Madras High Court
P.Venugopal Reddy vs State
Author: T.Mathivanan
Bench: T. Mathivanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED.27.03.2012 CORAM: THE HONOURABLE MR.JUSTICE T. MATHIVANAN Crl.O.P.No.6439 of 2012 P.Venugopal Reddy ... Petitioner Vs. State rep.by its 1.The Commissioner of Police Greater Chennai, Egmore, Chennai 2.The Inspector of Police Central Crime Branch, Teynampet Chennai 3.The Assistant Commissioner of Police Anti Land Grabbing Cell-1, Central Crime Branch, Greater Chennai Police Egmore, Chennai 4.N.Seshadri Kumar 5.M.K.Stalin 6.Udainidhi Stalin 7.Raja Sankar 8.Subba Reddy @ Ceebros Subba Reddy 9.Srinivas ... Respondents Prayer: Petition is filed under Section 482 Cr.P.C, praying to call for the records in Crime No.568 of 2011 registered by the respondents 1 to 3 and quash the same. For Petitioner : Mr.B.Sriramulu, senior counsel for Mr.D.Kiraharaj For Respondents : Mr.I.Subramanian Public Prosecutor for R1 to R3 Assisted by Mr.C.Iyyapparaj Government Advocate (Crl.Side) Mr.Yashod Vardhar, senior counsel for Mr.M.Murugan for R4 Mr.P.Kumaresan for R5, R6 and R9 Mr.J.Suresh for R7 No appearance for R8 O R D E R
Invoking the inherent jurisdiction of this Court under Section 482 Cr.P.C., this petition is filed by the petitioner seeking the relief of quashing the criminal proceedings relating to the case in Crime No.568 of 2011.
2. It is manifested from the records that based on the complaint lodged by the 4th respondent/complainant, the 3rd respondent has registered a case in Crime No.568 of 2011 against the petitioner as well as the respondents 5 to 9 alleging that they have committed an offence punishable under Sections 386, 387, 451, 506(i) and 120(B) I.P.C.,
3. The petitioner's company viz.M/s.Pioneer Builders Ltd., had purchased the property admeasuring 2.5 grounds together with the superstructure admeasuring 4433 sq.ft., bearing Corporation Door No.23 (Old No.8A), Chittranjan Road, Teynampet, Chennai from the 4th respondent/complainant Mr.N.Sheshadri Kumar, son of Late.N.Narayanswamy HUF consisting of himself his son Mr.Siddharth Kumar and daughter Mrs.Sowmiya Kr.Arjun by virtue of a registered sale deed dated 19.08.2010 for a valid sale consideration of Rs.5,54,50,000/-, which was paid on 10.08.2010 by way of demand draft bearing No.305035 drawn on Bank of Baroda, Jubilee Hills Branch, Hyderabad. Utilizing the sale consideration, the 4th respondent/complainant had purchased two properties at Bishop Gardens in Chennai.
4. It appears that on 29.11.2011 ie.after passing of more than one year three months, the fourth respondent/complainant had lodged a complaint before the first respondent and a case in Crime No.568 of 2011 also came to be registered on 30.11.2011 on the file of the Central Crime Branch, Greater Chennai Police Station for the offences aforestated.
5. In the said complaint, the fourth respondent/complainant had alleged that he was threatened by the respondents 7 to 9 (A4, A5 and A6) to sell his property to the second accused, who is the sixth respondent herein.
6. It is also alleged that the petitioner herein, who has been arrayed as the first accused in the above said case, to be benami for the second accused. The petitioner in paragraph No.4(ii) has stated that the fourth respondent/complainant is a beneficial owner, who received the entire money under the registered sale deed and also utilized the money for purchasing two properties for his HUF. He has also stated that after receiving the entire sale consideration and after utilizing the same for purchasing two valuable properties elsewhere and after a lapse of one year three months, he has come forward with this complaint.
7. When the petition came up for hearing, the fourth respondent/complainant has filed a counter wherein at paragraph Nos.2 & 3, he has stated as under:
2......... that at the intervention of common friends and well-wishers this respondent, on his behalf and on behalf of his HUF, son and daughter and the petitioner herein have resolved their disputes amicably and reduced the terms of the agreement into writing on 12.02.2012. It is submitted that under this understanding, the petitioner paid this respondent HUF, the sum of Rs.1,75,00,000/- (Rupees one crore and seventy five lakhs only) by way of Demand Draft bearing No.012093 500211014, dated 11.02.2012, drawn on Axis Bank, Service Branch, Chennai towards settlement of all claims of this respondent, his HUF and children, thus this respondent has no more subsisting complaint or grievance of any kind whatsoever against the petitioner and the respondents 5 to 9.
