Madras High Court
Prabu vs State Rep. By on 27 January, 2016
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 27.01.2016
CORAM
THE HON'BLE MR.JUSTICE S.VAIDYANATHAN
Crl.O.P.(MD) Nos.406 of 2016
530 and 864 of 2016
1. Prabu
2. Chandra Mohan ... Petitioners/A1 & A2 in Crl.O.P.(MD)406 of 2016
1. Sahul @ Sahul Hameed
2. Kareem @ Abdul Kareem
3. Bazeer @ Bazeer Mohamed
4. Veeraiyah
5. Mani @ Manikandan
6. Andivel ... Petitioners/A1 to A6 in Crl.O.P.(MD)530 of 2016
Veerapandian ... Petitioner/A1 in Crl.O.P.(MD)864 of 2016
Vs.
1. State Rep. by
The Inspector of Police,
Usilampatti Town Police Station,
Madurai District.
(Crime No.490 of 2015) ... 1st Respondent / Complainant in
Crl.O.P.(MD)406 of 2016
2. P.Kasimayan ... 2nd Respondent / Defacto Complainant in
Crl.O.P.(MD)406 of 2016
1. The Inspector of Police,
Sanarpatti Police Station,
Dindigul District.
(Crime No.245 of 2015) ... 1st Respondent / Complainant in
Crl.O.P.(MD) 530 of 2016
2. P.Kembaiyah ... 2nd Respondent / Defacto Complainant in
Crl.O.P.(MD)530 of 2016
1. State Represented by
The Inspector of Police,
All Women Police Station,
Virudhunagar,
Virudhunagar District.
(Crime No.27 of 2015) ... 1st Respondent / Complainant in
Crl.O.P.(MD) 864 of 2016
2. Mariyammal ... 2nd Respondent / Defacto Complainant in
Crl.O.P.(MD) 864 of 2016
Prayer in Crl.O.P.(MD) 406 of 2016: Petition filed under Section 482 of Code
of Criminal Procedure to call for the records and quash the impugned FIR in
Crime No.490 of 2015 on the file of the 1st respondent.
Prayer in Crl.O.P.(MD) 530 of 2016: Petition filed under Section 482 of Code
of Criminal Procedure to call for the records, relating to the FIR in Crime
No.245 of 2015 on the file of the 1st respondent and quash the same.
Prayer in Crl.O.P.(MD) 864 of 2016: Petition filed under Section 482 of Code
of Criminal Procedure to call for the entire records, relating to the FIR in
Crime No.27 of 2015 on the file of the 1st respondent and quash the same
insofar as the petitioner is concerned.
!For Petitioners : M/s.Dhana Law Associates
for Mr.J.Senthil Kumaraiah
(in Crl.O.P.(MD)406/2016)
Mr.V.Kannan (in Crl.O.P.(MD)530/2016)
Mr.M.Jegadeesan (in Crl.O.P.(MD)864/2016)
^For R1 : Mrs.S.Prabha
Govt. Advocate (Crl.Side)
For R2 : Mr.S.Sabbani Karpura Jothi (in Crl.O.P.(MD)406/2016)
Mr.R.Balakrishnan (in Crl.O.P.(MD)530/2016)
Mr.S.Vijayakumar (in Crl.O.P.(MD)864/2016)
:ORDER
These petitions have been filed seeking to quash the case registered in Crime Nos.245/2015, 490/2015 and 27/2015 on the file of the 1st respondent police respectively, pursuant to the amicable settlement effected between the parties.
2. The details of cases registered against the petitioners are given in the tabular column below:
Sl. No. Case No. Crime No. Sections of Law
1. Crl.O.P.(MD) No.406 of 2016
490/2015 406, 420, 454, 294(b), 427 and 506(i) IPC, Section 4 of TNWH Act r/w Section 4 of Tamil Nadu Prohibition of Exorbitant Charging Interest Act
2. Crl.O.P.(MD) No.530 of 2016 245/2015 147, 294(b), 427 and 506(i) IPC
3. Crl.O.P.(MD) No.864 of 2016 27/2015 498(A), 494 and 506(i) IPC and Section 4 of D.P.Act
3. When these matters are taken up for hearing, the counsel for the petitioners/Accused have submitted that the accused persons and the defacto complainants have decided to settle their issues amicably among themselves. However, on perusal of the FIRs registered against the petitioners, it is seen that cases have been registered for various offences, out of which, some of the offences are non compoundable and few of them are registered under the provisions of Special Statutes. Therefore, this Court has expressed its unwillingness to accept the respective compromise memos.
