Madras High Court
N.Shenbagaraj vs The Inspector Of Police on 18 June, 2014
Author: G.M.Akbar Ali
Bench: G.M.Akbar Ali
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18.06.2014 CORAM THE HONOURABLE Mr.JUSTICE G.M.AKBAR ALI Crl.O.P.(MD)No.6718 of 2014 1.N.Shenbagaraj 2.N.Muthaparanam ... Petitioners Vs. The Inspector of Police, All Women Police Station, Nilakkottai, Dindigul District (Crime No.17 of 2008) ... Respondent PRAYER Petition is filed under Section 482 of the Code of Criminal Procedure, to set aside the order passed in Crl.M.P.No.147 of 2013 in Crl.A.No.3 of 2010, dated 21.11.2013 on the file of the learned Additional Sessions Judge, Dindigul. !For Petitioners : Mr.G.Thalaimutharasu ^For Respondent : Mr.A.P.Balasubramani, Government Advocate :ORDER
This Petition is filed to set aside an order passed in Crl.M.P.No.147 of 2013 in Crl.A.No.3 of 2010, dated 21.11.2013 on the file of the learned Additional Sessions Judge, Dindigul.
2.The petitioners, who are the appellants in Criminal Appeal in Crl.A.No.3 of 2010, before the learned Additional Sessions Judge, Dindigul, filed an application under Section 320(8) of Cr.P.C., to discharge / acquit them by recording compromise between the parties. The same was dismissed and therefore they are before this court. A case was registered against the petitioners on the complaint given by one Durgadevi, the wife of the 1st petitioner, for the offences under Section 498(A), 506 (i) of IPC and r/w. Section 4 of Tamil Nadu Prohibition of Harassment of Women Act. The case has been investigated in Crime No.17 of 2008 and a charge sheet has been filed which was taken on file in C.C.No. 397 of 2008, by the leaned Judicial Magistrate, Nilakottai. After an elaborate enquiry and on appreciation of evidence, the trial Court convicted the petitioners, who are accused 1 and 3, for an offence under Section 498A , 506(i) and also under Section 4 of Tamil Nadu Prohibition of Harassment of Women Act. They were imposed with a sentence of 2 years Rigorous Imprisonment and a fine of Rs.3000/-. Against which, the petitioners preferred an appeal as stated above.
3.The Appeal was heard and a Judgement was delivered on 9.6.2010 and conviction was confirmed but the sentence was modified and thereby in lieu of imprisonment, an additional fine was imposed. However the Petitioners have filed a petition in Crl.M.P.No,147 of 2013 to set aside the said sentence and fine and acquit the petitioners / accused as the matter was compromised.
4. The defacto complainant was also examined, who would state that there was a compromise between the parties and unless the sentence is set aside or the petitioners are acquitted, she could not lead a peaceful life. However, the learned Additional Sessions Judge, Dindigul, rejected the application stating that an offence under Section 498(A) is not a compoundable offence. Against which, the present Criminal Original Petition is filed under Section 482 of Cr.P.C.
5.Mr.G.Thalaimutharasu, the learned counsel for the petitioners would submit that there are catena of decisions rendered by this Court as well as by the Hon'bnle Supreme Court that even non-compoundable offences could be compromised, when it appears genuine and when the parties want to lead a peaceful life. More particularly, in the matter of family disputes, the Courts have entertained such compromise to protect the institution of marriage and in support of his contention, the learned counsel relied on Judgment of the Hon'ble Apex Court reported in 2000(3) SCC 693 (G.V.Rao Vs. L.H.V.Prasad & Ors.).
6. The learned Government Advocate (crl.sisde) would submit that after delivering the Judgment in Criminal Appeal, the Court below has become functus officio and the Court cannot entertain an application to set aside the conviction and sentence imposed. He also pointed out that the Criminal Crl.M.P., itself is not maintainable before the court below.
7. I have heard the learned counsel appearing on either side and perused the materials available on record.
8. Entertaining or encouraging an amicable settlement of family disputes between the spouse in the interest of justice, is well settled by the Hon'ble Supreme Court in a Judgment reported in 2000(3) SCC 693 (cited supra) where it has been held as follows:-
"12.There has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their "cases" in different courts."
9. Following the said Judgment, there are catena of Judgments, where the Hon'ble Supreme Court has intervened and quashed the criminal proceedings or set aside the conviction and sentence, even in non-compoundable offences but relating to matrimonial disputes. In the Judgment of the Hon'ble Supreme Court reported in 2003 (4) SCC 675 (B.S.Joshi and Others Vs. State of Haryana and Another), the Hon'ble Supreme Court has held that the High Court in exercise of its inherent Power under Section 482, can quash the criminal proceedings in a matrimonial disputes. In an yet another Judgment of the Hon'ble Apex Court reported in (2013 (2) MLJ (Crl.) 736 (SC) (Jitendra Raghuvanshi and Others Vs. Babita Raghuvanshi and Another) it has been held as follows:-
"10. As stated earlier, it is not in dispute that after filing of a complaint in respect of the offences punishable under Sections 498A and 406 of IPC, the parties, in the instant case, arrived at a mutual settlement and the complainant also has sworn an affidavit supporting the stand of the appellants. That was the position before the trial Court as well as before the High Court in a petition filed under Section 482 of the Code. A perusal of the impugned order of the High Court shows that because the mutual settlement arrived at between the parties relate to non-compoundable offence, the court proceeded on a wrong premise that it cannot be compounded and dismissed the petition filed under Section 482. A perusal of the petition before the High Court shows that the application filed by the appellants was not for compounding of non-compoundable offences but for the purpose of quashing the criminal proceedings."
10. However, the present Criminal Original Petition is filed to set aside an order passed in Crl.M.P.No.147 of 2013 in Crl.A.No.3 of 2010, dated 21.11.2013, wherein the lower appellate Court after rendering its Judgment in 2010 has refused to entertain an application for recording a compromise and set aside the sentence passed in 2013. Whether the Court below has jurisdiction to entertain such application is questioned by the prosecution. Such a question was not raised by the Court below, when it entertained the application. However, the rejection was on the ground that an offence under Section 498(A) of I.P.C., is not compoundable.
11. At the out set, this Court can hold that such conclusion though technically right but on the principles laid down by the Hon'ble Supreme Court is not correc as a compromise can be effected even in non-compoundable offences in the case of matrimonial disputes. In any event, this Court as well as the Supreme Court have unilateral opinion that the powers under Section 482 of Cr.P.C.., can be invoked to render justice. For a trial Court, there is always a bar under Section 320 of Cr.P.C., Therefore, the Court below, after delivering its Judgment in 2010 became functus officio to entertain an application for compromise in cases which are not compoundable even involving matrimonial disputes. The appropriate forum would be the High Court by invoking its power under Section 482 of Cr.P.C., The present application is filed under Section 482 of Cr.P.C., to set aside the order passed by the lower appellate Court. To meet the ends of justice, this Court is of the view, the same prayer can be modified into 'to set aside the sentence based on the compromise arrived at between the parties.'
12.In the result, the Criminal Original Petition is allowed and the conviction and sentence passed in Crl.M.P.No.147 of 2013 in Crl.A.No.3 of 2010, dated 21.11.2013 on the file of the learned Additional Sessions Judge, Dindigul, is set aside and the compromise entered between the parties is recorded.