3..........that in view of the amicable settlement of all the issues between the petitioner and this respondent, this respondent, being the defacto complainant, is no more interested to continue his complaint and hereby withdraws his complaint, registered as Crime No.568 of 2011 against all the accused mentioned therein and requests for closure of the case.
8. It is obvious to note here that the fourth respondent/complainant has also tagged the copy of the agreement dated 12.02.2012, wherein at paragraph No.3 of third sheet, it is stated that:
WHEREAS the 2nd party being genuine purchaser, both parties herein have mutually agreed to put an end to this controversy by settling the dispute once and for all. The 2nd party had offered to sell the schedule mentioned property back to the 1st party by attorning the current tenancy. In the alternative, the 2nd party offered to pay the difference in the sale consideration perceived to be inadequate in the minds of the 1st party, so that the 2nd party would be able to enjoy the schedule property as absolute owner without any claim whatsoever by the 1st party or anyone claiming through them. The 1st party elected the 2nd option for his own reasons and agreed to receive an additional sum of Rs.1.75 Crores and does not want to purchase back the schedule property and this is his final decision. In other words the 1st party confirms/declares that the sale made in favour of the 2nd party is genuine, valid and binding upon the 1st party and the 2nd party has acquired clear and marketable title to the schedule property. At the instance of well wishers, the 2nd party has paid the sum of Rs.1,75,00,000/- (Rupees One Crore and Seventy Five Lakhs only) by way of Demand Draft No.012093, dated 11.02.2012, drawn on Axis Bank, Service Branch, Chennai to fully satisfy the 1st party against all the claims present or future and the receipt of the said sum is hereby admitted and acknowledged by the 1st party in full satisfaction of all claims and the 1st party undertakes to file necessary petitions/representation etc., before any authority or court of law to close the aforementioned criminal case in view of this amicable settlement between the parties herein based on the fact that all misunderstandings have been cleared.
9. On the basis of the counter filed by the fourth respondent/complainant and also on the basis of the averments of the agreement produced by him along with his counter, Mr.B.Sriramulu, learned senior counsel appearing for Mr.D.Kiraharaj, learned counsel on record for the petitioner has submitted that since the dispute between the fourth respondent/complainant and the petitioner and other accused persons viz.respondents 5 to 9 has been settled amicably in the presence of friends and well-wishers, the continuation of the criminal proceedings in the case in Crime No.568 of 2011 on the file of the third respondent Police against the petitioner as well as against the respondents 5 to 9 would not serve any purpose and even if the criminal proceedings are allowed to continue, the chances of recording conviction is bleak.
10. In support of his contention, he has placed reliance upon the decision in Shiji alias Pappu and Ors. vs. Radhika and another, reported in AIR 2012 SC 499. In this case, the Division Bench of the Apex Court comprising their Lordships Hon'ble Mr.JUSTICE CYRIAC JOSEPH and the Hon'ble Mr.JUSTICE T.S.THAKUR has held as follows:
It is manifest that simply because an offence is not compoundable under Section 320 I.P.C., is by itself no reason for the High Court to refuse exercise of its power under Section 482 Cr.P.C. That power can in our opinion be exercised in cases where there is no chance of recording a conviction against the accused and the entire exercise of a trial is destined to be an exercise in futility. There is a subtle distinction between compounding of offences by the parties before the trial Court or in appeal on one hand and the exercise of power by the High Court to quash the prosecution under Section 482 Cr.P.C., on the other. While Court trying an accused or hearing an appeal against conviction, may not be competent to permit compounding of an offence based on a settlement arrived at between the parties in cases where the offences are not compoundable under Section 320, the High Court may quash the prosecution even in cases where the offences with which the accused stand charged are non-compoundable. The inherent powers of the High Court under Section 482 Cr.P.C., are not for that purpose controlled by Section 320 Cr.P.C., The plenitude of the power under Section 482 Cr.P.C., by itself, makes it obligatory for the High Court to exercise the same with utmost care and caution.
11. On the other hand, Mr.I.Subramanian, learned Public Prosecutor has strongly objected to quash the criminal proceedings in the case in Crime No.568 of 2011 saying that the mere fact that the fourth respondent/complainant had settled the dispute with the petitioner and also with the remaining accused would not per se absolve the petitioner from the criminal liability and that even after settling the dispute between the parties the criminal liability of the accused persons including the petitioner is still subsisting and therefore the criminal proceedings as against the petitioner could not be quashed.
