Karnataka High Court
Ambu S/O Malkanna Kumbar And Ors vs The State & Anr on 25 April, 2016
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH APRIL, 2016
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
CRIMINAL PETITION NO.200454/2016
C/W.
CRIMINAL APPEAL NO.3605/2011
IN CRL.P.NO.200454/2016
BETWEEN
1. AMBU
S/O MALKANNA KUMBAR
AGE: 30 YEARS, OCC: COOLIE
R/O RAJIV GANDHI NAGAR
KALABURAGI
2. SHANU
S/O MALKANNA KUMBAR
DIED ON 5.11.2013
3. SHANKAR S/O BHIMSHA
AGE: 32 YEARS, OCC: COOLIE
R/O RAJIV GANDHI NAGAR
KALABURAGI
4. SHIVU S/O NANDU
AGE: 30 YEARS, OCC: COOLIE
R/O RAJIV GANDHI NAGAR,
KALABURAGI
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5. BABU @ BABURAO S/O MAILARI
AGE: 31 YEARS, OCC: COOLIE
R/O RAJIV GANDHI NAGAR
KALABURAGI
... PETITIONERS
(BY SRI B.K.HIREMATH, ADV.)
AND
1. THE STATE THROUGH CHOWK P.S.
KALABURAGI- 585 103
2. UMESH S/O GHEMU RATHOD
AGE: 41 YEARS, OCC: GOVT. SERVANT
R/O NEAR DADE PEER DARGA,
RAJIV GANDHI NAGAR
FILTER BED ROAD,
KALABURAGI- 585 103
... RESPONDENTS
(BY SRI. PRAKASH YELI, ADDL. SPP FOR R1;
SRI. K.D BHANTANOOR, ADV. FOR R2)
THIS CRL.P IS FILED U/S. 482 OF CR.P.C. PRAYING
TO, CALL FOR THE RECORDS AND ALLOW THE CRIMINAL
PETITION FILED BY THE ACCUSED PETITIONERS AND SET
ASIDE THE JUDGEMENT PASSED BY THE II
ADDL.SESSIONS JUDGE AT KALABURAGI, IN SPL.CASE
No.19/ 2010 DATED 6.6.2011 AND SENTENCE ORDER
PASSED ON 7.6.2011 FOR OFFENCE U/SEC.148 OF IPC
INCLUDING SEC.324 OF IPC. THIS HON'BLE COURT BE
PLEASED TO SET ASIDE THE CONVICTION ORDER IN
OFFENCE U/SEC. 148 OF IPC PASSED BY II ADDL.
SESSIONS JUDGE, KALABURAGI IN SPL.CASE No.19/2010.
**********
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IN CRL.A. NO.3605/2011
BETWEEN
1. AMBU
S/O MALKANNA KUMBAR
AGE: 25 YEARS, OCC: COOLIE
R/O RAJIV GANDHI NAGAR
GULBARGA
2. SHANU
S/O MALKANNA KUMBAR
AGE: 28 YEARS, OCC: COOLIE
R/O RAJIV GANDHI NAGAR
GULBARGA
3. SHANKAR S/O BHIMSHA
AGE: 27 YEARS, OCC: COOLIE
R/O RAJIV GANDHI NAGAR
GULBARGA
4. SHIVU S/O NANDU
AGE: 25 YEARS, OCC: COOLIE
R/O RAJIV GANDHI NAGAR,
GULBARGA
5. BABU @ BABURAO S/O MAILARI
AGE: 26 YEARS, OCC: COOLIE
R/O RAJIV GANDHI NAGAR
GULBARGA ... APPELLANTS
(BY SRI B.K.HIREMATH, ADV.)
AND
THE STATE THROUGH
CHOWK POLICE STATION, GULBARGA ... RESPONDENT
(BY SRI. PRAKASH YELI, ADDL. SPP)
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THIS CRL.APPEAL IS FILED U/S. 374(2) OF THE
CR.P.C. PRAYING TO, ALLOW THE APPEAL AND SET ASIDE
THE JUDGMENT AND ORDER PASSED IN SPECIAL CASE
NO. 19/2010 ON THE FILE OF II ADDL. SESSIONS JUDGE
AT GULBARGA DATED 06.06.2011 CONVICTING THE
APPELLANT / ACCUSED FOR THE OFFENCE P/U/S. 148
AND 324 OF IPC AND THE APPELLANT / ACCUSED NO.1
IS SENTENCED TO UNDERGO S.I. FOR A PERIOD ONE
AND HALF YEARS AND TO PAY A FINE OF RS. 5,000/-. IN
DEFAULT, HE SHALL UNDERGO S.I. FOR A PERIOD OF
NINE MORE MONTHS FOR THE OFFENCE P/U/S. 148 OF
IPC. FURTHER THE APPELLANT / ACCUSED IS
SENTENCED TO UNDERGO S.I. FOR A PERIOD OF ONE
AND HALF YEAR AND TO PAY A FINE OF 5,000/-. IN
DEFAULT, HE SHALL FURTHER UNDERGO S.I. FOR A
PERIOD OF NINE MORE MONTHS FOR THE OFFENCE
P/U/S. 324 OF IPC.
