Punjab-Haryana High Court
Jasdev Singh vs State Of Haryana --Respondent on 13 July, 2009
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
Crl.A.No.327-SB of 1997 1
In the Punjab and Haryana High Court,at Chandigarh.
Crl.A.No.327-SB of 1997 (O&M)
Decided on July13,2009
Jasdev Singh -- Appellant
vs.
State of Haryana --Respondent.
AND Crl.A.No.328-SB of 1997 (O&M) Decided on July 13,2009 Jasbir Singh and others -- Appellants vs. State of Haryana --Respondent.
Present: Mr.D.S.Pheruman, Advocate, for the appellants Mr. Partap Singh,Sr.DAG,Haryana, for the State. Mr. KBS Mann,Advocate, for the complainant.
Rakesh Kumar Jain,J:
This order shall dispose of two appeals bearing Criminal Appeal No.327-SB of 1997 (Jasdev Singh Vs. State of Haryana) and Criminal appeal No.328-SB of 1997 (Jasbir Singh and others Vs. State of Haryana), as both have arisen out of a common order passed by the learned Additional Sessions Judge, Ambala, dated 03.4.1997, vide which all the appellants were held guilty for the offences punishable under Sections 148/307/325/324/323 read with Section 149 I.P.C, and vide Crl.A.No.327-SB of 1997 2 order dated 05.4. 1997, were sentenced under Section 307/149 IPC to undergo R.I. for three years with fine of Rs.2000/- each, in default of payment of fine to undergo R.I. for a period of six months; Under Section 325/149 IPC, to undergo R.I. for a period of two years and a fine of Rs.1000/-, in default of payment of fine to undergo further R.I. for a period of three months; Under Section 324/149, to undergo R.I. for one year each; Under Section 323/149 IPC, to undergo R.I. for six months each and Under Section 148 IPC, to undergo R.I. for one year each. All the sentences were, however, ordered to run concurrently.
On an application for bail, the trial Judge passed the following order on 5.4.1997:-
"Heard. Fine has been paid. The substantive sentence of imprisonment is suspended till 4.5.1997 to enable the accused- persons to file an appeal in the Hon'ble High Court on furnishing a bond in the sum of Rs.10,000/- with one surety each in the like amount to the satisfaction of this Court".
The appeals filed by the appellants mentioned above were admitted on 1.5.1997 and the interim bail granted by the trial Court was extended till 9.5.1997. The sentence of the appellants was suspended on their furnishing personal bond of a sum of Rs. 10,000/- with a surety of the like amount each to the satisfaction of concerned Chief Judicial Magistrate, Ambala, vide order dated 09.5.1997.
Brief facts of the case are that on 23.7.1990, at about 5 p.m, a fight took place between Budh Ram, Smt.Vidaya Devi, Smt.Gurnamo, Smt. Natho and Smt.Pushpa Devi on one side and Ram Singh, Jasbir Singh, Avtar Singh alias Happy and Jasdev Singh on the other side, in respect of a common street. Both the parties assaulted Crl.A.No.327-SB of 1997 3 each other. A FIR No. 192 dated 23.7.1990 was registered under Sections 307,325,324,323,149, 148 of I.P.C and Section 27/54/59 of the Arms Act, against the appellants on the complaint made by Smt.Gurnamo (PW-5), whereas a cross case was registered against the complainant vide FIR No.191 of the same date under Sections 307/324/323/341/34 of IPC, on the statement of Ram Singh (since deceased).
It is worthwhile to mention here that Budh Ram died a natural death on 16.1.2003, his wife Vidaya Devi died a natural death on 23.12.1994 and Ram Singh also died a natural death on 17.10.1990 prior to the presentation of the challan. Thus, no trial was held against him.
In the cross case registered by Ram Singh vide FIR No.191 dated 23.7.1990, proceedings against Budh Ram (since deceased), his wife Vidaya Devi (since deceased) and Natho (since deceased), were dropped by the police.
During the pendency of the present appeals, Criminal Misc. No. 16324 of 2009 in Criminal Appeal No.327-SB of 1997 and Criminal Misc. No.16307 of 2009 in Criminal Appeal No.328-SB of 1997, were filed by the appellants under Section 320 read with Section 482 Cr.P.C to allow the appellants to compound the offences under which they have been convicted and sentenced by the Court below vide the aforesaid orders.
