Madras High Court
V.Sekar vs State By Inspector Of Police on 1 March, 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.03.2012
CORAM:
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
Crl.O.P.No.30250 of 2010
and
M.P.Nos.1 and 2 of 2010
1. V.Sekar
2. A.Sakunthala
3. S.Komala
4. K.Vasantha
5. S.Devika
6. S.Mahalakshmi
7. V.Arumugam
8. A.Yuvaraj
9. C.Asaithambi ..Petitioners
- Vs -
1. State by Inspector of Police,
Central Crime Branch,
Chennai Sub-Urban Police.
2. Suresh Chand Bafna ..Respondents
Prayer:- Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure calling for the records in C.C.No.343 of 2009 on the file of the Judicial Magistrate No.1, Poonamallee and quash the same.
For Petitioners : Mr.R.Rajarathinam
For Respondent 1 : Mr.I.Subramanian, Public Prosecutor,
Asst. by Mr.C.Iyyappa Raj, G.A.(Crl.Side)
For Respondent 2 : Mr.K.Surendar
- - - - -
O R D E R
The petitioners are the accused in C.C.No.343 of 2009 on the file of the learned Judicial Magistrate No.1, Poonamallee involving offences punishable under Sections 465, 466, 468 r/w 471, 120 (b) & 109 I.P.C. This is a case on a police report. The second respondent is the de facto complainant in the case.
2. The petitioners have now come up with this original petition seeking to quash the said case on the sole ground that the dispute between the second respondent and the petitioners has been settled by means of a compromise. The second respondent has filed an affidavit wherein, he has stated that the dispute between them has been amicably settled and he has got no objection for quashing the proceedings. Admittedly, since some of the offences involved in this case are non-compoundable, it will not be possible for the trial court to give the relief under Section 320 of Cr.P.C. Therefore, they have approached this Court with this petition invoking the inherent power of this Court under Section 482 of Cr.P.C. to quash the said proceedings.
3. At the outset, I have to state that there was no consensus between the counsel for the petitioners and the learned Public Prosecutor on the question as to whether the inherent power of this Court is subject to the limitations of Section 320 Cr.P.C. Therefore, at the first, let us have a survey of the provisions and judgments on this subject.
4. The inherent power has not been conferred upon this Court by Section 482 Cr.P.C. but it is the power inherent in the Court by virtue of its duty to do justice between the parties before it. Section 482 Cr.P.C. only saves the inherent powers of the High Court. According to the said provision, nothing in the Code of Criminal Procedure shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary for the following purposes:
(i) to give effect to any order under this Code; or
(ii) to prevent abuse of the process of any Court; or
(iii) otherwise to secure the ends of justice.
5. Therefore, it is crystal clear that to achieve any one of the above, the High Court can exercise its inherent power not being limited or affected by any of the provisions of the Code, including Section 320 Cr.P.C. But at the same time, as it has been well settled, the said inherent power cannot be exercised when there is a specific provision in the Code governing the field (vide Hamida Vs. Rashid reported in 2008 1 SCC 474).
6. Similar provision is found in Section 151 of the Code of Civil Procedure which saves the inherent power of the Civil Court. The said provision also states that the inherent power of the Court to pass any order as may be necessary shall not be either deemed to be limited or affected by any of the provisions of the Civil Procedure Code for passing order for the following purposes:
(i) to make an order as may be necessary for the ends of justice ; or
(ii) to prevent abuse of the process of the Court.
7. The scope of Section 151 C.P.C. was considered by various High Courts and there was no uniformity amongst them in this regard. The matter came up for consideration before a Constitution Bench in Manohar Lal Vs. Seth Harilal reported in AIR 1962 SC 527. In paragraph 18 of the said Judgment, the Constitution Bench took note of the divergent views amongst various High Courts and has held as follows:
"18....We are of the opinion later view is correct and that the Courts have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of Order XXXIX, C.P.C. There is no such expression in S.94 which expressly prohibits the issue of a temporary injunction in circumstances which are not covered by the provisions of Order XXXIX or by any rules made under the Code. It is well settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them......"
In paragraphs 23 & 24 of the judgment, the Constitution Bench has declared the law as follows:
"23......The section itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it.
24. Further, when the Code itself recognizes the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code."
8. The said judgment of the Hon'ble Supreme Court came to be considered in Jet Ply Wood Pvt. Ltd., Vs. Madhukar Nowlakha reported in AIR 2006 SC 1260, wherein, the Hon'ble Supreme Court has held as follows:
"25. The principle is well established that when the Code of Civil Procedure is silent regarding a procedural aspect, the inherent power of the court can come to its aid to act ex debito justitiae for doing real and substantial justice between the parties. This Court had occasion to observe in the case of Monohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527, as follows:-
" It is well settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them."
