because of its being at the apex of the judicial set-up in a State. The inherent powers of the High Court, preserved by section 482 of the Code, are to be exercised in making orders as may be necessary to give effect to any order under the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Section 482 envisages that nothing in the Code shall be deemed to limit or affect the inherent powers of the High Court exercised by it with the object of achieving the above said three results. It is for this reason that section 482 does not prescribe the contours of the inherent powers of the High Court which are wide enough to be exercised in suitable cases to afford relief to an aggrieved party. While exercising inherent powers it has to be borne in mind that this power cannot be exercised in regard to matters specifically covered by the other provisions of the Code.
(See R.P. Kapur v. State of Punjab, AIR 1960 S.C. 866) (1). This principle of law had been reiterated succinctly by the Supreme Court recently in Palanippa Gounder v. The State of Tamil Nadu, (1977) 2 SCC 634: AIR 1977 S.C. 1323 (2) therein examining the scope of section 482 it was observed that a provision which saves the inherent powers of a Court cannot override any express provision in the statute which saves that power. Putting it in another form the Court observed that if there is an express provision in a statute ::: Downloaded on - 26/02/2024 20:30:09 :::CIS 5 governing a particular subject there is no scope for invoking or exercising the inherent powers of the Court because the Court ought to apply the provisions of the statute which are made advisedly to govern the particular subject matter." (Emphasis .
supplied)
10. It was held in Arun Shankar Shukla v. State of U.P., (1999) 6 SCC 146: 1999 SCC (Cri) 1076: 1999 SCC OnLine SC 647 that power under Section 482 of Cr.P.C. is extraordinary and should not be exercised when specific remedy has been provided under the Code. It was observed:
"2. It appears that unfortunately the High Court by exercising its inherent jurisdiction under Section 482 of the Criminal Procedure Code (for short "the Code") has prevented the flow of justice on the alleged contention of the convicted accused that it was polluted by the so-called misconduct of the judicial officer. It is true that under Section 482 of the Code, the High Court has inherent powers to make such orders as may be necessary to give effect to any order under the Code or to prevent the abuse of process of any court or otherwise to secure the ends of justice. But the expressions "abuse of the process of law" or "to secure the ends of justice" do not confer unlimited jurisdiction on the High Court and the alleged abuse of the process of law or the ends of justice could only be secured in accordance with law including procedural law and not otherwise. Further, inherent powers are in the nature of extraordinary powers to be used sparingly for achieving the object mentioned in Section 482 of the Code in cases where there is no express provision empowering the High Court to achieve the said object. It is well-nigh settled that inherent power is not to be invoked in respect of any matter covered by specific provisions of the Code or if its exercise would infringe any specific provision of the Code. In the present case, the High Court overlooked the ::: Downloaded on - 26/02/2024 20:30:09 :::CIS 6 procedural law which empowered the convicted accused to prefer a statutory appeal against conviction of the offence. The High Court has intervened at an uncalled for stage and soft-pedalled the course of justice at a very crucial stage of .
the trial.
xxxxx
9. In our view, the order passed by the High Court entertaining the petition of the convicted accused under Section 482 of the Code is, on the face of it, illegal, erroneous and to say the least, unfortunate. It was known to the High Court that the trial court passed proceedings to the effect that final judgment and order convicting the accused were pronounced by the trial court. It was also recorded by the trial court that as the accused were absent, the Court had issued non-bailable warrants. In such a situation, instead of directing the accused to remain present before the Court for resorting to the steps contemplated by the law for passing the sentence, the High Court has stayed further proceedings including the operation of the non-bailable warrants issued by the trial court. It is disquieting that the High Court has overlooked the important legal aspect that the accused have a right of appeal against the order of conviction purported to have been passed by the trial court. In such circumstances, the High Court ought not to have entertained a petition under Section 482 of the Code and stonewalled the very efficacious alternative remedy of appeal as provided in the Code. Merely because the accused made certain allegations against the trial Judge the substantive law cannot be bypassed.
11. It was held by the Hon'ble Supreme Court in Hamida v.
Rashid, (2008) 1 SCC 474, that the inherent power under Section 482 of Cr.P.C. is to be exercised sparingly and should not be exercised when an alternative remedy is available. It was observed:::: Downloaded on - 26/02/2024 20:30:09 :::CIS 7
"7. It is a well-established principle that inherent power conferred on the High Courts under Section 482 CrPC has to be exercised sparingly with circumspection and in rare cases and that too to correct patent illegalities or when .
some miscarriage of justice is done. The content and scope of power under Section 482 CrPC were examined in considerable detail in Madhu Limaye v. State of Maharashtra [(1977) 4 SCC 551: 1978 SCC (Cri) 10: AIR 1978 SC 47] and it was held as under : (SCC p. 555, para 8) The following principles may be stated in relation to the exercise of the inherent power of the High Court:
(1) that the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;
(2) that it should be exercised very sparingly to prevent abuse of process of any court or otherwise to secure the ends of justice;
(3) that it should not be exercised as against the express bar of law engrafted in any other provision of the Code.