12. The learned Public Prosecutor has also quoted the decision of the Supreme Court in Gian Singh vs. State of Punjab reported in 2010 (12) SCALE 461 and submitted that the Supreme Court has doubted the correctness of the views expressed in B.S.Joshi, Nikhil Merchant and Manoj Sharma's case and the Bench has also referred those cases to a larger Bench for reconsideration. He has also contended that until the above referred cases are reconsidered and an appropriate decision is taken by a larger Bench, the decision in Shiji alias Pappu and Ors. vs. Radhika and another, reported in AIR 2012 SC 499 could not be held as good law.
13. He has also submitted that as observed by the Division Bench of Supreme Court in Gian Singh vs. State of Punjab reported in 2010 (12) SCALE 461, the Courts cannot amend the statute and must maintain judicial restraint and the Courts should not try to take over the function of the Parliament or executive and the legislature alone can amend Section 320 Cr.P.C.,
14. On the other hand, Mr.B.Sriramulu, learned senior counsel has submitted that the decisions in B.S.Joshi, Nikhil Merchant and Manoj Sharma have not still been overruled by the Apex Court and that in Hansarajsaxena vs. State reported in 2011 4 MLJ (Crl) 1, the learned single Judge of this Court has held that though there is reference pending in Gian Singh's case, the judgments in B.S.Joshi, Nikhil Merchant and Manoj Sharma have not been overruled sofar and that as long as the above Judgments are not overruled by the larger Bench on the reference made in Gian Singh's case, the inherent power of this Court under Section 482 Cr.P.C., could be pressed into service to quash the proceedings on the ground of compromise reached between the parties to the criminal proceedings.
15. On the other hand, Mr.P.Kumaresan, learned counsel for the respondents 5, 6 and 9 has submitted that since the fourth respondent/complainant had settled the dispute with the petitioner as well as the remaining respondents, the proviso to Section 320 Cr.P.C., could not curtail the power of this Court conferred under Section 482 Cr.P.C.,
16. It is obvious to note here that the present case in Crime No.568 of 2011 has been registered against the petitioner as well as the respondents 5 to 9 under Sections 386, 387, 451, 506(ii) and 120(B) I.P.C., Of which, the offences under Sections 451 and 506(ii) I.P.C., do come under the first two columns of the table next following to Section 320(1) Cr.P.C., and therefore, these offences may be compounded by the persons mentioned in the third column of that table.
17. In sofar as the other offences viz., Sections 386, 387 and 120(B) I.P.C., are concerned, they do not come under anyone of the tables specified under Section 320(1) or 320(2) Cr.P.C., and therefore as contemplated under Sub-section (9) to Section 320 Cr.P.C., they shall not be compounded except as provided by this section.
18. Section 320(6) Cr.P.C., envisages that a High Court or Court of Session acting in the exercise of its powers of revision under Section 401 may allow any person to compound any offence, which such person is competent to compound under this Section.
19. It is also quite relevant to note here that Sub-section 9 to Section 320 Cr.P.C., specifically provides that 'no offence shall be compounded except as provided by this Section.' It is thus crystallized that in view of the aforesaid legislative mandate, only the offences which are called by Table 1 or Table 2 provided under Section 320 can be compounded and the rest of the offences punishable under Indian Penal Code cannot be compounded. But, there are several cases where the natural justice demands that the parties should be allowed to compound the cases. For example, Mahesh Chand vs. State, reported in 1988 SC 2111 : 1989 Cr LJ 121. In this case, the offence was under Section 307 I.P.C., which is also non-compoundable but as the parties want to have the offence compounded and requested the Court to grant permission, the Hon'ble Supreme Court after examining the nature of the case and the circumstances under which the offence was committed and observed that the trial Court shall permit the parties to compound the offence.
20. The whole rational behind the concept of compounding the offence is that the law is meant to do justice and not to force the parties for a protracted litigation. When the parties themselves have compromised the dispute, it would be a waste of time in going through a mock trial. This principle is laid down in Kailash Chandra vs. Basanti, reported in (1989) 3 Crimes 676 (Raj).
21. In most of the offences only two persons are directly involved (i)the accused and (ii)the person against whose person or property the offence has been committed. Since the State steps into the shoes of aggrieved person, the criminal offence has been viewed an offence against the State. If the parties in a criminal proceedings viz., the complainant and the accused have been able to come to an understanding that they could settle the dispute by way of compromise there would be little impact on the society if the offence is allowed to be compounded.
