Rajasthan High Court - Jodhpur
Girdhari Singh & Anr vs State on 17 May, 2018
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 869 / 2015
1. Girdhari Singh son of Shri Lal Singh, by caste Rajput,
resident of Opposite Bhutton ka Kuwa, Gajner Road, Bikaner.
2. Ratan Lal, son of Shri Dana Ram, by caste Rao, resident of
Nohar, at present Railway Colony, Lalgarh, Bikaner.
(Both at present in District Jail, Bikaner)
----Petitioners
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Petitioner(s) : Mr. Vikas Bijarnia
For Respondent(s) : Mr. Rajesh Bhati, P.P., for the State
For Complainant : Mr. Rajak K. Haidar
_____________________________________________________
HON'BLE MR. JUSTICE P.K. LOHRA
Order 17/05/2018 Accused-petitioners have preferred this revision petition under Section 397/401 Cr.P.C. to assail judgment dated 30.07.2015, passed by Additional Sessions Judge No.3, Bikaner (for short, 'learned appellate Court') to the limited extent of affirming judgment and order rendered by Special Additional Chief Judicial Magistrate (PCPNDT Act Cases), Bikaner (for short, 'learned trial Court) by its order dated 28.01.2015, convicting the petitioners for offence under Sections 326 or 326/34 IPC.
Learned trial Court, by its verdict dated 28.01.2015, convicted both the petitioners for offence under Sections 326 or 326/34, 325, 323, 341 IPC and sentenced them as under:-
(2 of 11) [CRLR-869/2015] S.No. Section Rigorous/Simple Fine (Rs.) In default of Imprisonment payment of fine to further undergo 1 326 or Three years' RI 2,000/- Six months' 326/34 additional imprisonment
2. 325 IPC Two years' RI 1,000/- Three months' additional imprisonment
3. 323 IPC Six months' SI - ---
4. 341 IPC Three months' SI - ----
All the sentences were ordered to run concurrently. The learned appellate Court by its judgment dated 30.07.2015 modified the verdict of learned trial Court, and acquitted the petitioners for offence under Section 341, 323, 325 IPC through compromise except offence under Section 326 or Section 326/34 IPC and reduced the sentence from three years' rigorous imprisonment to one year's rigorous imprisonment with fine of Rs.2000/-, and in default of payment of fine to undergo three months' additional imprisonment.
The facts in brief are that on 15.09.2001 at 9.30 PM complainant Gordhan Singh lodged a report before SHO, Police Station Naya Shahar, Bikaner that on that day in the evening when he went to meet his friend Yogesh at New Railway Colony in Bikaner his friend was not there. At that time, Girdhari Singh, Ratan Singh, Nirwan and three other persons, to whom he knows by face, were found there taking liquor. They called him using abusive language. While he was returning Girdhari Singh suddenly came to him and threw a bottle on his face and also pushed him, (3 of 11) [CRLR-869/2015] as such, he fell down. The other accused persons were also called and they too gave him beatings with fists & bows due to which he sustained injuries on his person. On his raising hue and cry, his friend Rajesh Vyas and Hadman came there and intervened. On the basis of report, police registered a case under Sections 341, 323, 147 IPC and started investigation. After completion of investigation, the police filed challan against present petitioners and Rajendra Singh for offence under Sections 341, 323, 325 and 326/34 IPC. During trial, Rajendra Singh died, therefore, proceedings abated against him. However, charge has been framed against petitioners for the offence, as stated above, and on their denial they were put on trial.
The prosecution, for substantiating the allegations against petitioners, examined six witnesses and also produced 11 documents. After conclusion of evidence of the prosecution, statements of accused-petitioners were recorded under Section 313 Cr.P.C. They denied the allegations levelled against them and stated that they are innocent persons and a false case has been foisted against them.
Learned trial Court, thereafter, heard final arguments and by its judgment dated 28.01.2015 convicted the petitioners for the aforesaid offence and sentenced them as stated above. The learned appellate Court, by its judgment dated 30.07.2015, acquitted the petitioners for offence under Sections 341, 323, 325 IPC except offence under Sections 326 or 326/34 IPC and sentenced them, as stated above.