4. At this juncture, the counsel for the petitioners sought permission of this Court to put forth their contention on merits irrespective of the compromise memo. The counsel for the petitioners has submitted that once the parties have entered into a compromise, then the power of this Court under Section 482 Cr.P.C. is of wide amplitude and the same can be invoked, if such quashing would meet the ends of justice. In the midst of their argument, the counsel for the petitioners has specifically drawn the attention of this Court to the specific language used in Section 482 Cr.P.C., to the effect that ?....to prevent abuse of the process of any Court or otherwise to secure the ends of justice.? Therefore, it is contended that the saving of the High Court's inherent powers is designed to achieve a salutary public purpose to the extent that a Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution.
5. On the contrary, the Government Advocate (Crl.Side) would, by relying on a judgment of this Court in V.Sekar vs. State by Inspector of Police, Central Crime Branch,Chennai Sub-Urban Police and another, reported in (2012) 2 CTC 593, submit that a declaration of law holding that a non- compoundable offence can be compounded on the ground that the parties have compromised among themselves will amount to creating a new provision in the Code, which is exclusively for the legislature to do. Such legislation cannot be made by a Judge made law. Therefore, he would further submit that this Court should restrain itself from quashing the proceedings on the ground of compromise reached between the parties in respect of non-compoundable offences.
6. Though the argument advanced by the Government Advocate (Crl.Side) looks attractive, when seen in depth, it cannot be accepted in toto, as there can be no second opinion that the Law declared by a Larger Bench of the Hon'ble Supreme Court, not only binds the High Courts and all other Courts, but also the Smaller Benches of the Hon'ble Supreme Court. It is well settled that the judgments of appellate Courts a like position to statutes. As per the proposition laid down by the Apex Court, in disputes where the question involved is of a purely personal nature, the Court should ordinarily accept the terms of the compromise even in criminal proceedings, as keeping the matter alive with no possibility of a result in favour of the prosecution is a luxury. Whereas careful consideration is required, while accepting the compromise in respect of IPC offences, as the offences committed under the penal provisions are against the State and of course, it is true that the power of the High Court in quashing a criminal proceeding or FIR or 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. This Court is aware of the fact that exercise of inherent power by the High Court would entirely depend on the facts and circumstances of each case and it is neither permissible nor proper for the Court to provide a straitjacket formula for the said purpose.
7. It is very pertinent to extract the judgment of the Hon'ble Supreme Court in the case of Gian Singh vs. State of Punjab and another, reported in (2012) 10 SCC 303, which has rendered a finding in respect of the core issue in question, by holding as under:
"The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or 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 plenitude with no statutory limitation but it has to be exercised in accord with the guideline 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 F.I.R may be exercised where the offender and 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 serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like 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 pre-dominatingly civil flavour stand on 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, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put 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 would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."
8. Arguments were advanced across the bar insofar as the precedential propriety relating to the Gian Singh's judgment and the binding nature of earlier judgments predating the three Judges' Bench decision in Gian Singh's case. This issue has already been settled by the subsequent two Judges' Bench decisions in Narinder Singh and Manish, to the effect that the judgments rendered in cases B.S.Joshi vs. State of Haryana [(2003) 4 SCC 675], Nikhil Merchant vs. CBI [(2008) 9 SCC 677] and Gian Singh are not mutually incompatible inter se and there is nothing contradictory between these judgments.
9. Taking note of the reasoning given by the Apex Court, one thing is very clear that 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, this 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 and each case will have to depend on its own facts and no hard and fast category can prescribed.
10. Thus, all the cases on hand have to be analylzed in prospective manner in line with the judgments, referred to supra. It is no doubt true that 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. If the parties are allowed to compound offences even on serious offences, criminals with money and muscle powers, may try to settle the issue by way of coercion and threat and will take the law into their own hands.