Notice was issued in the said applications on 1.4.2009 for 24.4.2009, but no reply has been filed by the State.
Mr. D. S. Pheruman, learned counsel appearing for the appellants in Criminal Appeal No.328-SB of 1997 has argued that both the parties to the dispute are the permanent residents of village Crl.A.No.327-SB of 1997 4 Jalbera, Tehsil and District Ambala. There was no previous enmity between the parties. The dispute was with regard to a common street. It is submitted that due to the intervention of the respectables of the village, ill-will and misunderstanding amongst them have been removed. There has been no litigation either civil or criminal between the parties or between their children since the date of occurrence i.e. 23.7.1990. It was also submitted that the appellant Jasdev Singh in Criminal Appeal No. 327-SB of 1997 has become an Advocate during the pendency of the appeal and is practising in the lower Courts at Ambala City. It is further submitted by Mr. Pheruman that in order to bury the hatchet, a compromise dated 9.12.2008 has been effected between the parties in writing which has been witnessed by Sh.Jaswinder Singh, Member Panchayat and Sh.Tejinder Singh son of Sh.Prem Singh of the village. It is further submitted by the learned counsel that the parties have suffered agony of protracted trial since 1993 in which almost 16 years have passed. Thus, on these premises, it has been prayed that application under Section 320 Cr.P.C. be allowed and permission may be granted to compound the offences and they be acquitted.
Learned counsel for the respondent/State, however, submits that under Section 320 (1), the offences punishable under the sections of the Indian Penal Code, specified in the first two columns of the table provided can be compounded by the persons mentioned in the third column and under Section 320 (2), offences punishable under the sections of the Indian Penal Code specified in the first two columns of the table can be compounded with the permission of the Court before which any prosecution for such offence is pending by the persons mentioned in the third column of that table. He further Crl.A.No.327-SB of 1997 5 submits that as per Section 320 (9), no offence shall be compounded except as provided by this section. Therefore, it is submitted that the offences punishable under Sections 323 IPC is compoundable under Section 320 (1) Cr.P.C, 325 IPC, is compoundable under Section 320 (2) Cr.P.C., but insofar the offences punishable under Sections 307 and 324 IPC are concerned, both are non-compoundable as they are not provided either in the table provided under Section 320 (1) Cr.P.C. or in the table provided under Section 320 (2) Cr.P.C. He further submits that even as per Section 320 (2) Cr.P.C., the offences provided in the table can be compounded with the permission of the Court before which any prosecution for such offence is pending, whereas in the present case, no prosecution is pending, rather the appellants have been convicted and sentenced by the trial Court.
Faced with this situation, learned counsel for the appellants has submitted that according to Section 320 (5) Cr.P.C, the offences in the appeal can be compounded with the permission of the Court where the appeal is pending. He further contends that in view of Section 320 (8) Cr.P.C, the composition of offences shall have the effect of acquittal of the accused with whom the offence has been compounded.
Section 320 (5) and Section 320 (8) Cr.P.C, are reproduced below:-
"(5)When the accused has been committed for trial or when he has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court to which he is committed, or, as the case may be, before which the appeal is to be heard. (8) The composition of an offence under this section shall Crl.A.No.327-SB of 1997 6 have the effect of an acquittal of the accused with whom the offence has been compounded"
Learned counsel for the appellants has submitted that the finest hour of justice is the hour of compromise. He referred to a decision of the Supreme Court in the case of Mrs. Shakuntala Sawhney vs. Mrs.Kaushalya Sawhney and others, (1980)1 SCC 63 to submit that it has been held by Hon'ble Krishna Iyer, J, that 'the finest hour of justice arrives propitiously when parties, despite falling apart, bury the hatchet and weave a sense of fellowship of reunion". Learned counsel further relies upon Kulwinder Singh and others Vs. State of Punjab and another 2007 (3) R.C.R. (Criminal) 1052, Y. Suresh Babu Vs. State of Andhra Pradesh and another 1987 (2) JT 361 Mahesh Chand and another Vs. State of Rajasthan AIR 1988 Supreme Court 2111 in support of his contention.
I have heard both the learned counsel for the parties and have perused the record.
