Allahabad High Court
Shyam Deo Yadav And Another vs State Of U.P. on 21 November, 2019
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 42 AFR Case :- CRIMINAL APPEAL No. - 450 of 1998 Appellant :- Shyam Deo Yadav and others Respondent :- State of U.P. Counsel for Appellant :- A.K.Awasthi,Manish Tiwari Counsel for Respondent :- Govt. Advocate Hon'ble Chandra Dhari Singh,J.
1. Present Criminal Appeal is directed against the judgment and order dated 04.03.1998 passed by IInd Additional Sessions Judge, Ghazipur in S.T. No.150 of 1996, by which the appellants-accused were convicted for offence punishable under Section 3(1) (X) of S.C. & S.T. Act. He was sentenced to undergo imprisonment for four years' R.I. and pay fine of Rs.2000/-, in default of payment of fine, the appellants have to undergo additional imprisonment for three months.
2. Brief facts of the case are that on 22.07.1995 at about 9:30 A.M., accused persons Dashrath, Shyamdev, Channer and Mukkhu were grazing their buffaloes in the filed of sugarcane of Vikram, informant. When mother of the informant saw, she opposed them for grazing their buffaloes. On her objection, all the accused persons started quarrelling with the mother of the informant and they started beating her with their respective weapons like lathi and danda. After hearing hue and cry of his mother, he and his brother Vishwanath came at the place of incident and tried to save their mother then all the accused persons had also beaten them. Thereafter after hearing hue and cry many people of their village came. All the accused persons had gone giving threat. The informant belongs to Scheduled Caste community. The informant lodged a first information report about the incident on the same day at 11:10 P.M. at police station. The informant Vikram, his brother Vishwanath and his mother Barti Devi were medically examined by Doctor on 22.07.1995 at 1:00 P.M. After completing investigation a chargesheet was filed against all the accused persons before court concerned.
3. The Second Additional Sessions Judge, Ghazipur framed charges for commission of offence under Sections 323, 504 and 506 I.P.C. and Section 3(1) (X) of S.C.& S.T. Act. All the accused persons denied charges levelled against them and pleaded for trial.
4. For proving the charges against the appellants the prosecution examined Vikram, the informant, P.W.1, Barti Devi P.W.2, Vishwanath P.W.3, Sofi P.W.4, Mohit P.W.5 as witnesses of facts.
5. The trial court has examined prosecution witnesses, statements of accused persons under Section 313 Cr.P.C. and evidences.
6. After examining the prosecution witnesses, statements of accused persons and perusing the evidences on record, the trial court has given finding that offences under Section 323 and 504 I.P.C. and Section 3(1) (X) S.C. & S.T. Act are proved but on the compromise as the offences punishable under Sections 323 and 504 I.P.C. are compoundable, therefore, all the appellants-accused were acquitted from the charges under Sections 323 and 504 I.P.C. The trial court has also given finding that since offence under Section 3(1) (X) S.C. & S.T. Act is not compoundable, therefore, all the appellants-accused persons were convicted under Section 3(1) (10) S.C.& S.T. Act and they were sentenced for four years R.I. with fine of Rs.2000/- from each appellants. In default of payment of fine of Rs.2000/- to undergo additional imprisonment for three months to each appellants. The trial court had given compensation of Rs.1000/- to all the injured persons.
7. Learned counsel for the appellants has submitted that the court below has not considered the facts that main offence has been compromised and all the appellants were acquitted from the charges charges under Sections 323 and 504 I.P.C. on the ground that the parties entered into compromise then offence Section 3(1) (X) S.C. & S.T. Act ought to have been compromised. Therefore, conviction under Section 3(1) (X) S.C. & S.T. Act is bad in law.
