Kerala High Court
Bhaskaran vs State Of Kerala on 31 August, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
FRIDAY, THE 8TH DAY OF JULY 2016/17TH ASHADHA, 1938
CRL.REV.PET.NO. 2918 OF 2005 ( )
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AGAINST THE JUDGMENT IN CRA NO.245/2000 OF FIRST ADDITIONAL SESSIONS
COURT, KOLLAM DATED 31-08-2005
AGAINST THE JUDGMENT IN CC NO. 25/1995 OF J.M.F.C.-I,KOTTARAKKARA
DATED 30-11-2000
REVISION PETITIONER(S)/2ND APPELLANT/2ND ACCUSED.:
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BHASKARAN, S/O NEELAKANTAN,
MELEPATTASSERI VEEDU,
PAVITHRESWARAM MURI,
PAVITHRESWARAM P.O. KOLLAM.
BY ADVS.SRI.JOHN BRITTO
SRI.C.A.RAJEEV
RESPONDENT(S)/RESPONDENT/COMPLAINANT.:
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STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT. M.G. LISHA
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
08-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
NS
P.D. RAJAN, J.
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Crl. Rev. Pet. No.2918 of 2005
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Dated this the 8th day of July, 2016
O R D E R
This revision petition is preferred by the 2nd accused against the judgment in Criminal Appeal No.245 of 2000 of the 1st Additional Sessions Judge, Kollam. The accused were charge sheeted in C.C. No.25 of 1995 by the Judicial First Class Magistrate Court-I, Kottarakkara under Secs.341, 326, 324 and 323 read with Sec.34 of the Indian Penal Code. The charge against the accused is that on 29.10.1996 at 6.30 a.m., the 1st accused, in furtherance of their common intention, wrongfully restrained PW1 and beat on his face and A2 cut with a chopper on his right hand, as a result, he sustained serious injuries. Ezhukone Police registered a crime and after completing investigation, laid charge in the trial court.
2. During trial prosecution examined PW1 to PW7 and marked Exts.P1 to P5. The incriminating circumstances brought out in evidence were denied by Crl. Rev. Pet. No.2918 of 2005 2 the accused while questioning him. Ext.D1 was marked as defence evidence. The learned Magistrate convicted the 1st accused under Secs.341 and 323 IPC and sentenced him to pay a fine of Rs.500/- under Sec.341 IPC and Rs.1000/- under Sec.323 IPC. The 2nd accused was convicted under Sec.326 IPC and sentenced to imprisonment for six months and fine of Rs.5,000/- in default, imprisonment for six months. Against that they preferred Criminal Appeal before the 1st Additional Sessions Court, Kollam where the learned Sessions Judge dismissed the appeal. Being aggrieved by that, the 2nd accused preferred this revision petition.
3. When the matter came up for hearing, the learned counsel appearing for the revision petitioner submitted that due to the intervention of the mediators the parties have settled the matter out of court. They filed Criminal M.A. No.4157 of 2016 in which, the revision petitioner, injured PW1 and their respective counsel signed in the application. Public prosecutor identified both parties.
Crl. Rev. Pet. No.2918 of 2005 3
4. The offence under Sec.326 IPC is a non compoundable offence. A person who would otherwise be competent to compound an offence is specifically mentioned under Sec.320 of the Code of Criminal Procedure. In a case where the accused is convicted and against that an appeal is pending, no composition of the offence shall be allowed without the leave of the court to which, the appeal is to be heard. Circle Inspector, Kottarakkara reported that the revision petitioner, Bhaskaran is now aged 85 years and he is not in a position to walk and he is unable to do his daily routine work without the help of others. I am convinced that he is not in a good condition to be sent him to jail. In the circumstance, compromise petition Criminal M.A. No.4157 of 2016 has to be considered while disposing this revision petition. This is a fit case to put an end to the litigations since they are neighbours and moreover they are close relatives. Revision petitioner agreed to pay Rs.35,000 (Rupees thirty five thousand only) as compensation to the victim Mohanan. He is also from a Crl. Rev. Pet. No.2918 of 2005 4 poor family background and he needs some financial help. Revision petitioner agreed to pay the amount on or before 30.07.2016.
5. The Apex Court in Gian Singh v. State of Punjab [2012 (4) KLT 108(SC)] explained the parameters of the high Court in quashing the criminal proceedings or FIR invoking the inherent jurisdiction. To secure the ends of justice and to prevent abuse of process of court, the Apex Court held that the power under Sec.482 Cr.P.C. can be exercised, which reads as follows:
" 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 S.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 Crl. Rev. Pet. No.2918 of 2005 5 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 Crl. Rev. Pet. No.2918 of 2005 6 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."