22. Section 482 Cr.P.C., deals with saving of inherent powers of High Court. It reads as follows:
Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
23. In the above context, to seek the interference of this Court under this Section, three conditions are to be fulfilled namely:
i. to give effect to an order under Cr.P.C., ii. to prevent an abuse of process of Court, and iii. to otherwise secure the ends of justice.
24. The first sentence of this Section ensures that nothing in this Code shall be deemed to limit or affect the inherent powers of this Court. Amongst the above mentioned three ingredients, the third ingredient viz., to otherwise secure the ends of justice, does have wider amplitude and its plenitude connotes the meaning that the Court's hand should be long enough to subserve the ends of justice. Courts have been constituted to implement the law laid down by the legislators. It is common judicial parlance that while implementing the law, the Courts are required to interpret it. On coming to sub-section (9) to Section 320 Cr.P.C., the question as to whether a non-compoundable offence can be converted as compoundable has been debated for a long time.
25. In Hari Mohan Barman vs. State reported in (2008) 1 SCC 184, the Apex Court has held that what cannot be done directly cannot also be done indirectly. Unfortunately, the impact of Section 320 Cr.P.C., escaped the notice of the legislators although there have been, from time to time, various amendments, with regard to different provisions of the criminal procedure code.
26. In Surendra Nath Mohanty vs. State, reported in (1999) 5 SCC 218, the Apex Court has held that in view of the legislative mandate contained in Section 320, an offence can be compounded only in accordance with the provisions of the said section. That being so, no court can act according to his conscience, not even under Section 482 because inherent jurisdiction cannot be invoked to set at naught the legislative mandate.
27. Prior to that in Madhavrao Jiwajirao Scindia and others vs. Sambhajirao Chandrojirao Angre and others, (1988) 1 SCC 692, the Apex Court has held that It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.
28. In B.S.Joshi vs. State of Haryana, reported in (2003) 4 SCC 675, a question, as to whether the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint for offences which are not compoundable under Section 320 Cr.P.C., was raised for the consideration of the Court. In this case, the Apex Court has also made reference to Pepsi Food Ltd., & Anr. vs. Special Judicial Magistrate & Ors., reported in (1998) 5 SCC 749. In the quoted decision, the Apex Court has made reference to Bhajan Lal's case and observed that the guidelines laid therein as to where the court will exercise jurisdiction under Section 482 of the Code could not be inflexible or laying rigid formulae to be followed by the courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. It is well settled that these powers have no limits. Of course, where there is more power, it becomes necessary to exercise utmost care and caution while invoking such powers.
29. Besides this, the Apex Court has also made reference to State of Karnataka vs. L.Muniswamy & others, reported in (1977) 2 SCC 699. In this case, the Apex Court has held that in the exercise of this wholesome power under Section 482 Cr.P.C., the High Court is entitled to quash proceedings if it comes to the conclusion that ends of justice if so required.
30. Ultimately, the Apex Court has held that in view of the above discussions, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or first information report or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 Cr.P.C.,
31. In Hira Lal Hari Lal Bhagwati vs. C.B.I., New Delhi, AIR 2003 SC 2545 the appellant was facing charges under Sections 420, 120(B) I.P.C., under Chapter IV Finance (No.2) Act (21 of 1998) and under Section 95 of Kar Vivad Samadhan Scheme, 1998. It appears that the dispute was entered into compromise as a qua certificate was obtained under Kar Vivad Samadhan Scheme, 1998 and the customs duty paid by the appellants Gujarat Cancer Society. It also appears that despite acknowledging this fact CBI initiated criminal proceedings under Penal Code against Gujarat Cancer Society on allegations of cheating Government of India in terms of evasion of duty and by concealment of facts obtained customs duty exemption certificate. Under this circumstance, the Apex Court has held in paragraph No.29 as follows:
29.We have carefully gone through the Kar Vivad Samadhan Scheme, 1998 and the certificate issued by the Customs Authorities. In our opinion, the GCS is immuned from any criminal proceedings pursuant to the certificates issued under the said Scheme and the appellants are being prosecuted in their capacity as office bearers of the Gcs. As the Customs duty has already been paid, the Central Government has not suffered any financial loss. Moreover, as per the Kar Vivad Samadhan Scheme, 1998 whoever is granted the benefit under the said Scheme is granted immunity from prosecution from any offence under the Customs Act, 1962 including the offence of evasion of duty. In the circumstances, the complaint filed against the appellants is unsustainable.
