Karnataka High Court
Basirasab vs The State Of Karnataka on 20 June, 2014
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 20TH DAY OF JUNE, 2014
BEFORE:
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
CRIMINAL REVISION PETITION NO. 341/2014
BETWEEN:
1. Basirasab
S/o Hasansab Tilavalli,
Aged about 44 years,
Coolie, R/o Chikkerur,
Hirekerur Taluk,
Pin Code - 581 111.
2. Khuteja
W/o Syed Pheer
Pattanashetty,
Aged about 45 years, Household,
R/o Chikkerur,
Hirekerur Taluk,
Pin Code - 581 111.
3. Shabbir S/o Khasimsab Nittur,
Aged about 32 years,
Coolie, R/o Chikkerur,
Hirekerur Taluk,
Pin Code - 581 111. ... Petitioners
(By Sri. S.G. Kadadakatti, Adv.)
2
AND:
The State of Karnataka,
By Haunsbhavi Police,
Hirekerur Taluk,
Haveri District-581 111. ... Respondent
(By Sri. V.M. Banakar, Addl. SPP)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 R/W 401 OF CODE OF
CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE
ORDER PASSED BY THE II ADDL. SESSIONS JUDGE,
HAVERI (SITTING AT RANEBENNUR) DATED
30.08.2013 IN CRIMINAL APPEAL NO.27/2007 AND
THE ORDER OF CONVICTION AND SENTENCE DATED
04.05.2007 PASSED BY THE CIVIL JUDGE (JR. DVN.)
AND J.M.F.C., HIREKERUR, IN C.C. NO.293/2004 AND
FURTHER TO ACQUIT THE PETITIONERS/ACCUSED
FOR THE OFFENCES BY ALLOWING THIS CRIMINAL
REVISION PETITION.
THIS CRIMINAL REVISION PETITION COMING ON
FOR ADMISSION, THIS DAY THE COURT MADE THE
FOLLOWING:
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ORDER
This is the Revision Petition filed against the orders passed in Criminal Appeal No.27/2007 dated 30th August 2013 by the Additional District and Sessions Judge, Haveri in confirming the Judgment of conviction and sentence passed by the Trial Court in C.C. No.293/2004 dated 04.05.2007 in convicting the petitioners herein (accused therein) for the offences punishable under Sections 498-A and 323 r/w 34 of I.P.C. imposing sentence of imprisonment for six months for the offence under Section 498-A of I.P.C. and also imposing a fine of Rs.200/- each for the offence under Section 323 r/w 34 of I.P.C., in default of payment of fine the appellants - accused shall undergo further simple imprisonment for 20 days each.
2. Though at the time of filing the Revision Petition, several grounds have been urged before this Court, but at the time of submitting the arguments before this 4 Court, the learned Counsel submitted that, during the pendency of the criminal appeal the parties have compromised the matter and the accused No.1 and the complainant by name Haseena Bashirsab Tlilwalli have been residing together as husband and wife. The said Haseena Bashirsab Tilwalli was examined as PW-1 before the Trial Court.
3. It is submitted that during the course of pendency of the appeal the accused No.2 expired. Accused Nos.1, 3 and 4 and PW-1 are present before this Court and filed an application under Section 320 r/w 482 of Cr.P.C. seeking indulgence of this Court to permit the parties to compound the offences and pass appropriate orders in this case. PW-1 - wife of accused No.1 is also present before this Court and she has also filed Affidavit before this Court and she is identified by Advocate by name Sri. Girish S. Hiremath. All the parties have admitted before this Court that they have compromised 5 the matter and accused No.1 and PW-1 have been residing together and they are living happily with each other as husband and wife.
4. Heard the learned Additional State Public Prosecutor for the State.
5. In view of the above said compromise between the parties, the learned Counsel restricted his arguments to the sentence passed by the Trial Court. He requested this Court to quash the entire judgment of the Trial Court and as well as Appellate Court and consequently acquit the accused under Section 320(8) of Cr.P.C.
6. Learned Counsel for the accused also submitted that if for any reason the Court cannot exercise the powers under Section 482 of Cr.P.C. and quash the proceedings or acquit the accused under Section 320(8) of Cr.P.C., as the accused Nos.1, 3 and 4 have already undergone punishment of one month 12 days after the 6 disposal of the appeal by the Appellate Court. Therefore, reduce the sentence passed by the Trial Court to the extent of the imprisonment already undergone by the accused persons.
7. I have carefully perused Section 482 of Cr.P.C. which reads thus :
"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 under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice".