9. Thus law has been well settled in respect of the scope of Section 151 C.P.C. As we have extracted above, the inherent power of the Court under Section 151 C.P.C. is inherent in the Court and not conferred upon the Court by the Code. The said power can be exercised by the Court in order to secure the ends of justice provided there is no specific provision elsewhere in the code governing the field.
10. Now let us have a glimpse of the judgments of the Hon'ble Supreme Court on the scope of a similar inherent power saved under Section 482 Cr.P.C. We may commence our survey with the judgment of the Hon'ble Supreme Court in State of Karnataka Vs. L.Munisamy reported in (1977) 2 SCC 699. That is a case where the Hon'ble Supreme Court, has considered the scope of Section 561-A of the Code of Criminal Procedure, 1898, which corresponds to Section 482 of Code of Criminal Procedure, 1973. It is needless to point out that Section 561-A of the old Code and Section 482 of the new Code are in pari materia. In the said judgment, the Hon'ble Supreme Court has made the following observations:
"7......The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to. achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the, ends of mere law though justice has got to be. administered according to laws made by the, legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to. save the inherent powers of the High Court to do justice between the State and its. subjects, it would be impossible. to appreciate the width and contours of that salient jurisdiction." (Emphasis added)
11. This judgment came to be considered by the Hon'ble Supreme Court in the much celebrated judgment in B.S.Joshi Vs. State of Haryana reported in (2003) 4 SCC 675. That was a case where the offence involved was punishable under Section 498(A) of I.P.C. which is admittedly not a compoundable offence as per Section 320 Cr.P.C. The question that arose before the Hon'ble Supreme Court was as to whether the proceedings could be quashed by the High Court by invoking its inherent power under Section 482 Cr.P.C on accepting the compromise reached between the parties. The Hon'ble Supreme Court in paragraphs 14 and 15 has 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." (Emphasis added)
12. The said view was taken by the Hon'ble Supreme Court after carefully examining the language employed in Section 482 of Cr.P.C. which starts with a non-obstante clause, saying:
"Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court........."
One of the occasions where this Court could exercise its inherent power is to secure the ends of justice. Making a deep study of Section 482 of Cr.P.C., the Hon'ble Supreme Court has held that in order to secure the ends of justice, the High Court can use its inherent power and in the said exercise, the power of the High Court shall not be limited by any of the provisions of the Code including Section 320 Cr.P.C.
13. It needs to be mentioned that Section 482 Cr.P.C. and Section 151 C.P.C. are almost in pari materia. As we have seen, the Hon'ble Supreme Court while interpreting both Section 151 C.P.C. (vide Manohar Lal case) and Section 482 Cr.P.C. (vide L.Munusamy case and B.S.Joshi case) has taken the consistent view that the inherent power of the Court is not conferred upon either by the Code of Criminal Procedure or Code of Civil Procedure but it is inherent in the Court by virtue of its duty to do justice between the parties before it. In both the Codes, if there is no specific provision for passing an order to secure the ends of justice, the Court can exercise its inherent power to pass such an order. But if there is any specific provision governing the field, then the inherent power cannot be exercised because the said specific provision itself will take care of to secure the ends of justice.
14. The judgment of the Hon'ble Supreme Court in B.S.Joshi case, came to be followed in a subsequent judgment in Nikhil Merchant Vs. Central Bureau of Investigation reported in (2008) 9 SCC 677. That was a case where the offences involved were under Sections 498(A) and 406 of I.P.C. Following B.S.Joshi case, cited supra, and also relying on an earlier judgment of the Hon'ble Supreme Court in State of Haryana Vs. Bhajan Lal reported in 1992 SCC (Cri) 426 the Hon'ble Supreme Court has held in paragraph 29 as follows:
"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 Cr.P.C. 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."
In paragraph 31 of the said judgment the Hon'ble Supreme Court has held as follows:
"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."
15. Subsequently, in Manoj Sharma Vs. State reported in (2008) 16 SCC 1, the above two cases viz., B.S.Joshi and Nikhil Merchant came to be considered by the Hon'ble Supreme Court. In that case, the offences were admittedly non-compoundable. By following the principles stated in B.S.Joshi case and Nikhil Mechant case in paragraph 23, the Hon'ble Supreme Court has held 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."