8. Admittedly and undisputedly, appellants were charge-sheeted and charges were framed against them for offences punishable under Section 323, 504 IPC read with Section 3(1)(X)of SC & ST Act. An application under Section 320(2) was filed by the complainant for compounding the offence punishable under Section 323, 504 IPC read with Section 3(1)(X) of SC & ST Act on the basis of a compromise entered into between the complainant and the accused appellants. The Additional Sessions Judge, Ghazipur after considering the application and the compromise entered into betwen the parties allowed the said application vide order dated 04.03.1998 after satisfying himself that the application for compounding the offence has been made voluntarily and bona fidely and, therefore, it deserves to be granted but the court concerned refused to compound the sentence punishable under Section 3(1)(X) of SC & ST Act considering the provisions of Section 320 (8) of Cr.P.C., which provides that the composition of an offence shall have the effect of an acquittal of the accused with whom the offence has been compounded. The effect is automatic. Wherever composition of an offence takes place it has instantaneous effect of statutory acquittal of the accused. Hon'ble Supreme Court in the case of Rajinder Singh Vs. State; 1980 SC 1200 held that once permission is granted to compound the offence, effect would be acquittal of accused in respect of offence compounded, by virtue of Section 320(8) of Cr.P.C.
9. In the instant case, the trial court has refused to compound the offence punishable under Section 3(1)(X) of SC & ST Act on the ground that the said offence is not compoundable. At this juncture, it is worth to mention here itself a decision of the Hon'ble Apex Court in the case of J.Ramesh Kamath and Others Vs. Mohana Kurupt and Others, reported in (2016) 12 SCC 179, wherein the Hon'ble Apex Court has laid down certain principles as to under what circumstances the Court can quash the proceedings or compound the offences even in respect of a non-compoundable offences, wherein it has been held as under:
"Held, power vested in High Court under S.482 is not limited to quashing proceedings within ambit and scope of S.320 of Cr.P.C., - In Gian Singh, (2012) 10 SCC 303, it was clearly expounded that quashing of criminal proceedings under S.482 of Cr.P.C., could also be based on settlements between private parties, and could also be on a compromise between the offender and victim - Only that, the above power did not extend to crimes against the society - Further, jurisdiction vested in High Court under S.482 Cr.P.C., for quashing criminal proceedings was held to be exercisable in criminal cases having an overwhelming and predominatingly civil flavour, particular offences arising from commercial, financial, mercantile, civil, partnership, or such like transactions, or even offences arising out of matrimony relating to dowry, etc., or family disputes where wrong is basically private or personal. In all such cases, parties should have resolved their entire dispute by themselves, mutually."
10. The Hon'ble Apex Court has reiterated the principles of law laid down in the case of Gian Singh Vs. State of Punjab and another reported in (2012) 10 SCC 303, wherein it has been observed that the Court can exercise the power under Section 482 of Cr.P.C. depending upon the facts and circumstances of each case and compound the offence. In the case of Narinder Singh and others Vs. State of Punjab and another reported in (2014) 6 SCC 466, it has been observed 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 enumerated in Section 320(2) of the Code, compounding is permissible but it requires the approval of the Court. Insofar 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 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 the 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, insofar as power of 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 v. State of Punjab. 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 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, Nikhil Merchant, Manoj Sharma and Shiji 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 this Court has compounded the non-compoundable offences indirectly? We do not think so. There does exist the distinction between compounding of an 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."
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 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 Preventionof 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 flavour 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 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 a 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 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 predominatingly civil flavour 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 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. Bearing in mind the above facts and circumstances and on perusal of the charge sheet material, though the offences are punishable under Section 3(1)(X) of SC & ST Act, the said offences are non-compoundable in nature. But as could be seen from the records, the parties have compromised the matter amicably. Therefore, in my opinion, if the said compromise is allowed by keeping in view the above said decision endorsed, the parties can lead a cordial life hereinafter. The said alleged offences are not punishable with death or imprisonment for life and both the complainants and the accused are intending to join their hands and compound the offence and no injuries have also been caused to the body of the complainant.
14. Therefore, keeping in view the above said facts and circumstances, I am of the opinion that the instant criminal appeal is allowed.
15. For the reasons stated above and the fact that the incident took place on 12.07.1995 and more than 25 years have lapsed, the sentenced awarded by the trial court under Section 3(1)(X) of the SC & ST Act is quashed.
16. Appellants are on bail. They need not surrender, in case they are not wanted in any other case. Their bail bonds are hereby cancelled. Sureties are discharged from their liability.
17. Record of the lower court, if summoned, shall be remitted back to the court concerned forthwith along with the copy of this order.
Order Date :- 21.11.2019 Asha