Uttarakhand High Court
Mahendra Singh & Another ... vs State Of Uttarakhand & Another on 20 December, 2018
Author: Narayan Singh Dhanik
Bench: Narayan Singh Dhanik.
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Compounding Application (CRMA 11522/2018)
In
CRIMINAL MISCELLANEOUS APPLICATION No. 2024/2018
(Under Section 482 of the CrPC)
Mahendra Singh & Another .......Applicants
Versus
State of Uttarakhand & Another ......Respondents
Mr. D.N. Sharma, Advocate, for the applicants/petitioners. Mr. S.K. Chaudhary, Deputy Advocate General, for the State/respondent no. 1. Mr. Rakesh Negi, Advocate, for the complainant/respondent no. 2. Applicants and the complainant in person.
20h December, 2018 Hon'ble Narayan Singh Dhanik. (Oral) Present criminal miscellaneous application under Section 482 CrPC has been filed for quashing the summoning order dated 05.5.2018 and the entire criminal proceedings of Case No. 2682 of 2018, State v. Mahendra Singh Bhandari & Another, under sections 498A, 323, 504, 506 IPC and one under Section 3/4 of the Dowry Prohibition Act, pending before the Court of Judicial Magistrate-Ist, Dehradun.
In the present case, complainant/respondent no. 2 lodged an FIR on 4.9.2017 in the Police Station Nehru Colony, Dehradun and after the investigation, the police submitted the chargesheet and thereafter the learned Magistrate vide the impugned summoning order summoned the accused applicants to face the trial for the aforementioned offences.
Now, the present criminal miscellaneous application has been filed along with the joint compounding application. Compounding application is duly supported by the affidavits of the accused applicant no. 1 Mahendra 2 Singh as well as the complainant Smt. Hema Negi wherein it has been stated that parties have entered into a compromise and the dispute between the accused applicants and the complainant has amicably been settled and now, the complainant has no grievance or grudge against the accused persons and, therefore, she does not want to prosecute the accused applicants and to continue the proceedings initiated pursuant to FIR lodged by the complainant.
Accused applicants and the complainant, duly identified by their respective Counsel, are present in person before this Court. They ratified the fact that they have entered into compromise and now, there is no dispute between them.
Reliance has been placed on the judgments of the Hon'ble Apex Court rendered in Nikhil Merchant v. C.B.I. & Ors, (2008) 9 SCC 677; B.S. Joshi v. State of Haryana & Anr. reported in (2003) 4 SCC 675, and in Gian Singh v. State of Punjab & Another, (2012) 10 SCC 303.
Offences under Section 498A IPC and Section 4 of the Dowry Act are non-compoundable. Needless to say that non-compoundable offences cannot be compounded by a Court. While Considering the request for compounding of offences, the Court has to strictly follow the mandate of Section 320 CrPC and hence, compounding of offences under these sections cannot be permitted. However, if there is a genuine compromise between husband and wife, criminal complaints arising out of matrimonial discord can be quashed, even if the offences alleged therein are non- compoundable.
Similar question came up for hearing before the Hon'ble Apex Court in B.S. Joshi, Nikhil Merchant and Manoj Sharma where the Hon'ble Supreme Court indirectly 3 permitted compounding of non-compoundable offences. Subsequently, the controversy was referred to a larger Bench in case of Gian Singh to examine and reconsider the aforesaid two decisions and while dealing with these decisions, the Hon'ble Supreme Court observed that "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" and made following guidelines for the High Courts:
"53. 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 the 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 Court 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.
454. 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.
55. 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 authorized, and especially if, as a matter of duty, required to be done by law, it is found to impossible to do that thing unless something else not authorized in express terms be also done, may also be done, than 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.
56. 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.
57. Quashing of offence or criminal proceedings on the ground of settlement and offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of 5 compounding offences given to a court under Section 320 is materially different from the quashing of the 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 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 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 or indictment.
58. 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 under IPC or offences of moral turpitude under special statues, like the 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 6 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 dispute 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 of 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 casuality and ends of justice shall be deleted. The above list is illustrative and not exhaustive. Each case will depend on its own fact and no hard-and-fast category can be prescribed."
Lastly, the Hon'ble Supreme Court observed that "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 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 Hon'ble Apex Court came to the conclusion that it cannot be said that B.S. Joshi, Nikhil Merchant and Manoj Sharma were not correctly decided and answered the reference accordingly.
It is thus clear that compounding of an offence under Section 320 of the Code is different than the 7 quashing of criminal proceeding relating to a non- compoundable offence on the basis of compromise and settlement between the offender and the victim and it shall depend on the facts and circumstances of each case.
In the present case, since the dispute has been settled between the parties, no useful purpose would be served if the proceedings are allowed to continue. Therefore, keeping in view the decisions (supra) of the Hon'ble Apex Court and the compromise arrived at between the parties, this Court is also of the view that continuance of the proceedings, after the compromise having been arrived at between the parties, would be a futile exercise.
Hence, the compromise entered into between the parties is accepted. Compounding application is allowed. Consequently, the impugned summoning order dated 05.5.2018 and the entire criminal proceedings of Case No. 2682 of 2018, State v. Mahendra Singh Bhandari & Another, under sections 498A, 323, 504, 506 IPC and one under Section 3/4 of the Dowry Prohibition Act, pending before the Court of Judicial Magistrate-Ist, Dehradun are hereby quashed. Present criminal miscellaneous application stands disposed of accordingly.
Registry is directed to inform the Court
concerned accordingly.
Copy of this judgment and order shall be
supplied by the Registry today itself on payment of usual charges.
(Narayan Singh Dhanik, J.) 20.12.2018 Prabodh