32. In Nikhil Merchant vs. Central Bureau of Investigation, reported in (2008) 9 SCC 677, the Hon'ble Supreme Court has held in paragraph No.31 that 31. On an overall view of the facts as indicated hereinabove and keeping in mind the decision of this Court in B.S.Joshi case 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.
33. In Manoj Sharma vs. State and Others, MANU/SC/8122/2008 a question was also arisen as to whether a first information report which was registered for the offences under Sections 420, 468, 471, 341 and 120(B) I.P.C., could be quashed either under Section 482 of the Code of Criminal Procedure Code or under Article 226 of the Constitution of India, when the accused and the complainant have compromised and settled the matter between themselves. This question was considered by the Division Bench comprising their Lordships Hon'ble Mr.JUSTICE ALTAMAS KABIR and Hon'ble Mr.JUSTICE MARKANDEY KATJU. While writing Judgment, His Lordship Hon'ble Mr.JUSTICE ALTAMAS KABIR has answered in the following manner in paragraph No.8:
'8. In our view, the High Court's refusal to exercise its jurisdiction under Article 226 of the Constitution for quashing the criminal proceedings cannot be supported. The First Information Report, which had been lodged by the complainant indicates a dispute between the complainant and the accused which is of a private nature. It is no doubt true that the First Information Report was the basis of the investigation by the Police authorities, but the dispute between the parties remained one of a personal nature. Once the complainant decided not to pursue the matter further, the High Court could have taken a more pragmatic view of the matter. We do not suggest that while exercising its powers under Article 226 of the Constitution the High Court could not have refused to quash the First Information Report, but what we do say is that the matter could have been considered by the High Court with greater pragmatism in the facts of the case. As we have indicated hereinbefore, the exercise of power under Section 482 Cr.P.C., or Article 226 of the Constitution is discretionary to be exercised in the facts of each case. Accordingly, His Lordship has allowed the appeal and quashed the criminal proceedings before the learned Additional Chief Metropolitan Magistrate, Karkardooma Court, Delhi.
34. While endorsing the view of His Lordship Hon'ble Mr.JUSTICE ALTAMAS KABIR in harmonious nature his Lordship Hon'ble Mr.JUSTICE MARKANDEY KATJU has given a concurring Judgment in view of the importance of the issue involved. In Paragraph Nos.17, 18 and 21 His Lordship has observed as follows:
17.Since Section 320 Cr.P.C., has clearly stated which offences are compoundable and which are not, the High Court or even this Court would not ordinarily be justified in doing something indirectly which could not be done directly. Even otherwise, it ordinarily would not be a legitimate exercise of judicial power under Article 226 of the Constitution or under Section 482 Cr.P.C., to direct doing something which the Cr.P.C., has expressly prohibited. Section 320(9) Cr.P.C., expressly states that no offences shall be compounded except as provided by that Section. Hence, in my opinion, it would ordinarily not be a legitimate exercise of judicial power to direct compounding of a non-compoundable offence.
18.However, it has to be pointed out that Section 320 Cr.P.C., cannot be read in isolation. It has to be read along with the other provisions in the Cr.P.C., One such other provision is Section 482 Cr.P.C., which reads:
Saving of inherent power of High Court.- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order of this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.
21.However, in my opinion these judgments cannot be read as a Euclid's formula since it is well settled that judgments of a Court cannot be read mechanically and like a Euclid's theorem vide Dr.Rabir Singh Dalal vs. Chaudhari Devi Lal University 2008(8) JT 621, Bharat Petroleum Corporation Ltd., and another vs. N.R.Vairamani and another, AIR 2004 SC 4778. In rare and exceptional cases a departure can be made from the principle laid down in the decisions referred to in para 20, as observed in B.S.Joshi's case (supra), which has also been followed in other decisions e.g., Nikhil Merchant's case (supra). Even in the judgment of this Court in Divisional Manager Aravalli Golf Club (supra) where emphasis has been laid on judicial restraint it has been mentioned that sometimes judicial activism can be resorted to by the Court where the situation forcefully requires it in the interest of the country or society (vide para 39 of the said Judgment). Judicial activism was rightly resorted to by the U.S.Supreme Court in Brown vs. Board of Education 347 U.S. 482, Miranda vs. Arizona 384 U.S. 436, Roe v. Wade 410 U.S. 113, etc., and by Lord Denning in England in several of his decisions.