11. If the offences against women and children and the IPC offences falling under the categories, like, murder, attempt to murder, offence against unsound mind, rape, bribe, fabrication of documents, false evidence, robbery, dacoity, abduction, kidnapping, minor girl rape, idol theft, preventing a public servant from discharging of his/her duty, outrage of woman modesty, counterfeiting currency notes or bank notes, etc., are allowed to be compounded, it will surely have serious repercussion on the society, as the above mentioned list is only illustrative and not exhaustive. Similarly, any compromise between the victim and the offender in relation to the offences clubbed with Special Enactment, like Arms Act, the Prevention of Corruption Act, TNPPDL Act, TNPID 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. As held by the Apex Court, insofar the the offences arising out of matrimonial dispute, relating to dowry or the family disputes where the wrong is basically private or personal in nature, are concerned, the possibility of conviction is remote and bleak, in case the parties resolve their entire disputes amicably among themselves. This Court feels that there cannot be any compromise in respect of the heinous and serious offences of mental depravity and in that case, the Court should be very slow in accepting the compromise. If the compromise is entertained mechanically by the Court, the accused will have the upper hand. The jurisdiction of this Court may not be allowed to be exploited by the accused, who can well afford to wait for a logical conclusion. The antecedents of the accused have also to be taken into consideration before accepting the memo of compromise and the accused, by means of compromise, cannot try to escape from the clutches of law.
12. The Hon'ble Supreme Court in the case of Jitendra Raghuvanshi and others vs. babita Raghuvanshi and another, reported in (2013) 4 SCC 58, has, while dealing with the provisions of Sections 482 and 320 Cr.P.C., ruled as follows :
"The inherent powers of the High Court under Section 482 Cr.PC are wide and unfettered. It is trite to state that the power under Section 482 should be exercised sparingly and with circumspection only when the Court is convinced on the basis of material on record, that allowing the proceedings to continue would be an abuse of process of court or that the ends of justice require that the proceedings ought to be quashed. Exercise of such power would depend upon the facts and circumstances of each case and it has to be exercised in appropriate cases in order to do real and substantial justice for the administration of which alone the courts exist. Thus, the High Court in exercise of its inherent powers can quash the criminal proceedings or FIR or complaint in appropriate cases in order to meet the ends of justice and Section 320 Cr.PC does not limit or affect the powers of the High Court under Section 482CrPC.
Consequently, even if the offences are non-compoundable, if they relate to matrimonial disputes and the Court is satisfied that the parties have settled the same amicably and without any pressure, it is held that for the purpose of securing ends of justice, Section 320 CrPC would not be a bar to the exercise of power of quashing of IR, complaint or the subsequent criminal proceedings. The Institution of marriage occupies an important place and it has an important role to play in the society. Therefore, every effort should be made in the interest of the individuals in order to enable them to settle down in life and live peacefully. If the parties ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law, in order to do complete justice in the matrimonial matters, the courts should be less hesitant in exercising their extraordinary jurisdiction. It is the duty of the courts to encourage genuine settlements of matrimonial disputes and Section 482 CrPC enables the High Court andArticle 142 of the Constitution enables the Supreme Court to pass such orders.
In the present case, the appellants (the husband and his relatives, accused under Sections 498-Aread with Section 34 IPC and Sections 3 and 4, Dowry Prohibition Act, 1961) had not sought compounding of the offences. They had approached the High Court under Section 482 CrPC for quashing of the criminal proceedings. The High Court ought to have quashed the criminal proceedings in question by accepting the settlement arrived at by the parties concerned."
13. In view of the various rulings of the Hon'ble Supreme Court, referred to supra and the observations made therefrom, this Court is not inclined to accept the compromise entered into between the parties in Crl.O.P.(MD) No.406 of 2016, wherein the case has been registered for various offences, including the one under Special Enactment. Accordingly, Crl.O.P.(MD) No.406 of 2016 is dismissed even on merits and the 1st respondent police is directed to complete the investigation and file a final report before the jurisdictional Court as expeditiously as possible.
14. As far as Crl.O.P.(MD) Nos.530 and 864 of 2016 are concerned, the cases have been registered only under IPC and Matrimonial offences, keeping in mind the proposition laid down by the Apex Court, Crl.O.P.(MD) Nos.530 and 864 of 2016 are liable to be allowed and Registry is directed to list these petitions on 28.01.2016, for appearance of the respective parties-in-persons before this Court along with joint memos of compromise, if already not filed and their identify proof, so as to enable this Court to record the compromise.
To
1. The Inspector of Police, Usilampatti Town Police Station, Madurai District.
2. The Inspector of Police, Sanarpatti Police Station, Dindigul District.
3. The Inspector of Police, All Women Police Station, Virudhunagar, Virudhunagar District.
4. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.