Madras High Court
Mr.Hansarajsaxena vs State Rep. By The Inspector Of Police on 27 July, 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 27.07.2011 CORAM THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM Crl.O.P.Nos.17635 and 17636 of 2011 and M.P.Nos.1 and 1 of 2011 Mr.Hansarajsaxena ..Petitioner in both Crl.O.Ps Versus 1.State rep. by the Inspector of Police R-7, K.K.Nagar Police Station, Chennai. (Crime No.849 of 2011) 2.V.S.Shangmugaval ..Respondents in Crl.O.P.No.17635 of 2011 1.State rep. by the Inspector of Police R-7, K.K.Nagar Police Station, Chennai. (Crime No.833 of 2011) 2.T.Selvaraj .. Respondents in Crl.O.P.No.17636 of 2011 PRAYER in Crl.O.P.Nos.17635 of 2011 : Criminal Original Petition filed under section 482 of the Criminal Procedure Code praying to call for the records of the Crime No.849 of 2011 on the file of the Inspector of Police, R7 K.K.Nagar Police Station quash same. PRAYER in Crl.O.P.Nos.17636 of 2011 : Criminal Original Petition filed under section 482 of the Criminal Procedure Code praying to call for the records of the Crime No.833 of 2011 on the file of the Inspector of Police, R7 K.K.Nagar Police Station quash same. For Petitioner : Mr.V.Gopinath (in both crl.o.p.'S) Senior counsel for Mr.A.Selvendran For respondents : Mr.I.Subramanian for (R1) (in both Crl.O.P.'s) Public Prosecutor (in Crl.O.P.No.17635 of 2011) : Mr.P.Suresh Babu (R2) (in Crl.O.P.No.17636 of 2011) : Ms.R.J.Shyamala (R2) C O M M O N O R D E R
In both the petitions the petitioner is one and the same and the defacto complainants are shown as R2. Two cases are registered against the petitioner by the first respondent police, one in Crime No.833 of 2011 for the offences under Sections 406, 420, 385, 506(ii) IPC and another case in Crime No.849 of 2011 for the offences under Sections 147, 342, 323, 324, 385 and 506(ii) I.P.C. These Criminal Original Petitions are filed to quash the proceedings against the petitioner, on the ground that matter has been amicably settled between the petitioner and the defacto complainant. Affidavits are also filed by the defacto complainants to that effect.
2. Mr.V.Gopinath learned Senior counsel appearing for the petitioner submitted that the compromise had been arrived by the parties and the matter was also amicably settled and the defacto complainants are not interested in pursuing the complaint and they also requested police to drop action in the complaint given by them against the accused. The learned senior counsel further submitted that the compliant indicates that the dispute between the defacto complainant and the accused arose out of a commercial transaction and they are the cases of civil in nature. The learned senior counsel appearing for the petitioner relied on the following decisions of the Supreme Court:
1.B.S.Joshi and others Vs. State of Haryana reported in 2003 SCC (CRL) 848
2.Nikhil Merchant Vs. Central Bureau of Investigation reported in 2008 (3) SCC (CRL) 858
3.Jagdish Chanana and others Versus State of Haryana reported in 2009 (3) SCC (CRL) 1157
3.The learned senior counsel Mr.Sriramulu appearing for defacto complainant in Crl.O.P.No.17635 of 2011 and Ms.R.J.Shyamala appearing for the defacto complainant in Crl.O.P.No.17636 of 2011 submit that defacto complainants are now present before the Court and also submitted that the matter has been settled and they have no objection for the proceedings to be quashed against the accused.
4. Mr.I. Subramanian, learned Public Prosecutor submitted that the statement of seven witnesses have already been recorded relating to Crime No.849 of 2011 and as far as the petitioner is concerned, he is only the Chief Operating officer of the company and the transaction as per the complaint does not stop merely with the petitioner and the defacto complainant. The entire transaction should be probed by the prosecution at this stage. It may not be proper to allow the applications filed by the petitioner to quash the proceedings. The learned Public Prosecutor relied on the decision of Sushil Suri Versus C.B.I. reported in 2011 (2) MLJ 2011.