35. But, the Apex Court in Sushil Suri vs. Central Bureau of Investigation and another, (2011) 5 SCC 708 has taken a different stand entirely contrary to the view taken in B.S.Joshi and Nikhil Merchant's case (cited supra). In this case, CBI has laid a final report for the offences punishable under Sections 120B, 420, 409, 468 and 471 I.P.C., against one K.B.Suri, Sushil Suri and Kantha Suri, executive directors of M/s.Morpen Laboratories Ltd., before the Chief Metropolitan Magistrate, Delhi alleging that the executive directors of M/s.Morpen Laboratories Ltd., had conspired together and in furtherance of the criminal conspiracy they dishonestly and fraudulently made an application to Punjab and Sind Bank, Connaught Place, New Delhi for hire purchase finance to the tune of Rs.300 lacs by submitting fake and forged purchase orders, invoices and bills relating to supply of machineries and equipments to be installed in their factory/workshop.
36. The Chief Metropolitan Magistrate had taken cognizance of the offence and summoned the accused to stand trial. On being so summoned, the appellant filed a petition under Section 482 Cr.P.C., praying for quashing of the charge sheet mainly on the ground that once the company had repaid the loan to PSB along with interest, no loss was caused to PSB and therefore they had not committed any offence for which charge sheet had been filed. In support of their case, they had also placed reliance upon a decision in Nikhil Merchant vs. Central Bureau of Investigation, reported in 2008 9 SCC 677. The High Court has come to the conclusion that merely because the company and its directors had repaid the loan to PSB, they cannot be exonerated of the offences committed by forging/fabricating the documents with intention of the deferring the document as well as the cheque.
37. It was contended before the Apex Court on the ground that all the dues claimed by PSB having been paid by the debtor/company without demur when the bank had not initiated any action for the recovery of money, the case of the appellant is on a much stronger footing as compared to the case of Nikhil Merchant (supra), wherein this Court had quashed the criminal proceedings initiated against the borrower in view of their compromise with the bank. It was also asserted that full amount having been paid there was no monetary loss to the Bank and therefore the continuation of the criminal proceedings against all the accused, including the appellant would not only be an exercise in futility but an abuse of the process of law as well. As aforestated, the decisions in B.S.Joshi and Nikhil Merchant were called into assistance of the appellant.
38. The Division Bench comprising their Lordships Hon'ble Mr.JUSTICE J.M.PANCHAL and the Hon'ble Mrs.JUSTICE GYAN SUDHA MISRA has not convinced with the decisions of B.S.Joshi and Nikhil Merchant. In sofar as the decision in Nikhil Merchant, their Lordships have held that in our opinion, Nikhil Merchant (supra) does not hold as an absolute proposition of law. Their Lordships have further held that the jurisdiction of this Court under Article 142 of the Constitution of India is not in dispute. Exercise of such power would, however, depend on the facts and circumstances of each case. The High Court, in exercise of its jurisdiction under Section 482 Cr.P.C., and this Court, in terms of Article 142 of the Constitution of India, would not direct quashing of a case involving crime against the society particularly when both the learned Special Judge as also the High Court have found that a prima facie case has been made out against the appellant herein for framing the charge. Ultimately, their Lordships have held that in the final analysis, we hold that merely because the dues of the bank have been paid up, the appellant cannot be exonerated from the criminal liability. Therefore, the charge sheet against him cannot be quashed.
39. After the decision in Sushil Suri (cited supra), the decision in Shiji alias Pappu (cited supra) came to be pronounced on 14.11.2011. Since this decision has also been rendered by a bench of Two Judges of the Hon'ble Supreme Court of India, there may not be any impediment in placing reliance as the entire proceedings of the instant case on hand destined to be an exercise of futility.
40. On coming to the present case on hand, as observed herein above, the fourth respondent/complainant, in his counter has, in an unambiguous language as well as in precise and clear terms, stated that at the intervention of common friends and well-wishers, he, on his behalf and on behalf of HUF, consisting of his son and daughter and the petitioner herein have resolved their disputes amicably and reduced the terms of the agreement into writing on 12.02.2012. He has also admitted that he had received, in terms of understanding, as it is seen from the agreement dated 12.02.2012, a sum of Rs.1,75,00,000/- towards settlement of all claims and as such he has no more subsisting complaint or grievance or any kind whatsoever against the petitioner and the respondents 5 to 9 herein.
41. He has also stated in his counter at paragraph No.3 that in view of the amicable settlement of all the issues with the petitioner he, being the defacto-complainant, is no more interested to continue his complaint and thereby withdraws his complaint registered in Crime No.568 of 2011 against all the accused and he has also requested the Court to close the case.
