Bombay High Court
Prakash Pundlik Palaskar vs // on 25 November, 2013
Author: A.B.Chaudhari
Bench: A.B.Chaudhari, Z.A.Haq
Judgment 1
APL305.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION(APL) NO.305 OF 2013.
1. Prakash Pundlik Palaskar,
Age about 45 years, Occu.: Agriculturist
and Warehouse Keeper, residing at
Dongaon, Tahsil : Mehkar, Distt. Buldhana.
2. Subhash Pundlik Palaskar,
Age about 58 years, Occu.: Cultivator,
residing at Dongaon, Tahsil : Mehkar,
Distt. Buldhana.
3. Bharat Maniram Palaskar,
Age about 40 years, Occu.: Agriculturist,
residing at Dongaon, Tahsil : Mehkar,
Distt. Buldhana.
4. Ambadas Laxman Puri,
Age about 40 years, Occu.: Cultivator,
residing at Dongaon, Tahsil : Mehkar,
Distt. Buldhana.
.... APPLICANTS.
// VERSUS //
1. The State of Maharashtra,
Through Police Station, Dongaon
Police Station, Tahsil Mehkar,
District : Buldhana.
2. Arun Motiram Bajad,
Aged about 42 years,
R/o. Dongaon, Tah. Mehkar,
District : Buldhana.
....NON-APPLICANTS.
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Mr. R.P. Ghanwat, Advocate for Applicants.
Ms K.S.Joshi, A.P.P. for Non-applicant No.1.
Mr. I.G.Meshram, Advocate for Non-applicant No.2.
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Judgment 2
APL305.13
CORAM : A.B.CHAUDHARI AND
Z.A.HAQ, JJ.
DATED : NOVEMBER 25, 2013.
ORAL JUDGMENT : (Per : A.B.Chaudhari, J)
Heard.
2. RULE. Rule made returnable forthwith. Heard finally by consent of the rival parties.
3. The applicants herein have filed this application under Section 482 of the Code of Criminal Procedure in the matter of Regular Criminal Case No.296 of 2010 arising out of Crime No.37 of 2010, registered with Dongaon Police Station and the said criminal case is pending before Judicial Magistrate First Class, Mehkar, District : Buldana.
4. When the application was called out today for hearing the learned counsel, who are present with the respective parties i.e. applicant and non-applicant No.2 -complainant, submit that the offences alleged against the applicants are under Sections 407 and 420 read with Section 34 of the Indian Penal Code. According to the learned counsel for the rival parties, both the offences are compoundable and that being so, the compounding is required to be allowed by this Court in exercise of powers under Section 482 of the Code of Criminal Procedure.
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5. Per contra, learned Additional Public Prosecutor submitted that Section 407 is compoundable but Section 420 of the Indian Penal Code is compoundable with permission of the Court/ Magistrate. She, therefore, submitted that inherent powers cannot be exercised by this Court under Section 482 of the Code of Criminal Procedure. The learned counsel for the applicants submitted that in earlier Criminal Application (APL) No. 536 of 2012 (Prakash Pundlik Palaskar & oth. vs. State of Maharashtra & anr.), decided on 19.10.2012 this Court has granted liberty to file appropriate proceedings for quashing of the first information report, therefore, this Court should entertain the application under Section 482 of the Code of Criminal Procedure.
6. Upon hearing the learned counsel for the parties, at the outset, we find that the parameters laid down by the Apex Court from time to time while exercising powers under Section 482 of the Code must be adhered to.
We quote paragraph 49 from the case of Gian Singh vs. State of Punjab, reported in 2012 (10) SCC 303=2012(9) SCALE 257 in respect of the powers of the High Court and when the same should be exercised by it :
"49. 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 ::: Downloaded on - 23/12/2013 20:28:49 ::: Judgment 4 APL305.13 ends of justice. As has been repeatedly stated that Section 482 confers no new powers on High Court; it merely safeguards existing inherent powers possessed by 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." (Emphasis supplied)
7. Perusal of the chargesheet in this case shows that the offences alleged against the applicants are under Sections 407 and 420 read with Section 34 of the Indian Penal Code. The allegations are that the applicants in furtherance of their common intention sold food grains, owned by the complainant, which were stored in the warehouse belonging to the present applicants-accused persons. They had sold the food grains without knowledge of the complainant and without consent of the complainant. Thus, they misappropriated the said goods and thereby caused loss to the complainant.
The said act on the part of the applicants-accused amounts to criminal breach of trust by warehouse-keeper within meaning of Section 407 of the Indian Penal Code. Section 407 of the Indian Penal Code reads thus :
"407. Criminal breach of trust by carrier, etc. - Whoever, being entrusted with property as a carrier, wharfinger or warehouse-keeper, commits criminal breach of trust in respect of such property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
8. Next question is whether this Court should exercise power under Section 482 of the Code of Criminal Procedure when there are specific ::: Downloaded on - 23/12/2013 20:28:49 ::: Judgment 5 APL305.13 provisions in the Code of Criminal Procedure for compounding of offences.
The answer has to be in the negative. Section 320 of the Code of Criminal Procedure provides for the list of offences which are compoundable by the parties and another list of the offences which are compoundable with the permission of the Court. Section 320 of the Code of Criminal Procedure provides for different tables indicating the offences which are compoundable by the parties so also the offences which are compoundable with the permission of the Court. In so far as Section 407 of the Indian Penal Code is concerned, it is placed in a table which provides for compounding of offences by the parties and it does not require permission of the Court. Insofar as the offence under Section 420 of the Indian Penal Code is concerned, it is mentioned in the table under Section 320(2) of the Code of Criminal Procedure. The said offence is compoundable with the permission of the Court.
9. In our opinion, thus, both the offences namely Section 407 and Section 420 of the Indian Penal Code read with Section 34 of the Indian Penal Code clearly fall in Section 320 of the Code of Criminal Procedure. Thus, Section 320 of the Indian Penal Code provides for statutory remedy or is a provision for redressal of the grievance of the applicants and non-applicant No.2 who are willing to compound the said offences. In this view of the matter, in the wake of availability of remedy under Section 320 of the Code of ::: Downloaded on - 23/12/2013 20:28:49 ::: Judgment 6 APL305.13 Criminal Procedure, we do not think that we would be right in exercising inherent powers under Section 482 of the Code of Criminal Procedure, since the said remedy under Section 482 of the Code can sparingly be resorted to.
10. It is observed by this Court that the power under Section 482 of the Code of Criminal Procedure is being invoked by the litigants despite clear availability of the statutory and effective remedy by a specific provision of the Code for redressal of their grievance before the lower courts. We, therefore, refrain from exercising our jurisdiction under Section 482 of the Code of Criminal Procedure in the instant case in view of availability of statutory remedy under Section 320 of the Code of Criminal Procedure instead of mechanically exercising powers under Section 482 of the Code of Criminal Procedure. In view of above, we make the following order.
ORDER Criminal Application No.305 of 2013, under Section 482 of the Code of Criminal Procedure is rejected. The applicants and non-applicant No.2 are at liberty to approach the concerned Magistrate for compounding of the offences in accordance with law.
The criminal application stands disposed of accordingly with no order as to costs.
JUDGE JUDGE
RRaut..
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