16. It is needless to point out that after the above three judgments, there were number of petitions filed before this Court on several occasions seeking to quash the proceedings involving non-bailable offences on the ground of compromise reached between the parties. While dealing with such petitioners, this Court also consistently has taken the view that the power of this Court under Section 482 of Cr.P.C. could be invoked to quash the proceedings on the ground of compromise, however, it all depends upon the gravity and nature of the offence involved.
17. In yet another case in Shiji alias Pappu Vs. Radhika reported in 2011 10 SCC 705, the Hon'ble Supreme Court had occasion to consider B.S.Joshi case, Nikhil Merchant case and Manoj Sharma case and finally held in paragraphs 17 and 18 of the judgment as follows:
"17. It is manifest that simply because an offence is not compoundable under Section 320 Cr.P.C. is by itself no reason for the High Court to refuse exercise of its power under Section 482 Cr.P.C. That power can in our opinion be exercised in cases where there is no chance of recording a conviction against the accused and the entire exercise of a trial is destined to be an exercise in futility. There is a subtle distinction between compounding of offences by the parties before the trial Court or in appeal on one hand and the exercise of power by the High Court to quash the prosecution under Section 482 Cr.P.C. on the other. While a Court trying an accused or hearing an appeal against conviction, may not be competent to permit compounding of an offence based on a settlement arrived at between the parties in cases where the offences are not compoundable under Section 320, the High Court may quash the prosecution even in cases where the offences with which the accused stand charged are non-compoundable. The inherent powers of the High Court under Section 482 Cr.P.C. are not for that purpose controlled by Section 320 Cr.P.C.
18. Having said so, we must hasten to add that the plenitude of the power under Section 482 Cr.P.C. by itself, makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the power itself demands that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. It is neither necessary nor proper for us to enumerate the situations in which the exercise of power under Section 482 may be justified. All that we need to say is that the exercise of power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse of the process of law. The High court may be justified in declining interference if it is called upon to appreciate evidence for it cannot assume the role of an appellate court while dealing with a petition under Section 482 of the Criminal Procedure Code. Subject to the above, the High Court will have to consider the facts and circumstances of each case to determine whether it is a fit case in which the inherent powers may be invoked."
18. While so, in Gian Singh Vs. State of Punjab reported in 2010 (12) SCALE 461 a Bench of two Judges of the Hon'ble Supreme Court doubted the correctness of the views expressed in B.S.Joshi case, Nikhil Merchant case and Manoj Sharma case. The Bench, therefore, referred the matter for decision by a larger Bench. That was also a case where the offences involved were under Sections 420 and 120-B of I.P.C. Since 120-B of I.P.C. is a separate offence and non-compoundable, the Hon'ble Supreme Court did not permit it to be compounded. In paragraphs 6 to 8 of the said Judgment, the Hon'ble Supreme Court referred the matter to a larger Bench by observing as follows:
"6. The Court cannot amend the statute and must maintain judicial restraint 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.
7. We are of the opinion that the above three decisions require to be re-considered 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.
8. It is true that in the last two decisions, one of us, Hon'ble Mr.Justice Markandey Katju, was a member but a Judge should always be open to correct his mistakes. We feel that these decisions require re-consideration and hence we direct that this matter be placed before a larger Bench to reconsider the correctness of the aforesaid three decisions."
19. When the above reference is still pending, subsequently a Bench of two Judges of the Hon'ble Supreme Court in Sushil Suri Vs. C.B.I. reported in 2011 (5) SCC 708, after referring to B.S.Joshi case, Nikhil Merchant case and Manoj Sharma case as well as the other judgments, held that the High Court has power to quash the proceedings. In paragraphs 20 and 21 of the Judgment, the Hon'ble Supreme Court has held as follows:-
"20........In our opinion, Nikhil Merchant (supra) does not hold as an absolute proposition of law that whenever a dispute between the parties, having overtones of a civil dispute with criminal facets is settled between them, continuance of criminal proceedings would be an exercise in futility and, therefore, should be quashed. Similarly, in B.S. Joshi & Ors. (supra), which has been relied upon in Nikhil Merchant (supra), the question for consideration was whether the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or Complaint for offences which are not compoundable under Section 320 of the Cr.P.C. It was held that Section 320 cannot limit or affect the powers of the High Court under Section 482 of the Cr.P.C., a well settled proposition of law. We are of the opinion that Nikhil Merchant (supra) as also the other two judgments relied upon on behalf of the appellant are clearly distinguishable on facts. It needs little emphasis that even one additional or different fact may make a world of difference between the conclusions in two cases and blindly placing reliance on a decision is never proper. It is trite that while applying ratio, the Court may not pick out a word or sentence from the judgment divorced from the context in which the said question arose for consideration. (See: Zee Telefilms Ltd. & Anr. Vs. Union of India & Anr.12). In this regard, the following words of Lord Denning, quoted in Haryana Financial Corporation & Anr. Vs. Jagdamba Oil Mills & Anr.13, are also quite apt:
