Orissa High Court
Basanta Kumar Baral And Ors. vs State Of Orissa And Anr. on 20 December, 1996
Equivalent citations: 1997CRILJ2182
ORDER R.K. Dash, J.
1. Petitioners (hereinafter referred to as 'the accused persons') by filing the present application have challenged the order of the learned Judicial Magistrate, First Class, Baramba, passed in G.R. Case No, 78 of 1990, whereby he has taken cognizance of the offence under Section 436, I.P.C. and issued summons for their appearance.
2. Brief fads giving rise to the present proceeding may be stated thus :
Kubere Majhi. opposite patty No. 2 (hereinafter referred to as "the informant") lodged F.I.R. at Baramba Police Station alleging that the accused persons were inimically disposed towards him since last Panchayat election and in order to take revenge on him. they came in a body to his house a! about 1.40 in the night of 18/19-6-1990 being armed with lathis knives, rivolvers, etc., took away household articles and set fire to the house. They also assaulted and dragged him forcibly with intenion to throw him in the burning fire. It is further alleged that they while leaving his house with the movables, threatened that if he did not withdraw the case that he had filed against them, they would finish his entire family. On receipt of the said report, the police registered a case and on completion of investigation submitted final report since ho sufficient evidence was available to place charge-sheet against the accused persons. On receipt of the, final report, learned Magistrate issued notice to the informal to have his say. In response to the said notice the informant entered appearance and challenged the correctness of the final report whereupon the learned Magistrate on purusal of the ease diary and being satisfied that a prima facie case was made out against the accused persons took cognizance of the offence under Section 436, I.P.C.
3. The accused persons then moved this Court in Criminal Misc. Case No. 892 of 1991 and prayed for quashing the aforesaid order. Upon hearing the parties, the Court set aside the order of the Magistrate taking cognizance of the offence and remitted the matter back with a liberty to the accused persons to raise all possible contentions before him since such a course was permissible in view of the decision of the Apex Court in K.M. Mathew v. State of Kerala, (1992) 5 OCR 66 : (1992 Cri LJ 3779). It appears, learned Magistrate received the original case record on 5-6-1993 and adjourned the case to 20-8-1993 on which date he passed a cryptic order taking cognizance of the offence which runs thus :
"Advocate for the accused persons filed hazira. The record is posted today for orders. Perused the record and the order of the Hon'ble Court. The Hon'ble Court has passed an order to reassess the materials on record and to take cognizance thereafter if there appears a prima facie case against the accused persons. Therefore the record is perused with great care and caution and find there appears a prima facie case Under Section 436, I.P.C. against the accused persons. Hence cognizance is taken Under Section 436, I.P.C. Issue summons to the accused persons fixing 8-10-93 for appearance."
4. From the above it is crystal clear that the learned Magistrate did not keep himself alive to the observation of this Court while taking cognizance of the offence, inasmuch as he did not afford reasonable opportunity to the accused persons to raise all possible contentions. It would appear from the record that on the date fixed no order could be passed as the record was not available. The case then suffered three adjournments. Lastly on 20-8-93 learned Magistrate passed the impugned order without affording opportunity of hearing to the accused persons in a mechanical manner and without applying his judicial mind and therefore, the same being unsustainable in law has to be set aside. Consequently { would have remanded the case with a direction to the learned Magistrate to pass orders in accordance with law keeping in mind the observation of this Court. But since argument was advanced on behalf of the accused persons that as the case has been compromised between the parties, the Court should quash the proceeding or direct the lower Court to compound the offence. In view of the aforesaid submissions made at the Bar, the questions that arise for consideration are:
(a) Whether the Court can permit the parties to compound a non-compoundable offence; and
(b) Whether the Court, in view of such compromise, can quash the proceeding in exercise of inherent power under Section 482, Cr. P.C. Learned. Counsel for the accused persons relying upon a decision of this Court in Hari Mohapatra v. State of Orissa, (1996) 10 OCR 533 : (1996 Cri LJ 2952), urged that this Court would be well within its jurisdiction to quash a proceeding of non-compoundable offence by invoking to inherent power when amicable settlement has been arrived at between the parties.
