Karnataka High Court
Digambar S/O Narayan vs The State Of Karnataka on 7 August, 2017
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MR.JUSTICE B. A. PATIL
CRIMINAL APPEAL No.3639/2011
Between:
1. Digambar S/o Narayan
Age: 25 years. Occ: Agriculture
R/o Kotan Hipparga, Tq: Aland
2. Balu S/o Babu
Age:22 years, Occ: Agriculture
R/o Kotan Hipparga, Tq: Aland
3. Arjun S/o Baburao
Age: 35 years, Occ: Agriculture
R/o Kotan Hipparga, Tq: Aland
4. Venkat S/o Annappa
Age: 25 years, Occ: Agriculture
R/o Kotan Hipparga, Tq: Aland
... Appellants
(By Sri. V.G. Biradar, Advocate)
And:
1. The State of Karnataka
(Through Aland Police Station)
Represented by High Court
Public Prosecutor, Gulbarga
2. Pramod
S/o Jaibheem Mulabharati
Age: 26 years, Occ: Student
2
R/o Kotan Hipparga
Dist. Kalaburagi
... Respondents
(Sri. Maqbool Ahmed, HCGP for R-1;
Sri. Ganesh Naik, Advocate for R-2)
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C., praying to grant leave to appeal against the
judgement and order of conviction dated 05.08.2011 passed
by the Special Judge in Spl. Case No.255/2010 convicting
under Section 324 R/w Section 34 of IPC and set aside the
judgement and order of conviction dated 05.08.2011 passed
in Spl. Case No.255/2010 by the Special Judge at Gulbarga,
convicting the Appellants/Accused Nos. 1, 2, 4 and 8 for the
offence punishable under Section 324 R/w 34 of IPC and the
appellants/accused Nos. 1, 2, 4 and 8 are sentenced to
undergo S.I. for one and half year and fine of Rs.5,000/-
each, for the offence punishable under Section 324 R/w
Section 34 IPC, in default, they shall further undergo S.I. for
nine moths.
This appeal coming on for orders this day, the
Court delivered the following:-
JUDGMENT
This appeal is filed by the appellants/accused Nos.1, 2, 4 and 8 assailing judgment and order of conviction dated 05.08.2011 passed by Special Judge, Gulbarga in Spl. Case No.255/2010, wherein the appellants have convicted for the offence punishable under Section 324 read with Section 34 of IPC.
32. At this juncture, learned counsel for the appellants submitted that the injured complainant has compromised the matter with the appellants. Therefore, he may be permitted to compound the offence. In this behalf, he has also filed an application in I.A.No.1/2017 under Section 482 of Cr.P.C. along with the affidavit of the Pramod - the complainant and also the appellants/accused.
3. Sri Ganesh Naik, learned counsel has filed vakalath on behalf of respondent No.2/complainant.
4. Learned counsel for the appellants and learned counsel for the respondents have identified their parties before the Court and also produced the Xerox copies of identity proof of the complainant. The same are placed on record.
5. In the said application, the appellants have sought the permission of the Court to compound the 4 offence punishable under Section 324 read with Section 34 of IPC.
6. Learned counsel for the appellants submits that though the appellants have been convicted for the offence punishable under Section 324 read with Section 34 of IPC, but the material on record indicates that the injured has not sustained grievous injuries and at the most, the offence will be under Section 323 of IPC.
Now, the matter is settled in between the complainant and the accused persons. He further contended that in order to maintain cordial relationship and to maintain harmony between the complainant and accused persons, it is just and necessary to allow I.A. No.1/2017 filed by the appellants and to acquit the appellants.
7. I have heard the learned counsel for the appellants and the learned High Court Government Pleader appearing for the respondent-State.