The said provision empowers the Court to exercise its inherent extraordinary power in order 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. The word 'otherwise to secure the ends of 7 justice' has to be understood in connection with the other words used in the said provision. Therefore, even accepting the said power vested in this Court i.e. the Court can pass any order to secure the ends of justice, but it should be taken in such a manner that such power has to be exercised so as to prevent abuse of the process of any Court or to give effect to any orders under this Code. In this particular case, the judgment has already been delivered by the Trial Court and as well as the Appellate Court. Therefore, there is no question of abuse of any process of any Court arises or the Court cannot exercise the powers under Section 482 of Cr.P.C. to give effect to any orders under this Code considering the peculiar nature of this case. Further added to that, compounding of the offences can only be done by the Courts under the Code under Section 320(1) or (2) of Cr.P.C. By exercising powers under Section 482 of Cr.P.C. the Court virtually cannot permit 8 the parties to compound a non-compoundable offence which is not permitted under Section 320(1) or 320(2) of Cr.P.C., otherwise, the very purpose of introducing Section 320(1) and (2) of Cr.P.C. will be totally frustrated, if the High Court start exercises the powers under Section 482 of Cr.P.C. and allows the parties to compromise the petition unmindful of the provision under Section 320(1) and (2) of Cr.P.C. it will amounts to opening the flood gate and there will be uncontrollable number of cases would be filed before this Court irrespective of the nature of the offences and gravity of the offences. Therefore, in my opinion, Section 482 of Cr.P.C. cannot be invoked as a substitute to Section 320(1) or (2) of Cr.P.C. they are two distinct and separate powers to be exercised by different authorities. Of course, there is no bar for this Court to allow the parties to enter into compromise even at the stage of Revision against the judgment of the Appellate 9 Court or challenging the order of the Trial Court against acquittal or the conviction judgment rendered by the Trial Court only if the offences are compoundable in nature. Even if the Trial Court render judgment of conviction if the offences are compoundable then even at the time of exercising the Revisional powers under Section 397 of Cr.P.C. the Court can allow the parties to compromise the matter before the High Court only if the offences are compoundable in nature and not a non- compoundable offence can be allowed to be compromised. Section 320(9) of Cr.P.C. also amply makes it clear that no offence shall be compounded except as provided by this Section i.e. the mandate of the statute but no Court can permit the parties to compound the offence except as provided under the provisions under Section 320(1) or (2) of Cr.P.C.
8. It is worth to refer in this regard a decision of the Apex Court reported in (2012) 10 SCC 303 between 10 Gian Singh vs. State of Punjab and another. The Apex Court has held as follows :
"A. Criminal Procedure Code, 1973 - Ss. 482 and 320 - Relative scope - Inherent power of High Court under S. 482 to quash criminal proceedings involving non-compoundable offences in view of compromise arrived at between the parties - Whether available - If so, then when may such power be exercised - Social impact of crime in question vis-à- vis its individual impact, as decisive criterion for exercise of quashment power in such cases - Guidelines for and limitations on exercise of quashment power of High Court in such cases, laid down - Whether S. 320 creates a bar/limits inherent power of High Court under S.482, examined - Whether B.S. Joshi, (2003) 4 SCC 675, Nikhil Merchant, (2008) 9 SCC 677 and Manoj Sharma, (2008) 16 SCC 1 require reconsideration.11
-Held, power of High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from power of a criminal court of compounding offences under S. 320 - Cases where power to quash criminal proceedings may be exercised where the parties have settled their dispute, held, depends on facts and circumstances of each case - Before exercise of inherent quashment power under S. 482, High Court must have due regard to nature and gravity of the crime and its societal impact.
-- Thus, held, heinous and serious offences of mental depravity, murder, rape, dacoity, etc., or under special statutes like Prevention of Corruption Act or offences committed by public servants while working in their capacity as public servants, cannot be quashed even though victim or victim's family and offender have settled the dispute - Such offences 12 are not private in nature and have a serious impact on society.
-- But criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing -
Offences arising from commercial, financial, mercantile, civil, partnership or like transactions or offences arising out of matrimony relating to dowry, etc., or family disputes where the wrong is basically private or personal in nature and parties have resolved their entire dispute, High Court may quash criminal proceedings - High Court, in such cases, must consider whether it would be unfair or contrary to interest of justice to continue with the criminal proceedings or continuation of criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between parties and whether to secure ends of justice, it is appropriate the criminal case is put to an end - If such 13 question(s) are answered in the affirmative, High Court shall be well within its jurisdiction to quash the criminal proceeding - Hence, held, B.S. Joshi, Nikhil Merchant and Manoj Sharma cases are all correctly decided - Prevention of Corruption Act, 1988 - Ss.7 to 13 - Penal Code, 1860 - Ss. 376, 302, 406 and 420 - Negotiable Instruments Act, 1881, Ss.147, 141 and 138.
B. Criminal Procedure Code, 1973 -
Ss 482 - Quashing of criminal proceedings - Exercise of power by High Court - Quashing of non-compoundable offences in view of compromise arrived at between parties - Guidelines laid down - Categories of cases in which such power can be exercised stated by way of illustration, and not exhaustively.