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
21. In the present case, having regard to the modus operandi adopted by the accused, as projected in the Chargesheet and briefly referred to in para 17 (supra), we have no hesitation in holding that it is not a fit case for exercise of jurisdiction by the High Court under Section 482 of the Cr.P.C. as also by this Court under Article 142 of the Constitution of India. As noted above, the accused had not only duped PSB, they had also availed of depreciation on the machinery, which was never purchased and used by them, causing loss to the exchequer, a serious economic offence against the society. "
20. Very recently, after the matter was referred to the larger Bench in Gian Singh case, a similar petition seeking to quash the proceedings by invoking the inherent power under Section 482 of Cr.P.C. on the ground of compromise in respect of a case involving offences punishable under Sections 406, 420, 385 and 506-II came to be considered by this Court in Hansarajsaxena Vs. State reported in 2011 4 MLJ (Crl) 1. The learned Judge (Hon'ble Mr.Justice T.Sudanthiram) had occasion to extensively deal with B.S.Joshi case, Nikhil Merchant case, Manoj Sharma case, Sushil Suri case as well as Gian Singh case. The learned Judge has preferred to follow B.S.Joshi case, Nikhil Merchant case and Manoj Sharma case by holding that though there is reference pending in Gian Singh case, the judgments in B.S.Joshi case, Nikhil Merchant case and Manoj Sharma case have not been overruled so far. Therefore, according to the learned Judge, so long as the judgments are not overruled by a larger Bench on the reference made in Gian Singh case, the power under Section 482 of Cr.P.C. could be invoked by the High Court to quash the proceedings on the ground of compromise reached between the disputing parties. In paragraphs 11 and 12, the learned Judge has held as follows:
"11..........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 de facto 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."
21. The learned Public Prosecutor would, however, submit that all the above referred to judgments which are from Benches of Coram of either three or two Judges are not binding on this Court in view of the law laid down by a Constitution Bench in P.Ramachandra Rao Vs. State of Karnataka reported in 2002 SCC (Cri) 830 wherein the Hon'ble Supreme Court has made the following observations:
"Legislation is that source of law which consists in the declaration of legal rules by a competent authority. When Judges by judicial decisions lay down a new principle of general application of the nature specifically reserved for the legislature they may be said to have legislated, and not merely declared the law."
In yet another place, the Hon'ble Supreme Court has observed as follows:
"The primary function of the judiciary is to interpret the law. It may lay down principles, guidelines and exhibit creativity in the field left open and unoccupied by legislation."
Finally, in paragraph 27, the Hon'ble Supreme Court has held as follows:
"27. Prescribing periods of limitation at the end of which the trial court would be obliged to terminate the proceedings and necessarily acquit or discharge the accused, and further, making such directions applicable to all the cases in the present and for the future amounts to legislation, which, in our opinion, cannot be done by judicial directives and within the arena of the judicial law-making power available to constitutional courts, howsoever liberally we may interpret Articles 32, 21, 141 and 142 of the Constitution. The dividing line is fine but perceptible. Courts can declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps but they cannot entrench upon in the field of legislation properly meant for the legislature. Binding directions can be issued for enforcing the law and appropriate directions may issue, including laying down of time limits or chalking out a calendar for proceedings to follow, to redeem the injustice done or for taking care of rights violated, in a given case or set of cases, depending on facts brought to the notice of Court. This is permissible for judiciary to do. But it may not, like legislature, enact a provision akin to or on the lines of Chapter XXXVI of the Code of Criminal Procedure, 1973."
22. Relying on this, the learned Public Prosecutor would 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. The learned Public Prosecutor would further contend that what cannot be done directly cannot be done indirectly by a judicial decision amounting to legislation. Making a reference to the judgments of the Hon'ble Supreme Court in B.S.Joshi case, Nikhil Merchant case etc., the learned Public Prosecutor would contend that the law laid down in P.Ramachandra Rao case by the Constitution Bench alone binds this Court. Thus, according to him, this Court should restrain itself from quashing the proceedings on the ground of compromise reached between the parties in respect of non-compoundable offences.