58. When this Court expressed its doubt as to whether in a criminal appeal wherein the accused have been convicted under Section 324 read with Section 34 of IPC, can the parties be permitted to compromise the matter by invoking Sections 482 and 320 of Cr.P.C., learned counsel for the appellants drawn my attention to the decision of the Apex Court reported in (2014) 6 SCC 466 in the case of Narinder Singh and others vs. State of Panjab and another, wherein, the Apex Court has held as under:
"8. We find that there are cases where the power of the High Court under Section 482 of the Code to quash the proceedings in those offences which are uncompoundable has been recognized. The only difference is that under Section 320(1) of the Code, no permission is required from the Court in those cases which are compoundable though the Court has discretionary power to refuse to compound the offence. However, compounding under Section 320(1) of the Code is permissible only in minor offences or in non- serious offences. Likewise, when the parties reach settlement in respect of offences 6 enumerated in Section 320(2) of the Code, compounding is permissible but it requires the approval of the Court. In so far as serious offences are concerned, quashing of criminal proceedings upon compromise is within the discretionary powers of the High Court. In such cases, the power is exercised under Section 482 of the Code and proceedings are quashed. Contours of these powers were described by this Court in B.S.Joshi vs. State of Haryana reported in (2003) 4 SCC 675 which has been followed and further explained/elaborated in so many cases thereafter, which are taken note of in the discussion that follows hereinafter.
9. At the same time, one has to keep in mind the subtle distinction between the power of compounding of offences given to Court under Section 320 of the Code and quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction conferred upon it under Section 482 of the Code. Once, it is found that compounding is permissible only if a particular offence is covered by the provisions of Section 320 of the Code and the Court in such cases is guided solitarily and squarely by the compromise between the parties, in so far as power of 7 quashing under Section 482 of the Code is concerned, it is guided by the material on record as to whether the ends of justice would justify such exercise of power, although the ultimate consequence may be acquittal or dismissal of indictment. Such a distinction is lucidly explained by a three-Judge Bench of this Court in Gian Singh vs. State of Punjab & Anr. reported in (2012) 10 SCC 303. Lodha, J. speaking for the Court, explained the difference between the two provisions in the following manner: (SCC pp.340-
41, paras 57 & 59)
57. Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable.
Strictly speaking, the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely 8 thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment.
* * *
59. B.S.Joshi v. State of Haryana, (2003) 4 SCC 675, Nikhil Merchant v. CBI (2008) 9 SCC 677 Manoj Sharma v. State, (2008) 16 SCC 1 and Shiji v. Radhika, (2011) 10 SCC 705 do illustrate the principle that the High Court may quash criminal proceedings or FIR or complaint in exercise of its inherent power under Section 482 of the Code and Section 320 does not limit or affect the powers of the High Court under Section 482. Can it be said that by quashing criminal proceedings in B.S.Joshi, Nikhil Merchant, Manoj Sharma and Shiji's case this Court has compounded the non- compoundable offences indirectly? We do not think so. There does exist the distinction between compounding of an 9 offence under Section 320 and quashing of a criminal case by the High Court in exercise of inherent power under Section
482. The two powers are distinct and different although the ultimate consequence may be the same viz. acquittal of the accused or dismissal of indictment."
10. Apart from narrating the interplay of Section 320 and Section 482 of the Code in the manner aforesaid, the Court in Gian Singh case also described the extent of power under Section 482 of the Code in quashing the criminal proceedings in those cases where the parties had settled the matter although the offences are not compoundable. In the first instance it was emphasized that the power under Sec. 482 of the Code is not to be resorted to, if there is specific provision in the Code for redressal of the grievance of an aggrieved party. It should be exercised very sparingly and should not be exercised as against the express bar of law engrafted in any other provision of the Code. The Court also highlighted that in different situations, the inherent power may be exercised in different ways to achieve its ultimate objective. Formation of opinion by the High Court before it exercises 10 inherent power under Section 482 on either of the twin objectives, (i) to prevent abuse of the process of any court, or (ii) to secure the ends of justice, is a sine qua non.