8. In State v. Navjot Sandhu [(2003) 6 SCC 641: 2003 SCC (Cri) 1545] after a review of a large number of earlier decisions, it was held as under : (SCC p. 657, para 29) "29. ... The inherent power is to be used only in cases where there is an abuse of the process of the court or where interference is absolutely necessary for securing the ends of justice. The inherent power must be exercised very sparingly as cases which require interference would be few and far between. The most common case where inherent jurisdiction is generally exercised is where criminal proceedings are required to be quashed because they are initiated illegally, vexatiously or without jurisdiction. Most of the cases set out hereinabove fall in this category. It must be remembered that the inherent power is not to be resorted to if there is a specific provision in the Code or any other enactment for redress of the grievance of ::: Downloaded on - 26/02/2024 20:30:09 :::CIS 8 the aggrieved party. This power should not be exercised against an express bar of law engrafted in any other provision of the Criminal Procedure Code.
This power cannot be exercised as against an express .
bar in some other enactment."
9. In Arun Shankar Shukla v. State of U.P. [(1999) 6 SCC 146:
1999 SCC (Cri) 1076] the High Court had entertained a petition under Section 482 CrPC after an order of conviction had been passed by the Sessions Judge and before the sentence had been awarded and further proceedings in the case had been stayed. In appeal, this Court set aside the order of the High Court after reiterating the principle that it is well settled that inherent power is not to be invoked in respect of any matter covered by specific provisions of the Code or if its exercise would infringe any specific provision of the Code. It was further observed that the High Court overlooked the procedural law which empowered the convicted accused to prefer a statutory appeal against conviction of the offence and intervened at an uncalled for stage and soft-pedalled the course of justice at a very crucial stage of the trial. The order of the High Court was accordingly set aside on the ground that a petition under Section 482 CrPC could not have been entertained as the accused had an alternative remedy of an appeal as provided in the Code. It is not necessary to burden this judgment with other decisions of this Court as the consistent view throughout has been that a petition under Section 482 CrPC cannot be entertained if there is any other specific provision in the Code of Criminal Procedure for redress of the grievance of the aggrieved party.
10. In the case at hand, the respondents-accused could apply for bail afresh after the offence had been converted into one under Section 304 IPC. They deliberately did not do so and filed a petition under Section 482 CrPC in order to circumvent the procedure whereunder they would have been required to surrender as the bail application could be entertained and heard only if the accused were in custody. It is important to note that no order adverse to the ::: Downloaded on - 26/02/2024 20:30:09 :::CIS 9 respondents-accused had been passed by any court nor was there any miscarriage of justice or any illegality. In such circumstances, the High Court committed a manifest error of law in entertaining a petition under Section 482 CrPC and .
issuing a direction to the subordinate court to accept the sureties and bail bonds for the offence under Section 304 IPC. The effect of the order passed by the High Court is that the accused after getting bail in an offence under Sections 324, 352 and 506 IPC on the very day on which they were taken into custody, got an order of bail in their favour even after the injured had succumbed to his injuries and the case had been converted into one under Section 304 IPC without any court examining the case on merits, as it stood after conversion of the offence. The procedure laid down for the grant of bail under Section 439 CrPC, though available to the respondents-accused, having not been availed of, the exercise of power by the High Court under Section 482 CrPC is clearly illegal and the impugned order passed by it has to be set aside." (Emphasis supplied)
12. Similarly, it was held in B.S. Joshi vs. State of Haryana (2003) 4 SCC 675, that the High Court can quash the F.I.R. in non-
compoundable offences based on compromise suggesting that the power under Section 482 Cr.P.C. is not to be exercised in respect offences, which are compoundable under Section 320 of Cr.P.C.
except in exceptional cases.
13. It was submitted that when the petition was filed, the challan was not presented before the Court and this Court can exercise the jurisdiction under Section 482 of Cr.P.C. This submission is not acceptable. The power under Section 482 of ::: Downloaded on - 26/02/2024 20:30:09 :::CIS 10 Cr.P.C. is an extraordinary power, which is to be exercised sparingly and not in routine. Merely because, the parties chose to .
rush to the High Court immediately after the registration of the FIR, when the charge sheet has not been filed will not justify the exercise of power under Section 482 Cr. P.C., when the offences are compoundable. It is open for the parties to wait for the filing of the charge sheet and get the offence compounded. Even otherwise, if no charge sheet is filed, it is difficult to see how the party can be aggrieved. Thus, this submission will not help the petitioner.
14. Sections 341, 323, and 506 of IPC are compoundable offences without the permission of the Court under Section 320(1) of Cr.P.C. Therefore, it cannot be said that permission of the Court is required, which is not likely to be granted. Thus, there exists no special reason to exercise the power vested in this Court under Section 482 of Cr.P.C.
15. Therefore, there is no reason to exercise extraordinary power under Section 482 of Cr.P.C. in the present case, when the alternative remedy is available with the petitioner. Hence, the present petition fails and the same is dismissed.
::: Downloaded on - 26/02/2024 20:30:09 :::CIS 1116. The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, .
whatsoever, on the merits of the case.
(Rakesh Kainthla) Judge 26th February, 2024 (Saurav Pathania) ::: Downloaded on - 26/02/2024 20:30:09 :::CIS