42. Keeping in view of the submission made on behalf of the fourth respondent/complainant in person and also by his learned counsel and on considering the submissions made on behalf of the petitioner and that of the remaining respondents viz. respondents 5 to 9, this Court is of view that the submissions made on behalf of the petitioner, fourth respondent/complainant and the respondents 5 to 9 may be considered with greater pragmatism as the continuance of criminal proceedings in the case in Crime No.568 of 2011 as against the petitioner and other respondents viz. respondents 5 to 9 is nothing, but an abuse of process of law and waste of valuable time of the Courts below. Therefore, the exercise of power, to invoke the inherent jurisdiction of this Court under Section 482 Cr.P.C., to prevent such abuse, may be of justifiable in nature.
43. Obviously, in Gian Singh vs. State of Punjab reported in 2010 (12) SCALE 461, the Division Bench of the Apex Court headed by His Lordship the Hon'ble Mr.JUSTICE MARKANDEY KATJU has directed that the decisions in B.S.Joshi, Nikhil Merchant and Manoj Sharma be placed before a larger Bench to reconsider its correctness. However, it can safely be considered that until the aforesaid three decisions are reconsidered and overruled by the larger Bench, still its correctness is held good.
44. As rightly observed in Shiji alias Pappu and Ors. vs. Radhika and another, reported in AIR 2012 SC 499, the inherent powers of the High Court under Section 482 Cr.P.C., are not for that purpose controlled by Section 320 Cr.P.C. The plenitude of the power under Section 482 Cr.P.C., by itself, makes it obligatory for the High Court to exercise the same with utmost care and caution, wherein the chances of recording conviction, even they are allowed to be continued, would bleak.
45. Section 320 Cr.P.C., specifies certain offences as compoundable, certain other offences as compoundable with the permission of the Court. Sub-section (9) to Section 320 Cr.P.C., mandates that no offence shall be compounded except as provided by section 320 Cr.P.C., Sub-section (9) to Section 320 Cr.P.C., seems to have possessed with rigidity and inflexibility and it is thus made clear that no offence shall be compounded except as provided by this Section (320 Cr.P.C.,).
46. However, considering the nature and circumstances of appropriate cases, the High courts and the Hon'ble Supreme Court of India in an exhaustive list of myriad kinds of cases have decided that such power could be exercised by the High Courts under Section 482 Cr.P.C., r/w Article 226 and 227 of the Constitution of India to quash criminal proceedings. The scope and ambit of power under Section 482 has been examined by the Supreme Court of India in catena of earlier decisions relating to the exercise of extraordinary power under Article 226 of the Constitution of India or the inherent power under Section 482 Cr.P.C., wherein it is quoted that such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice.
47. Nowadays, ADR mechanism gets momentum and the needs, for getting the cases, be it civil or criminal in nature, compounded by way of amicable settlement, have been increasing day by day.
48. From the notes for a law lecture, prepared by Mr.ABRAHAM LINCOLN, in the year 1850, it appears that he has advised the lawyers community and the litigant public as under:
Discourage litigation. Persuade your neighbours to compromise wherever you can. Point out to them how the nominal winner is often a real loser-in fees, expenses and waste of time. As a peace maker, the lawyer has a superior opportunity of being a good man. There will still be business enough.
49. It is also imperative on the part of this Court to quote the wordings of their Lordships Hon'ble Mr.JUSTICE K.G.BALAKRISHNAN, the Then Chief Justice of India and Hon'ble Mr.JUSTICE S.B.SINHA, which they have employed in their messages dated 10.06.2009 and 11.06.2009 respectively sent to the Tamil Nadu State Legal Services Authority on the eve of publishing a book on Alternative Disputes Resolution-Mediation titled 'ADR An Overview' on 13.06.2009.
50. His Lordship Hon'ble Mr.JUSTICE K.G.BALAKRISHNAN, in his message has stated as under:
The importance of mediation is underscored by the fact that it is an important device to tackle the mounting caseload before courts at all levels. His Lordship Hon'ble Mr.JUSTICE S.B.SINHA, in his message has stated as under:
When a person knocks at the door of justice, he does so because he has a grievance and in the expectations that the matter will be dealt within a reasonable period of time. This is intricately connected with the issue of the huge pendency of cases in the Courts and the solution to this problem lies in Alternative Disputes Resolution.