6. The general scheme for compounding an offence has been explained under Section 320 of the Code. But section 320(9) Cr.P.C says that no offences shall be compounded except as provided in the section. The offence under section 326 IPC is non compoundable. Any compromise between the accused person and the victim of the crime should not exonerate the criminal liability of the accused. However, when an offence is essentially of a private nature and not a serious one, the code consider it as a compoundable offence and some offences are compoundable with the permission of the court. Most of the compoundable offences are non cognizable, but all non-cognizable offences are not compoundable. On the other hand, the offences which are compoundable with the permission of the court are cognizable offence, at the same time all cognizable offences are not compoundable. Therefore Section 320 Crl. Rev. Pet. No.2918 of 2005 7 (9) Cr.P.C makes it clear that offences not provided by this section are not compoundable. Therefore, broadly speaking, offences other than those specified in Section 320(1) and (2) Cr.P.C cannot be compounded. According to the scheme of the section, all offences under special or local laws are non compoundable and the legislature has to make a clear indication in those laws as to what extent offences under such laws should be compounded.
7. Apex Court in B.S.Joshy V. State of Haryana (2003(4) SCC 675) held as follows:-
" The High Court also relied upon the decision in case of Surendra Nath Mohanty case for the proposition that offence declared to be non- compoundable cannot be compounded at all even with the permission of the court. That is of course so. The offences which can be compounded are mentioned in Section 320.
Those offences which are not mentioned therein cannot be permitted to be compounded. In Mohanty case the appellants were convicted by the trial court for offence under Section 307. The High Court altered the conviction of the appellants and convicted them for offence under Section 326 and imposed sentence of six Crl. Rev. Pet. No.2918 of 2005 8 months. The trial court had sentenced the appellants for a period of five years' RI. The application for compounding was, however, dismissed by the High Court. This Court holding that the offence for which the appellants had been convicted was non-compoundable and, therefore, it could not be permitted to be compounded but considering that the parties had settled their dispute outside the court, the sentence was reduced to the period already undergone. It is, however, to be borne in mind that in the present case the appellants had not sought compounding of the offences. They had approached the Court seeking quashing of FIR under the circumstances abovestated".
(paragraph 9) Therefore a reading of the above decision makes it clear that after conviction of the accused in a non compoundable offence, it cannot be permitted to be compounded but considering the fact that the parties had settled their dispute outside the court, the sentence was reduced to the period already undergone.
8. In Bankat V. State of Maharashtra (2005(1) SCC 343), apex court held that non compoundable Crl. Rev. Pet. No.2918 of 2005 9 offences could not be compounded. In Maheshchand V. State of Rajasthan (1991 SCC (crl) 159), apex court granted permission to compound the offence under Section 307 IPC, But in Ramlal V. State of Jammu and Kashmir (1999 SCC (crl) 123) apex court overruled the decision. Apex Court in Ram Bujan V. State of UP (1973 SCC(crl) 870) held that if parties belonging to one family settled their dispute, it is not necessary to keep them in jail for a long time. In Malkiat Singh V. State of Punjab (1983 SCC (crl) 52), apex court reiterated the view that to meet the ends of justice the sentence has to be reduced to the period already undergone. Apex Court in Rampujan v. State of U.P. [1973 (2) SCC 456] discussed the effect of compromise in case of non- compoundable offence and held that it would meet the ends of justice, if the sentence of imprisonment awarded to the appellant is reduced to the period already undergone, provided the appellant should pay fine in addition to the imprisonment already undergone. That was a case in which the accused was convicted u/s.326 Crl. Rev. Pet. No.2918 of 2005 10 r/w.34 IPC. Here, the revision petitioner and the injured are neighbours. In the circumstances, considering the physical condition of the revision petitioner, it is not fair to send him to jail. Therefore, sentence of imprisonment till rising of the Court and fine of 5,000/- are sufficient to meet the ends of justice.
9. In the result, conviction and sentence passed by the trial court under Sec.326 IPC is confirmed. He is sentenced to imprisonment till rising of court and fine of Rs.5,000/- (Rupees five thousand only). The revision petitioner is directed to surrender in the trial Court and to pay the fine amount as directed above on 26.9.2016.
Sd/-
P.D. RAJAN,
JUDGE
/ True Copy /
NS/12/07/2016 P.A. To Judge