5.This Court considered the submissions and perused the records. A Perusal of the complaint in Crime No.833 of 2011, shows that there was an agreement with regard to release of film and the defacto complainant paid a sum of Rs.1,25,00,000/-. After releasing the film an amount of Rs.82,53,374/- was due to the defacto complainant from the petitioner. When the defacto complainant demanded the amount, he was threatened by the accused/petitioner. The occurrence is said to have taken place on 05.01.2011 and the complaint was given on 01.07.2011. According to the complainant, the reason for the delay in lodging the complaint is that due to threat and fear he had not given the complaint.
6.The complaint in Crime No.849 of 2011 shows that the defacto complainant was releasing the films for Sun pictures and the defacto complainant had to pay a sum of Rs.60,00,000/- to Sun pictures. He was not in a position to pay the amount but he went to take delivery of the picture. On 11.02.2010, he was abused and assaulted by the petitioner and the other accused. He has given the complaint on 06.07.2011. He had not given the complaint immediately due to fear and threat.
7. In the decision of the Honourable Supreme Court in B.S.Joshi and others vs. State of Haryana and another reported in (2003 SCC (Crl) 848), it has been held as follows:
"14. There is no doubt that the object of introducing Chapter XX-A containing Section 498-A in the Indian Penal Code was to prevent torture to a woman by her husband or by relatives of her husband. Section 498-A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hypertechnical view would be counterproductive and would act against interests of women and against the object for which this provision was added. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XX-A of the Indian Penal Code.
15. In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code."
8. In yet another decision of the Honourable Supreme Court in Nikhil Merchant vs. Central Bureau of Investigation and another reported in (2003 SCC (Crl) 858), it has been observed as follows:
"8. Apart from the said decision, reliance was also placed on another decision of this Court in B.S. Joshi v. State of Haryana reported in ((2003) 4 SCC (Cri) 848) wherein while dealing with the proceedings under Sections 498-A and 406 of the Penal Code involving matrimonial disputes and offences, this Court held that even though the provisions of Section 320 of the Code of Criminal Procedure would not apply to such offences which are not compoundable, it did not limit or affect the powers under Section 482 CrPC and the powers conferred on the High Courts and the Supreme Court under Articles 226 and 136 of the Constitution of India. Referring to the decision of this Court in State of Haryana v. Bhajan Lal reported in (1992 SCC (Cri) 426) this Court observed that the categories indicated in the said case which warranted exercise of power under Section 482 CrPC were only illustrative and not exhaustive. This Court ultimately held that the High Court in exercise of its inherent powers can quash criminal proceedings or an FIR or complaint and Section 320 CrPC does not limit or affect the power of the High Court under Section 482 of the Code.
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29. Despite the ingredients and the factual content of an offence of cheating punishable under Section 420 IPC, the same has been made compoundable under sub-section (2) of Section 320 CrPC with the leave of the court. Of course, forgery has not been included as one of the compoundable offences, but it is in such cases that the principle enunciated in B.S. Joshi case ((2003) 4 SCC (Cri) 848) becomes relevant.
30. In the instant case, the disputes between the Company and the Bank have been set at rest on the basis of the compromise arrived at by them whereunder the dues of the Bank have been cleared and the Bank does not appear to have any further claim against the Company. What, however, remains is the fact that certain documents were alleged to have been created by the appellant herein in order to avail of credit facilities beyond the limit to which the Company was entitled. The dispute involved herein has overtones of a civil dispute with certain criminal facets. The question which is required to be answered in this case is whether the power which independently lies with this Court to quash the criminal proceedings pursuant to the compromise arrived at, should at all be exercised?
31. On an overall view of the facts as indicated herein above and keeping in mind the decision of this Court in B.S. Joshi case reported in ((2003) 4 SCC (Cri) 848) and the compromise arrived at between the Company and the Bank as also Clause 11 of the consent terms filed in the suit filed by the Bank, we are satisfied that this is a fit case where technicality should not be allowed to stand in the way in the quashing of the criminal proceedings, since, in our view, the continuance of the same after the compromise arrived at between the parties would be a futile exercise."