11. As to under what circumstances the criminal proceedings in a non-compoundable case be quashed when there is a settlement between the parties, the Court provided the following guidelines: (Gian Singh case SCC pp. 340-41, para 58.) "58. Where the High Court quashes a criminal proceeding having regard to the facts 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. No doubt, crimes are acts which have harmful effect on the public and consist in wrongdoing that seriously endangers and threatens the well-being of the society and it is not safe to leave the 11 crime-doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without the permission of the court. In respect of serious offences like murder, rape, dacoity, etc. or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between the offender and the victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavor having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to the victim and the offender and the victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within 12 the framework of its inherent power, quash the criminal proceeding or criminal complaint or FIR if it is satisfied that on the face of such settlement, there is hardly any likelihood of the offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard-and-fast category can be prescribed."
12. Thereafter, the Court summed up the legal position in the following words: (Gian Singh case, SCC pp.342-43, para 61) "61. The position that emerges from the above discussion can be summarized thus:
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 plentitude with no statutory limitation but it has to be exercised in accord with the guidelines engrafted in such power viz.: (i) to secure 13 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 14 predominatingly civil flavor 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 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 or continuation of the criminal proceeding would tantamount to abuse of 15 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."
The Court in Gian Singh case was categorical that in respect of serious offences or other offences of mental depravity or offence of merely dacoity under special statute, like the Prevention of Corruption Act or the offences committed by Public Servant while working in that capacity. The mere settlement between the parties would not be a ground to quash the proceedings by the High Court and inasmuch as settlement of such heinous crime cannot have imprimatur of the Court.
13 to 28 xxx xxx
29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the 16 parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:
29.1. Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.
29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:
(i) ends of justice, or
(ii) to prevent abuse of the process of any Court.17
While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.
29.3. Such a power is not be exercised in those prosecutions which involve 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. Similarly, for offences alleged to have been committed under special statute 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.
29.4. On the other, those criminal cases having overwhelmingly and pre-dominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.
29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and 18 continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.
29.6. Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore is to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of 19 conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the later case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship.
29.7. While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the 20 circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime."
9. Looking to the above circumstances and the law laid down by the Apex Court, it is crystal clear that in a criminal petition filed under Section 482 of Cr.P.C., the Court can merely exercise the same power under the 21 criminal proceedings as held by the Apex Court in the above cases.
10. In that light, as could be seen from the factual matrix of this case and as admitted by the parties that the accused and the complainant are the friends and the alleged incident has taken place only for the reason of threatening Anandrao Isre and now the matter has been settled in between each other and they alleged that in future they will live in the same village with same harmony. The Hon'ble Apex Court has allowed the compromise between the accused and the complainant, wherein the parties have settled the dispute. Apart from this, the appellants are interesting to reside in the village harmoniously by settling their disputes. The complainant and accused are friends and they want to live in the same village. Under the circumstances, I am of the considered opinion that the differences between the parties are purely personal in 22 nature and the alleged offences are not punishable with death or imprisonment for life and there is blink chance of conviction even under Section 324 of IPC and if at all the conviction is there, at the most the said conviction may be drawn under Section 323 of IPC. There is no legal impediment to this Court under Section 482 of Cr.P.C. to quash the orders of the learned Special Judge, Gulbarga in Special Case No.255/2010 dated 04.08.2011. In view of the reasons stated above, the following order is passed:
ORDER I.A. No.1/2017 filed under Section 482 of Cr.P.C.
is hereby allowed. The judgment and order of conviction dated 04.08.2011 passed by the learned Special Judge, Gulbarga in Special Case No.255/2010 is set aside and the appellants are acquitted of the offence punishable under Section 324 read with Section 34 of IPC.23
Consequently, the appeal is allowed. However, the amount, if any, deposited by the appellants before the Trial Court shall be confiscated to the State as expenses of the trial.
Sd/-
JUDGE LG