C. Criminal Procedure Code, 1973 - Ss 482 and 320 - Relative scope - Power of High Court under S. 482, for quashing criminal offences and power of 14 compounding of offences under S. 320 - Distinction between - Held, the same materially different and not interchangeable - In compounding of offences, power of a criminal court is circumscribed by provisions contained in S. 320, being guided solely and squarely thereby - On the other hand, formation of opinion by High Court for quashing a criminal offence or criminal proceeding or criminal complaint under S. 482 is guided by the material on record as to whether the ends of justice would justify such exercise of power although ultimate consequence may be acquittal or dismissal of indictment - Hence, quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offences".
The Apex Court has clarified that the distinction between Section 320 and 482 of Cr.P.C. which was held that the two provisions are materially different and not 15 interchangeable. In compounding of offence, power of Criminal Court is circumscribed by provisions contained in S. 320, being guided solely and squarely thereby - On the other hand, formation of opinion by High Court for quashing a criminal offence or criminal proceeding or criminal complaint under S. 482 is guided by the material on record as to whether the ends of justice would justify such exercise of power although ultimate consequence may be acquittal or dismissal of indictment - Hence, quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offences. Therefore, it makes abundantly clear that while exercising powers under Section 482 of Cr.P.C. the Court can take compromise between the parties as one of the circumstances to quash the proceedings but quashment of the proceedings should be within the para-meters of Section 16 482 of Cr.P.C. i.e. in order to prevent the abuse of process of Courts and also in order to secure the ends of justice.
9. Now, coming to the other ground urged by the learned Counsel with regard to the sentence. Of course, the compromise between the parties also should be taken into consideration while sentencing the accused. Because while exercising the powers under Section 397 r/w Section 401 of Cr.P.C. this Court has got full powers even to modify the sentence passed by the Trial Court or even to set aside the judgments of the Trial Court and the First Appellate Court, if the grounds are made out, power under Section 397 of Cr.P.C. is not restricted. Therefore, looking to the above said circumstances of the case, now let me consider whether in view of the compromise, Court can reduce the sentence awarded by the Trial Court.
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10. The Trial Court has averred that the accused have committed the offences and they are not entitled for the benefit under the POA Act. The offence under Section 498-A of I.P.C. is punishable with three years and Sec. 323 is punishable with imprisonment for one year or with fine. Without giving any reasons why the Trial Court is imposing imprisonment for six months. The Trial Court has punished the accused persons with six months imprisonment, no reason has been assigned. Even the Appellate Court also not at all taken pains to considered whether there are any mitigating circumstances to reduce the sentence.
11. Admittedly, the records clearly disclose that all the accused persons are close relatives to each other and it is a family dispute purely private and personal in nature. The parties have to live together in future throughout their life. A small abrasion in the family that might have lead to the wife to file a criminal 18 complaint unmindful of the consequence that the parties have to face. She might have filed the complaint and later she might have realised that she has to live throughout, with the husband with regard to her remaining period of life. Therefore, perhaps after having realised she came forward to compromise the matter with her husband. Apart from that, there is no allegations whatsoever against the accused persons that they are anti-social elements and they are menace to the society. They have not committed any offences earlier, no bad antecedents whatsoever alleged against the accused persons. The age of the accused persons also, in my opinion play a very important role. The accused No.1 is aged more than 41 years, 3rd accused is aged more than 50 years and 4th accused is aged 30 years. They are all eking their livelihood by means of doing agricultural coolie. When the offences have been compromised between the parties the cumulative of 19 effect of other mitigating circumstances should be taken into consideration by this Court. The compromise between the parties, in my opinion, overwhelmingly satisfied the Court that this is not a case where the accused shall be sent back to the jail nor directing them to undergo punishment as ordered by the Trial Court. Therefore, under the above said circumstances, I am of the opinion that it is under the Revisional jurisdiction this Court is exercising powers. Nevertheless, the compromise between the parties can be very well taken as one of the strong mitigating circumstances to reduce the sentence passed by the Trial Court by blending the powers under Sections 397 and 482 of Cr.P.C.
12. Hence, with these observations, I am of the opinion, the sentence of imprisonment imposed by the Trial Court so far it relates to Section 498-A of I.P.C. is concerned shall be reduced to the imprisonment already 20 undergone by the accused Nos.1, 3 and 4. Accordingly, I proceed to pass the following Order :
The judgment of conviction passed by the Trial Court as affirmed by the Appellate Court for the offences under Sections 498-A and 323 r/w Section 34 of I.P.C.
are hereby confirmed. However, the sentence passed by the Trial Court as affirmed by the Appellate Court is modified to the following effect :
Imprisonment already undergone by the accused i.e. one month 12 days after the disposal of the appeal by the First Appellate Court is hereby imposed as sentence upon the accused. Therefore, there is no part of sentence remained to be satisfied by accused they are at liberty. Their bail bonds and surety bonds are cancelled. If fine is not yet paid the Trial Court shall recover the same in accordance with law. 21
Accordingly, the Revision Petition is hereby disposed of.
Sd/-
JUDGE Rbv