THESE PETITION AND APPEAL COMING ON FOR
ORDERS THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The petitioners 1, 3, 4 and 5 and respondent No.2 in Criminal Petition No.200454/2016, and appellants 1, 3, 4 and 5 in Criminal Appeal No.3605/2011 are present before the Court.
2. Sri K.D. Bhantnur, learned counsel who is present before the Court has filed vakalath for R2 and identified himself as the counsel for R2.
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3. The petitioners have filed both Criminal Petition and Criminal Appeal, challenging the judgment of conviction and sentence passed against them in Spl. Case No.19/2010 on the file of the II Addl. Sessions Judge at Kalaburagi, wherein the learned Sessions Judge has convicted the accused/appellants along with another accused by name Shanu, who is reported to be dead during the pendency of these proceedings.
4. In fact, the petitioners in Criminal Appeal No.3605/2011 have filed an application u/s.320(2) of Cr.P.C. seeking permission of this Court to permit them to compound the offences for which the petitioners were convicted. As one of the offence i.e., Section 148 of IPC is not compoundable in nature, it appears, the petitioners have approached this Court by filing Criminal Petition No.200454/2016 u/s.482 of Cr.P.C. for quashing of the judgment and sentence passed by the Trial Court or to modify the order passed by the Trial Court.
5. The factual matrix appears to be that - the petitioners/appellants as well as the second respondent 6 belong to the same village and known to each other and due to the unpleasant situation that was occurred, the petitioners alleged to have committed the offence against the complainant.
6. It is stated by the learned counsel for the petitioners that the petitioners have already undergone the ordeal of trial and the Trial Court found that they have committed such an offence and they were convicted and sentenced accordingly for the offence punishable under Section 148 and 428 of IPC and they are acquitted so far as the other offences are concerned.
7. Though Section 148 of IPC is non compoundable in nature, but it is not a serious offence punishable with any severe punishment. Though this Court cannot permit the parties to compromise and file an application u/s.320(2) of Cr.P.C. in the said Criminal Appeal, but the Court has got vide jurisdiction to quash such proceedings or to modify such an order in order to administer complete justice between the parties. The parties have categorically stated that they have realised that the said incident has happened 7 due to some differences of opinion between the parties and due to the advice of the elders of both the families, they have decided to square up the matter and in order to facilitate them to live happily with each other in cordial relationship, I feel that the judgment of the Trial Court requires to be set aside or modified.
8. In this regard, it is worth to mention here the decision of the Hon'ble Apex Court reported in 2012 (10) SCC 303 in the case of Gian Singh Vs. State of Punjab and another, wherein, the Apex Court has held that:
"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 Section 320 of Cr.P.C. 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. Before exercise of inherent quashment power under Section 482 of Cr.P.C., High Court must have due 8 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 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 proceeding or continuation of criminal proceeding would 9 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 questions are answered in the affirmative, High Court shall be well within its jurisdiction to quash the criminal proceeding."
The specific observation made by the Hon'ble Apex Court is that the offences which are not affecting the society or the offences which are not heinous in nature and the parties have settled their dispute, if the offences are private in nature such matters can be allowed to be compromised and such proceedings can be quashed. It is also stated in the said decision that the offences arising out of the matrimonial relationship or family disputes are of similar nature in which the wrong is basically private or personal in nature and the parties have resolved their entire dispute, the High Court can quash the criminal proceedings. However, the Court must consider whether it would be unfair or contrary to the interest of justice that the criminal proceedings or continuation of criminal proceedings tantamount to abuse of process of law.
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9. On perusal of the compromise petition and the nature of the allegations made against the petitioners and the offences for which they were convicted and the petitioners and respondent No.2 are of the same village and they were known to each other and in order to live happily in future, they have decided to square up the matter. Therefore, the judgment of the Trial Court requires to be quashed or modified.
10. On perusal of the judgment which is called in question in Criminal Appeal No.3605/2011 shows that the Trial Court has convicted the accused persons for the offence punishable under Section 428, 324 and 148 of IPC, the Trial Court has sentenced them to undergo Simple Imprisonment for a term of 1 ½ years and to pay fine of Rs.5,000/- for the offence punishable under Section 148 of IPC on each count. The Court has also awarded an amount of Rs.25,000/- to be payable to the complainant out of the fine amount. As the complainant has suffered due to the act of the accused persons which was found by the Trial Court, the awarding of the compensation so far as the complainant is concerned 11 does not deserve any modification. However, the rest of the sentence passed by the Trial Court can be set aside or quashed by this Court in view of the compromise between the parties. Hence, I do not find any strong reason to reject the prayer before the Court.
11. Hence, I proceed to pass the following:
ORDER The Criminal Appeal No.3605/2011 and Criminal Petition No.200454/2015 are hereby partly allowed.
Consequently, the judgment of conviction and imposing sentence of Simple Imprisonment for a term of 1 ½ years for the offence punishable under Section 148 and 324 of IPC are hereby quashed. So far as the sentence of fine is concerned, the petitioners have already deposited the compensation to be payable to the complainant is not disturbed. So far as A2 is concerned, who is reported to be dead, the fine amount deposited by him to the extent of Rs.10,000/- shall be confiscated to the State. After payment of the compensation out of the amount deposited by the petitioners to the 12 complainant (2nd respondent) remaining amount is ordered to be refunded to the petitioners. To the said extent, the judgment of the Trial Court is modified.
Sd/-
JUDGE PL*