(4 of 11) [CRLR-869/2015] Learned counsel for the petitioners submits that during pendency of this revision petition, petitioners and complainant sorted out their dispute and entered into compromise, which is duly verified by the Deputy Registrar (Judicial), therefore, learned counsel submits that for doing substantial justice in the matter for offence under Sections 326 or 326/34 IPC may be compounded. Lastly, learned counsel has prayed for upsetting the verdicts of both the Courts below in the interest of justice. The compromise deed, in vernacular, reads as under :
^^vkilh jkthukek eSa xkso/kZu flag iq= Jh Hkjrflag] tkfr jktiwr] mez 37 o"kZ] is"kk odkyr fuoklh loksZn; cLrh chdkusj vki fxj/kkjh iq= ykyflag] tkfr jktiwr] mez 53 o"kZ] fuoklh HkqVVksa ds dqvka ds lkeus] xtusj jksM] chdkusj ,oa jruyky iq= nkukjke] tkfr jko mez 48 o"kZ] fuoklh uksgj gky jsYos dksyksuh] chdkusj jktLFkku ds i{k esa jkthukek fy[k nsrk gwa fd eSus vkids f[kykQ iqfyl Fkkuk chdkusj esa eqdnek ntZ djok;k Fkk ftlesa iqfyl Fkkuk chdkusj }kjk vki fxj/kkjh o jrukyky ds f[kykQ /kkjk 326] 323] 325] 341@34 Hkkjrh; n.M lafgrk ds vUrxZr Jheku fof"k'B vij eq[; U;kf;d eftLVªsV] chdkusj ds le{k vkjksi i= is"k fd;k FkkA ftlesa Jheku ,-lh-ts-,e- lkgc chdkusj us vki fxj/kkjh o jruyky dks QkStnkjh izdj.k la[;k 11@2015 fu.kZ; fnukad 28-01-2015 esa ltk;kc fd;k x;k Fkk rFkk vki }kjk QSlys ds f[kykQ ekuuh; vij lS"ku U;k;k/kh"k la[;k 3] chdkusj ds le{k vihy is"k djus ij vihy esa /kkjk 323] 325] 341 vkbZihlh esa jkthukek rLnhd dj /kkjk 326@34 vkbZihlh esa ltk cjdjkj j[kh gSA fd mDr izdj.k esa gekjk Hkfo'; esa e/kqj laca/k cuk;s j[kus ds fy;s jkthukek gks x;k gS ,oa vki o esjs e/; dksbZ eu eqVko ugha jgk gS vc geus viuh bZPNk ls vkids i{k esa jkthukek fy[k dj ns jgs gSA fd jkthukek djus ds fiNs gekjs mij fdlh izdkj dk ncko Hk; ugha gS ,oa u gh fdlh izdkj dksbZ foRrh; ;k vkfFkZd ykHk gh geus izkIr fd;k gS geus fcuk fdlh ncko o izfrQy ds ,d bykdk ds gksus o Hkfo'; esa e/kqj laca/k cus jgs ,ao fdlh izdkj dk eueqVko ugha jgus mDr jkthukek iw.kZ gks"k gokl esa fu'ikfnr fd;k gS o vc ge ,dy ihB QkStnkjh fuxjkuh la- 869@15 jkthukek ds vk/kkj ij fuLrkfjr dj vkxs ugha pykuk pkgrs gS o fxj/kkjh o jruyky dks cjh fd;k tkrk gS rks ges dksbZ vkifRr ugh gksxhA fygktk ;g jkthukek vkt jkst geus vius iw.kZ gks"k gokl esa fcuk fdlh u"ks irs ds fcuk fdlh ncko ds viuh iw.kZ rUnq:Lrh gkykr es afuEu lk{khx.k ds le{k i< lqu o lksp le>dj vius gLrk{kj dj fn;s gS tks lun jgs ,oa oDr t:jr ij dke vkosA bfr fnukad 25-04-2018 fedj ifjoknh vkgr lgh@& ¼xkso/kZu flag½ fedj vfHk;qDrx.k lgh@& 1- fxj/kkjh lgh@& 2- jruyky** (5 of 11) [CRLR-869/2015] Per contra, learned Public Prosecutor has vehemently opposed the revision petition. It is submitted by learned Public Prosecutor that offence under Sections 326 or 326/34 is not compoundable at the stage of revision, after recording of concurrent findings of guilt by two Courts below.
Mr. Rajak K. Haidar, learned counsel for the complainant has frankly conceded that the complainant has sorted out dispute with the accused-petitioners and now both the parties want to live in peace. He, therefore, submits that the complainant is having no objection/grudge if the conviction recorded by learned trial Court and affirmed by appellate Court is reversed and upset by this Court.
I have heard learned counsel for the parties, perused impugned judgments and scanned the material available on record.
As the compromise has been arrived at between rival parties to compound the offence, may be at the stage of consideration of this revision petition, I feel inclined to exercise powers under sub-sec.(6) of Section 320 Cr.P.C. for allowing the complainant to compound offence under Sections 326 or 326/34 IPC. At this stage, it is also relevant that Sections 326 or 326/34 IPC are not compoundable within the four corners of Section 320 Cr.P.C. This sort of situation has prompted the Court to rely upon the factum of compromise between rival parties. Apart from that, a very vital fact that incident is more than 16 years old in the instant case, I feel inclined to invoke inherent powers in the backdrop of peculiar facts and circumstances ex-debito justitiae, (6 of 11) [CRLR-869/2015] i.e., to do real and substantial justice for the administration of which alone the Courts exist.
My view is also fortified by a decision of Supreme Court in Gian Singh Vs. State of Punjab [(2012) 10 SCC 303], wherein while examining the relative scope of inherent power of High Court under Section 482 Cr.P.C. vis-a-vis non-compoundable offences mentioned in Section 320 Cr.P.C., in the wake of compromise arrived at between the parties, the Court observed:
"The question is with regard to the inherent power of the High Court in quashing the criminal proceedings against an offender who has settled his dispute with the victim of the crime but the crime in which he is allegedly involved is not compoundable under Section 320 of the Code.
