Orissa High Court
Sisupala Duria And Anr. vs State Of Orissa on 5 September, 2003
Equivalent citations: 2004CRILJ1007
Author: P.K. Tripathy
Bench: P.K. Tripathy
JUDGMENT P.K. Tripathy, J.
1. Petitioners pray to quash the order dated 2-4-2002 passed by learned S. D. J. M., Dharmagarh in G.R. Case No. 546 of 2001. By that order learned S.D.J.M. has taken cognizance of the offence punishable under Section 307/34, I.P.C. Petitioners as the accused persons have claimed for quashing of the proceeding on the ground of absence of a prima facie case for the said offence. It has also been stated in the application under Section 482 of the Code of Criminal Procedure, 1973 (in short, 'the Code') that G.R. Case No. 546 of 2001 is a counter case to G.R. Case No. 545 of 2001 initiated at the instance of the accused/petitioners. It has also been stated in the application under Section 482 of the Code that the allegation in the F.I.R. and, the statements of the witnesses do not make out a prima facie case for the offence under Section 307, I.P.C.
2. The injured Manjit Duria though not a party to this proceeding, on 17-1-2003 entered appearance and filed an affidavit relating to amicable settlement of the dispute and accordingly stating to close the criminal proceeding.
3. It appears from the F.I.R. (Annexure-1) that there is allegation of attack and assault on the said injured on his head by use of weapon like Tangia' and declaration made by the assailants, i.e., the petitioners to do away with him. Under such circumstance, the contention of the petitioners that the nature of the injury does not disclose a case under Section 307, I.P.C. is not to be considered at this stage in as much as it is the intention and not the gravity of the injury which shall determine if there was an attempt to murder.
4. Contention of the petitioners is that the Criminal Proceeding (G.R. Case No. 546 of 2001) against them is a counter-blast to G.R. No. 545 of 2001. That circumstance at best may indicate about a mutual fight between both the groups and until version of the parties is tested through the evidence on record, at this stage it is premature to consider who was the aggressor and which party acted in self-defence. Therefore, that circumstance does not qualify to the requirement of law under Section 482 of the Code to quash the criminal proceeding.
5. Relying on the ratio in the case of B. S. Joshi v. State of Haryana, (2003) 25 OCR (SC) 99 : (2003 Cri LJ 2028) and Nikhil Kumar Pattanaik v. State of Orissa, (2003) 25 OCR 255: (20Q3 Cri LJ 3957} learned counsel for the petitioners argued that in view of the amicable settlement between the parties, which is evident from the affidavit filed by the injured, the criminal proceeding be quashed in exercise of the inherent power under Section 482 of the Code. Learned Standing Counsel vehemently opposed to that submission on the ground that the aforesaid ratio are not applicable to the facts and circumstances of the present case and in view of the authoritative pronouncement of the Apex Court in the case of Surendra Nath Mohanty v. State of Orissa, (1999) 17 OCR (SC) 25 ; (1999 Cri LJ 3496), that an offence which is not compoundable under Section 320 of the Code cannot be permitted to be compounded. Therefore, he argued that a consequence which is prohibited by law under Section 320 of the Code should not be granted to the petitioner by invoking the inherent power. He also refers to the case of Pradesh Pattnaik v. The State, (2000) 18 OCR 474 : (2000 Cri LJ 3277) in that context. The aforesaid contention of the parties needs careful consideration.
6. In the case of Surendra Nath Mohanty (supra) a Bench comprising of three Hon'ble Judges of the Apex Court propounded that in view of Sub-section (9) of Section 320 of the Code, no other offence should be permitted to be compounded except the offence enumerated in Sub-sections (1) and (2) of Section 320. Similar view was expressed by the Apex Court in a Division Bench in the case of Ram Lal v. State of Jammu and Kashmir, 1999 Cri LJ 1342 : (AIR 1999 SC 895). In the case of Pradesh Pattnaik (2000 Cri LJ 3277) (Orissa) (supra) the said proposition of law was followed by this Court.