9. It is observed in the decision of the Honourable Supreme Court in Jagdish Chanana and Others vs. State of Haryana and Another (2009(3) SCC (Cri) 1157) as follows:
"3. In the light of the compromise, it is unlikely that the prosecution will succeed in the matter. We also see that the dispute is a purely personal one and no public policy is involved in the transactions that had been entered into between the parties. To continue with the proceedings, therefore, would be a futile exercise. We accordingly allow the appeal and quash FIR No. 83 dated 12-3-2005, PS City Sonepat and all consequent proceedings."
10. It is also observed by the Honourable Supreme Court in Manoj Sharma vs. State and Others reported in (2009(1) LW (Crl) 137) as follows:
"23. There can be no doubt that a case under Section 302 IPC or other serious offences like those under Sections 395, 307 or 304-B cannot be compounded and hence proceedings in those provisions cannot be quashed by the High Court in exercise of its power under Section 482 CrPC or in writ jurisdiction on the basis of compromise. However, in some other cases (like those akin to a civil nature), the proceedings can be quashed by the High Court if the parties have come to an amicable settlement even though the provisions are not compoundable. Where a line is to be drawn will have to be decided in some later decisions of this Court, preferably by a larger Bench (so as to make it more authoritative). Some guidelines will have to be evolved in this connection and the matter cannot be left at the sole unguided discretion of Judges, otherwise there may be conflicting decisions and judicial anarchy. A judicial discretion has to be exercised on some objective guiding principles and criteria, and not on the whims and fancies of individual Judges. Discretion, after all, cannot be the Chancellor's foot.
24. I am expressing this opinion because Shri B.B. Singh, learned counsel for the respondent has rightly expressed his concern that the decision in B.S. Joshi case1 should not be understood to have meant that Judges can quash any kind of criminal case merely because there has been a compromise between the parties. After all, a crime is an offence against society, and not merely against a private individual."
11. In the decision cited by the learned Public Prosecutor, the Honourable Supreme Court in Gian Singh vs. State of Punjab and Another reported in (2011(2) MLJ (Crl) 201(SC)) has observed as follows:
"4. Section 420 IPC, one of the counts on which the petitioner has been convicted, no doubt, is a compoundable offence with permission of the Court in view of Section 320, Cr.P.C., but Section 120-B IPC, the other count on which the petitioner has been convicted, is a non-compoundable offence. Section 120-B (Criminal conspiracy) is a separate offence and since it is a non-compoundable offence, we cannot permit it to be compounded.
5. The Court cannot amend the statute and must maintain judicial restrain in this connection. The Courts should not try to take over the function of the parliament or executive. It is the legislature alone which can amend Section 320 Cr.P.C.
6. We are of the opinion that the above three decisions require to be reconsidered as, in our opinion, something which cannot be done directly cannot be done indirectly. In our, prima facie opinion, non-compoundable offences cannot be permitted to be compounded by the Court, whether directly or indirectly. Hence, the above three decisions do not appear to us to be correctly decided.
7. It is true that in the last two decisions, one of us, Honourable Mr.Justice Markandey Katju, was a member but a Judge should always be open to correct his mistakes. We feel that these decisions require reconsideration and hence we direct that this matter be placed before a larger Bench to reconsider the correctness of the aforesaid three decisions."
Though the Honourable Supreme Court has referred the point to a larger bench whether the court has power to permit the non-compoundable offences to be compounded, as on date, the Judgments cited by the learned counsel for the petitioner being not overruled, this Court is of the view that the power under Section 482 Cr.P.C could be exercised with care and caution in appropriate cases permitting the compounding of non-compoundable offences.
12. In both the cases, the dispute arose out of commercial transaction. This Court feels that the defacto complainants have come forward to quash the proceedings by arriving at an amicable settlement and this Court feels that continuation of the proceedings would serve no useful purpose and it would be a futile exercise.
13. Hence proceedings in Crime No.833 of 2011 and 849 of 2011 on the file of R-7, K.K.Nagar Police Station, Chennai, are quashed.
14. These Criminal Original Petitions are allowed. Consequently, connected Miscellaneous Petitions are closed.
arr ksr To
1.The Inspector of Police R-7, K.K.Nagar Police Station, Chennai.
2.The Public Prosecutor, High Court, Madras