Section 482 of the Code, as its very language suggests, saves the inherent power of the High Court which it has by virtue of it being a superior court to prevent abuse of the process of any court or otherwise to secure the ends of justice. It begins with the words, "nothing in this Code" which means that the provision is an overriding provision. These words leave no manner of doubt that none of the provisions of the Code limits or restricts the inherent power. The guideline for exercise of such power is provided in Section 482 itself i.e. to prevent abuse of the process of any court or otherwise to secure the ends of justice. As has been repeatedly stated that Section 482 confers no new powers on the High Court; it merely safeguards existing inherent powers possessed by the High Court necessary to prevent abuse of the process of any court or to secure the ends of justice. It is equally well settled that the power is not to be resorted to if there is specific provision in the Code for the redress of the grievance of an aggrieved party. It should be exercised very sparingly and it should not be exercised as against the express bar of law engrafted in any other provision of the Code.
(7 of 11) [CRLR-869/2015] In different situations, the inherent power may be exercised in different ways to achieve its ultimate objective. Formation of opinion by the High Court before it exercises inherent power under Section 482 on either of the twin objectives,
(i) to prevent abuse of the process of any court, or
(ii) to secure the ends of justice, is a sine qua non.
In the very nature of its constitution, it is the judicial obligation of the High Court to undo a wrong in course of administration of justice or to prevent continuation of unnecessary judicial process. This is founded on the legal maxim quando lex aliquid alicui concedit, conceditur et id sine qua res ipsa esse non potest. The full import of which is whenever anything is authorised, and especially if, as a matter of duty, required to be done by law, it is found impossible to do that thing unless something else not authorised in express terms be also done, may also be done, then that something else will be supplied by necessary intendment. Ex debito justitiae is inbuilt in such exercise; the whole idea is to do real, complete and substantial justice for which it exists. The power possessed by the High Court under Section 482 of the Code is of wide amplitude but requires exercise with great caution and circumspection.
It needs no emphasis that exercise of inherent power by the High Court would entirely depend on the facts and circumstances of each case. It is neither permissible nor proper for the court to provide a straitjacket formula regulating the exercise of inherent powers under Section 482. No precise and inflexible guidelines can also be provided.
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 (8 of 11) [CRLR-869/2015] 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."
The Court further dilated on certain offences, which are not private in nature and have serious impact on society and issued a word of caution not to quash criminal proceedings, criminal complaints, or FIRs in such matters. While segregating heinous and serious offences of mental depravity, murder, rape, dacoity etc., or under the special statutes like Prevention of Corruption Act, or offences committed by public servants while working in their capacity as public servants, the Court held:
"Where the High Court quashes a criminal proceeding having regard to the fact 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 uner IPC of moral turpitude under special statutes, like the (9 of 11) [CRLR-869/2015] Prevention of 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."
Upon examining the ratio decidendi of judgment in Gian Singh (supra), in my considered opinion, on the strength of compromise arrived at between the parties, I feel persuaded to upset the order passed by learned trial Court as well as order of learned appellate Court affirming the conviction of petitioners for offence under Section 326 or 326/34 IPC. This sort of situation has obviously entailed acquittal of both the petitioners for offence under Section 326 or 326/34 IPC At this juncture, the Court cannot eschew some of the facts of great significance. Undeniably, in the instant matter, FIR was lodged by complainant in the year 2001 to set the law (10 of 11) [CRLR-869/2015] enforcement agency into motion and the investigating agency after thorough investigation submitted charge-sheet against the accused-petitioners. Later on, the learned trial Court took all the pains in completing trial with indictment of both the accused- petitioners for aforesaid offences. The appellate Court has also examined the matter de novo and, concurring with the findings and conclusions of learned trial Court, affirmed the judgment of conviction.
The settlement of dispute between rival parties having come to an offing during pendency of this revision petition, after a lapse of more than one and a half decades, is obviously a cause of concern, which cannot be excused by expressing mere indignation for the conduct of rival parties. Therefore, considering the gestation period of more than 16 years, passed during trial, appeal and revision before this Court, and indolence or dormancy of rival parties in sorting out their dispute, it would be just and appropriate to saddle the accused-petitioners with some pecuniary cost in the form of contribution to legal aid, which may be provided to accused persons having no sufficient means to engage a lawyer or pleader for defence.
Considering the facts and circumstances of the instant case, petitioners are directed to contribute a sum of Rs.20,000/- towards legal aid by depositing a sum of Rs.10,000/- each with Rajasthan State Legal Services Authority within a period of fortnight from the date of receipt of this order.
The upshot of above discussion is that instant revision petition is allowed and the impugned judgment affirming the (11 of 11) [CRLR-869/2015] conviction of petitioners for offence under Sections 326 or 326/34 IPC is hereby quashed and set aside subject to their depositing the aforesaid amount with the Rajasthan State Legal Services Authority. In case requisite amount is not deposited by the petitioners within the stipulated period, as ordered, the Rajasthan State Legal Services Authority shall be at liberty to move this Court for appropriate orders.
The petitioners are on bail, and therefore, they need not to surrender.
(P.K. LOHRA)J. Bharti/70