51. Again it is imperative on the part of this Court to reiterate the decision of the Apex Court in Surendra Nath Mohanty vs. State, reported in (1999) 5 SCC 218. In this case, the Supreme Court of India, in paragraph No.5, has made it clear as under:
For compounding of the offences punishable under the Indian Penal Code, complete scheme is provided under Section 320 of the Cr.P.C., 1973. Sub-section (1) of Section 320 provides that the offences mentioned in the table provided thereunder can be compounded by the persons mentioned in Column No. 3 of the said table. Further Sub-section (2) provides that, the offences mentioned in the table could be compounded by the victim with the permission of the Court. As against this, Sub-section (9) specifically provides that "no offence shall be compounded except as provided by this Section." In view of the aforesaid legislative mandate, only the offences which are covered by table 1 or 2 as stated above can be compounded and the rest of the offences punishable under Indian Penal Code could not be compounded.
52. In the following two cases, the Hon'ble Supreme Court of India has suggested that the Law Commission should undertake the exercise of identifying more compoundable offences to be included with the proviso to Section 320 Cr.P.C., i. In the case of Ramgopal vs. State of M.P., reported in 2010 (7) SCALE 711, the Supreme Court of India has observed as under:
There are several offences under the IPC that are currently non-compoundable. These include offences punishable under Section 498-A, Section 326 etc., of the IPC. Some of such offences can be made compoundable by introducing a suitable amendment in the statute. We are of the opinion that the Law Commission of India could examine whether a suitable proposal can be sent to the Union Government in this regard. Any such step would not only relieve the courts of the burden of deciding cases in which the aggrieved parties have themselves arrived at a settlement, but may also encourage the process of re-conciliation between them. We, accordingly, request the Law Commission and the Government of India to examine all these aspects and take such steps as may be considered feasible. ii. In an another case, viz.in Crl.A.No.433 of 2004 (Diwaker Singh vs. State of Bihar) decided on 18.08.2010, the Hon'ble Supreme Court has made similar observations, which are extracted as under:
Further, we are of the opinion that Section 324 IPC and many other offences should be made compoundable. We have already referred to the Law Commission of India and the Ministry of Law & Justice, Government of India our suggestion that suitable amendments should be made in the Code of Criminal Procedure for making several offences which are presently treated as non-compoundable under Section 320 Cr.P.C., as compoundable. This will greatly reduce the burden of the courts.
The Law Commission of India and the Ministry of Law & Justice, Government of India may also examine this suggestion. The Law Commission may also examine several other provisions of the Indian Penal Code and other statutes in order to recommend that they may also be made compoundable even if they are presently non-compoundable.
53. It appears that pursuant to these observations of the Supreme Court, the Law Commission of India has embarked on the task of identifying appropriate offences which could be added to the list of compoundable offences under Section 320 Cr.P.C., It also appears that the Law Commission has undertaken that the exercise is only in respect of the offences made punishable under Indian Penal Code for the present. It also appears that the Law Commission of India has addressed a letter to the Hon'ble Minister for Law and Justice forwarding the report of the Law Commission of India, on 'Compounding of (IPC) Offences'.
54. Keeping in view of the above developments, in pursuant to the observations of the Hon'ble Supreme Court of India in Ramgopal vs. State of M.P., reported in 2010 (7) SCALE 711 and Diwaker Singh vs. State of Bihar (Crl.A.No.433 of 2004, decided on 18.08.2010), we hope that the Government of India will make necessary amendment to Sub-section (9) of Section 320 of the Code of Criminal Procedure, 1973 to relax it's vigor and rigidity and to identify more compoundable offences under Section 320 of the Code of Criminal Procedure, 1973.
55. Keeping in view of the above observations and having regard to the fact that the fourth respondent/complainant and the petitioner, who is the first accused have settled their disputes amicably at the instance of their friends and well-wishers and since the fourth respondent/complainant has expressed his willingness in his counter to withdraw his complaint as against the petitioner herein and the respondents 5 to 9, this Court is of view that the inherent jurisdiction of this Court conferred under Section 482 Cr.P.C., can very well be pressed into service to quash the criminal proceedings in the case in Crime No.568 of 2011.
56. In the result this criminal original petition is allowed and the criminal proceedings in the case in Crime No.568 of 2011 pending investigation on the file of the third respondent Police are quashed.
27.03.2012
Index :Yes/No
Internet :Yes/No
krk
To:
1.The Commissioner of Police
Greater Chennai, Egmore, Chennai
2.The Inspector of Police
Central Crime Branch, Teynampet
Chennai
3.The Assistant Commissioner of Police
Anti Land Grabbing Cell-1, Central Crime
Branch, Greater Chennai Police
Egmore, Chennai
4.The Public Prosecutor
Madras High Court, Chennai
T.MATHIVANAN,J
krk
Crl.O.P.No.6439 of 2012
27.03.2012