It transpires from the record that the dispute arose between the parties on the point of removal of iron girder which was installed by the Gram Panchayat in the middle of the street so that no tractor,trolley or bullock cart could pass in the street, where children used to play in order to avoid any untoward incident. Some of the parties to the dispute , namely Budh Ram died on 16.1.2003,his wife Vidaya Devi died on 23.12.1994 and Ram Singh Advocate, who is alleged to have fired from his pistol which though did not cause any injury to any one also died on 17.10.1990. The parties to the dispute are permanent residents of village Jalbera. There is no case either civil or criminal pending against each other since the present occurrence dated 23.7.1990. One of the appellants namely Jasdev Singh has become an Advocate during the pendency of Crl.A.No.327-SB of 1997 7 the appeal and is practising in the District Courts at Ambala City. After protracted trial and litigation of 16 years, the parties to the dispute have sorted out their differences and are living peacefully in complete harmony in the village.
No doubt, Section 320 (1) Cr.P.C. provides a list of cases which could be compounded at the instance of persons who have been mentioned in column No. 3 of the table and Section 320 (2) Cr.P.C. provides a list of cases which can be compounded with the permission of the Court by the persons mentioned in column No.3 of the table. There is also no dispute that Section 320 (9) Cr.P.C. provides that no offence shall be compounded except for one which is provided in the Section. But the Full Bench judgment of this Court in Kulwinder Singh's Case (Supra) held that the High Court has wide power under Section 482 Cr.P.C. to quash the proceedings even in non-compoundable offence notwithstanding the bar under Section 320 (9) of the Cr.P.C., in order to enhance the social amity and reduce friction.
Since it is a case in which compounding is being sought in the appeal where the appellants have been convicted by the Court below and have been sentenced, therefore. learned counsel for the appellants has relied upon a decision of the Supreme Court in Y. Suresh Babu's Case (Supra), in which the appellant was convicted under Section 326 of IPC, which is non-compoundable, but due to the intervention of well wishers, a compromise was effected between the parties. It was a case where the appellant had stabbed the complainant due to a minor altercation near the pan shop, but later on, a compromise was effected between them in which the complainant has also joined in the prayer for permission to compound the offence. In this case, the Apex Court ordered for compounding, but it was observed that it should not be treated as a precedent. Crl.A.No.327-SB of 1997 8
Learned counsel for the appellants has further relied upon a decision of the Apex Court in Mahesh Chand's Case (Supra) in which the appellants were convicted under Section 307 IPC. During the pendency of the appeal, they wanted permission of the Court to compound the offence. The accused/appellant were acquitted by the trial Court but convicted by the High Court. In the said case, one of the appellants/accused was a practising lawyer and there was a counter case arising out of the same transaction. In the said case, the aforesaid judgment of Suresh Babu's Case (Supra) was cited. Keeping in view the circumstances, the Supreme Court directed the trial Court to permit the appellants to compound the offence and no such order was passed that this decision be not treated as a precedent.
The complainant in both the cases are represented by Mr.KBS Mann, Advocate, who has stated at the bar that the compromise produced by the appellants on record as Annexure A-1 has been entered into between the appellants/accused and the complainant. He further submits that since the dispute has been resolved once for all, necessary permission may be granted and after compounding the offence, the appellants/accused may be ordered to be acquitted.
The facts of the present case are some-what similar to the facts of the above-referred case of Mahesh Chand (Supra), in which the Apex Court had granted permission for compounding the offence.
Thus, in the facts and circumstances of the present appeals, Criminal Misc.No.16324 of 2009 in Criminal appeal No.327-SB of 1997 and Criminal Misc. No.16307 of 2009 in Criminal Appeal No.328-SB of 1997 are allowed and permission is granted to the appellants in both the appeals to compound the offences. It is ordered that in terms of the compromise deed dated 09.12.2008, which is attached as Annexure A-1 in Crl.A.No.327-SB of 1997 9 both the applications, the offences under Sections,307,325, 324,323,149,148 IPC and Section 27/54/59 of the Arms Act and 307,324,323,341,34 IPC, in which they were convicted and sentenced, are compounded and as a necessary corollary, in view of Section 320 (8) Cr.P.C, the appellants are acquitted of the charges levelled against them.
Both the appeals are thus allowed and order of conviction and sentence are set aside.
July 13,2009 (Rakesh Kumar Jain) RR Judge