23. Though interesting to hear, I do not find any force in the said argument of the learned Public Prosecutor. 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 as well. For any reason, if this Court finds that the law laid down by the Constitution Bench in P.Ramachandra Rao case, occupies the subject/area which has been dealt with in B.S.Joshi case, Nikhil Merchant case and other judgments referred to above, there can be no doubt that this Court is bound to follow the law laid down in P.Ramachandra Rao case alone since the same has been laid down by a Constitution Bench of the Hon'ble Supreme Court, whereas, the other judgments are from Benches of Coram of either three or two Hon'ble Judges. But, I find that the Judgment in P.Ramachandra Rao case decided by the Constitution Bench has got nothing to do with the questions dealt with in the judgments in B.S.Joshi case, Nikhil Merchant case and other cases followed subsequently as they are on entirely a different subject. In B.S.Joshi case, Nikhil Merchant case and Manoj Sharma case I do not find that there is any legislation made by the Hon'ble Supreme Court. Instead there is only interpretation of Section 482 of Cr.P.C. As I have already stated, the Hon'ble Supreme Court has only interpreted the non-obstante clause in the opening of Section 482 of Cr.P.C. These judgments of the Hon'ble Supreme Court in B.S.Joshi case, Nikhil Merchant case, Manoj Sharma case, Shiji alias Pappu case and Sushil Suri case are in consonance with the Constitution Bench judgment of the Hon'ble Supreme Court in Manohar Lal's case (vide AIR 1962 SC 527).
24. Thus, what has been laid down by the Hon'ble Supreme Court in B.S.Joshi case followed in the other judgments cited supra is only an interpretation regarding the scope of inherent power of the High Court and the same does not amount to any legislation at all. Therefore, I have no hesitation to hold that P.Ramachandra Rao case has got nothing to do with the issues involved in the present case.
25. As I have already stated, Hon'ble Mr.Justice T.Sudanthiram, after referring to the above cases and also having taken note of the referral order made in Gian Singh case has held that unless and until B.S.Joshi case and other cases are overruled, the same shall be binding on this Court. I am in respectful agreement with the view taken by the learned Judge. Apart from that, I also look into the issue in a different angle as well. Article 141 of the Constitution of India mandates that it is only the Law declared by the Hon'ble Supreme Court which is binding on this Court. There can be no doubt that in B.S.Joshi case, Nikhil Merchant case, Manoj Sharma case and Sushil Suri case, the Hon'ble Supreme Court has interpreted Section 482 of Cr.P.C. and has declared the law. But in Gian Singh case, the Coram of two Hon'ble Judges has only doubted the correctness of the same. The Hon'ble Judges have not declared any law. In the words of the Bench:
"The above three decisions do not appear to us to be correctly decided."
26. Thus in Gian Singh case, no law has been declared by the Hon'ble Supreme Court so as to bind this Court. A mere doubt raised by co equal Bench will not have the effect of overruling the other judgments, wherein, the law has been declared by the Hon'ble Supreme Court. Therefore, as rightly held by Hon'ble Mr.Justice T.Sudanthiram in Hansarajsaxena case, so long as the law declared by the Hon'ble Supreme Court in B.S.Joshi case, which has been consistently followed in subsequent judgments up to Sushil Suri case, is overruled, the law declared in B.S.Joshi case binds this Court. Therefore, I have no hesitation to hold that this Court can exercise its inherent power to quash the proceedings in respect of non-compoundable offences on the ground that the parties have settled the disputes among themselves. At the same time, I wish to state that as has been held by the Hon'ble Supreme Court in the above judgments, the said principle cannot be applied universally in all cases, irrespective of the nature, seriousness and the attendant circumstances of the case. As I have already observed, the power under Section 482 of Cr.P.C. can be invoked if only such quashing would meet the ends of justice. In a given case, whether the situation demands quashing, so as to meet the ends of justice, falls within the best judgment of the Judge before whom the issue comes up for consideration.
27. Now, turning to the facts of the case, the parties belong to the same family and they are the legal heirs of a common ancestor. The dispute is in respect of a property. This is not a simple case of forgery of signature of the complainants or anybody else by the accused. This is a case of creation of some title deeds claiming title for the property. Going by the facts of the case, I am of the view that this is a fit case where this Court should exercise its inherent power saved under Section 482 of Cr.P.C. to quash the proceedings by applying the law laid down in B.S.Joshi case. In view of all the above, the petition is allowed and the case in C.C.No.343 of 2009 on the file of the learned Judicial Magistrate No.1, Poonamallee is quashed. M.Ps. are closed.
kk To
1. The Judicial Magistrate No.1, Poonamallee.
2. The Inspector of Police, Central Crime Branch, Chennai Sub-Urban Police.
3. The Public Prosecutor, High Court, Madras