7. In the case of B. S. Joshi (2003 Cri LJ 2028) (SC) (supra), while considering the contention relating to quashing of criminal trial for the offences involved under Sections 498-A and 406, I.P.C., their Lordships referred to several decisions in the context of exercise of inherent power and compounding of non-compoundable offences. In that context, their Lordships have concurred with the ratio in the case of Surendra Nath Mohanty (1999 Cri LJ 3496) (SC) (supra). Their Lordships have observed that:
"9. The High Court has also relied upon the decision in case of Surendra Nath Mohanty's case (supra) for the proposition that offence declared to be non-compoundable cannot be compounded at all even with the permission of the Court. This is of course so. The offences which can be compounded are mentioned in Section 320. Those offences which are not mentioned therein cannot be permitted to be compounded. In Mohanty's case, the appellants were convicted by the trial Court for offence under Section 307."
Thereafter, in paragraphs 12 and 14 of the reported decision their Lordships have expressed the view in the following manner :
"12. The special features in such matrimonial matters are evident. It becomes the duty of the Court to encourage genuine settlement of matrimonial disputes."
"14. There is no doubt that the object of introducing Chapter XX-A containing Section 498-A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498-A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper-technical view would be counter productive and would act against interests of woman and against the object for which this provision was added. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent woman from settling earlier. That is not the object of Chapter XX-A of Indian Penal Code."
As a consequences of that discussion, their Lordships propounded that:
"15. In view of the above discussion we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code."
8. In the case of Nikhil Kumar Pattnaik (2003 Cri LJ 3957) (supra) a learned single Judge of this Court has followed the aforesaid ratio and permitted quashing of the proceeding for the offence under Section 294 when he found that the other offences involved, viz., Sections 341, 448 and 506, I.P.C. are compoundable in nature and parties have entered into compromise. Accordingly, he quashed that proceeding. It is needless to say that circumstance in the present case is not so because the lone offence is under Section 307, I.P.C. which is not only not compoundable but also triable by the Court of Session.
9. A ratio is to be followed in the context it is delivered unless the ratio therein has an universal application. From the narration of the facts and provision of law involved in that case, this Court is of the opinion that in the case of B. S. Joshi (2003 Cri LJ 2028) (supra) it is readable from the quoted passage from that judgment that the Apex Court have not propounded for universal application of the use of the inherent powers to quash the criminal proceeding of non-compoundable offences, involving any offence whatsoever, only in the event of a compromise between the parties. On the other hand it is readable from the said decision that their Lordships took into consideration the matter of a matrimonial dispute between the parties and the principle for having a settlement/conciliation, if possible, and in that context desired that the offence dealing with matrimonial dispute if voluntarily compromised, be used as an instrument for a peaceful co-existence of the couple and harmony in the society. If that ratio shall be followed in a different context with universal application then terror sticken victims will appear before the Court to make statement by affidavit or otherwise for effecting a compromise which, in its legal sense, may appear to be so but not in true sense and that may lead to quashing of criminal proceedings even involving heinous offences like murder, rape, dacoity and in such cases Court cannot make a distinction of the nature and gravity of the offences if compromise shall be the sole criteria to quash the criminal proceedings. If that is the only criteria to be considered for quashing of criminal proceeding, then it shall lead to a chaotic situation in the society where trend of criminality is growing day by day at the cost of personal safety and social security of the individuals living in this Country. On the other hand, the considered view of the Apex Court is aptly aropos to the matrimonial dispute and criminal cases arising between the spouses and their in-laws and relatives. Provision in Hindu Marriage Act mandates to the Court to make repeated effort for conciliation. Provision in Family Courts Act provides conciliators of effort for amicable settlement of disputes. Offences under Section 498-A, I.P.C. was added in the Penal Code at a later stage and after coming into force of the Code and may be for that reason Section 498-A, I.P.C. does not find its place in the categories of offences enlisted either under subsection (1) or Sub-section (2) of Section 320 of the Code. Be that as it may, ratio in the case of B. S. Joshi (supra) has the force of law to take care of the situation by invoking of inherent power, as and when shall be found invokable in such matrimonial dispute turn to criminal cases.
10. The aforesaid discussion is with a view to dispose of the contention raised on behalf of the petitioners and not with a view to adjudicate the dispute on merit of the alleged offence under Section 307, I.P.C. Therefore, at appropriate stage of the Criminal Proceeding petitioners can argue for a discharge or framing of charge for a lesser offence and if such offence shall be found to be compoundable and if the injured shall volunteer to compound the offence, then that course is left to be adopted by the parties. When the offence is not compoundable and when this Court does not find it necessary in the ends of justice to quash the criminal proceeding, therefore, the application under Section 482, Cr.P.C. is rejected and consequently the Criminal Misc. Case is dismissed.