5. Section 320 of the Code of Criminal Procedure (for short, 'the Code') deals with compounding of offences under the Indian Penal Code. Different tables given thereunder specify the offences which are compoundable between the parties with or without permission of the Court. In the present case offence under Section 436, I.P.C. being non-compoundable, the Court does not have power to compound the same even if the parties have arrived at an amicable settlement. Then the question arises whether the High Court in view of the compromise can quash the proceeding by invoking inherent power under Section 482 of the Code. The legislature in its wisdom has invested inherent powers with the High Court with the object to pass such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of the Court or otherwise to secure ends of justice. It is well-settled by the Supreme Court in a catena of decisions that inherent power cannot be exercised in regard to matters specifically covered by other provisions of the Code. |See M.P. Kapur v. State of Punjab, AIR 1960 SC 866: (1960 Cri LJ 1239) and Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47 : (1978 Cri LJ 165)].
6. In Dassu v. Manitra, reported in 1976 Cri LJ 1221 (All), it was held that inherent power of the Court under Section 482 cannot be invoked for the purpose of circumventing the express provisions under the Code. In another decision reported in AIR 1981 SC 736 : (1981 Cri LJ 296) (Smt. Sooraj Devi v. Pyare Lal), the Supreme Court held :
"Now it is well settled that the inherent power of the Court cannot be exercised for doing that which is specifically prohibited by the Code...."
In Mosst. Simrikhia v. Smt. Dolley Mukherjee alias Smt. Chabbi Mukherjee, AIR 1990 SC 1605 : (1990 Cri LJ 1599), the Supreme Court while dealing with the question as to whether the High Court can review its earlier order by invoking inherent power under Section 482 of the Code, observed thus :
"...The inherent power under Section 482 is intended to prevent the abuse of the process of the Court and to secure ends of justice. Such power canot be exercised to do something which is expressly barred under the Code...."
7. From the above authoritative pronouncements it is crystal clear that the High Court in exercise of the inherent power as envisaged in Section 482 of the Code can pass any order to prevent abuse of process of the Court and to secure ends of justice, but however, it cannot pass such order if the same runs contrary to the provisions of the Code or any other Act or there is any statutory prohibition. Duty of the Court is to expound and not to legislate is a fundamental rule. There is a marginal area in which the courts mould or creatively interpret legislation and they are thus finishers, refiners and polishers of legislation which comes to them in a state requiring varying degrees of further proceeding. In the words of Cardozo, "The Judge is not to innovate at pleasure. He is not a knight-errant roading at Will in pursuit of his own ideal of beauty or of goodness". Approving the observation of Cardozo, the Supreme Court in the case of Idul Hasan v. Rajindra Kumar Jain, AIR 1990 SC 678, held (Para 8):
"...The rights of the parties must be determined in accordance with the provisions of law. What justice of the case entails, and what is just, due and the law says, is to be given to each one whether being a landlord or a tenant...."
Dealing with similar question in another decision in the case of State of Kerala v. Mathai Verghese, 1987 Cri LJ 308 : (AIR 1987 SC 33), the Supreme Court observed (Para 1):
"... In interpreting the provision the exercise undertaken by the Court is to make explicit the intention of the legislature which enacted the legislation. It is not for the Court to reframe the legislation for the very good reason that the powers to 'legislate' have not been conferred on the court."
8. In this context I may usefully quote a passage from the book 'Principles of Statutory Interpretation', Fifth Edition, written by Justice G.P. Singh, former Chief Justice, Madhya Pradesh High Court:
"The Courts are warned that they are not entitled to usurp legislative function under the disguise of interpretation and that they must avoid the danger of an apriori determination of the meaning of a provision based on their own preconceived notions of ideological structure or scheme into which the provision to be interpreted is somehow fitted. Caution is all the more necessary in dealing with a legislation enacted to give effect to policies that are subject of bitter public and parliamentary controversy for in controversial matters there is room for difference of opinion as to what is expedient, what is just and what is morally justifiable; it is the Parliament's opinion in these matters that is paramount."
9. Bearing in mind the powers and functions of the Court as aforesaid, let me now turn to the decision of this Court rendered in Hari Mohapatra (1996 Cri LJ 2952) (supra). In the said case, learned single Judge taking note of the affidavit of the informant came to hold that when the victim is no longer willing to support the prosecution case, it would not be in the interest of justice to proceed further in the case and having so observed, he quashed the proceeding. The very same learned Judge reiterated his view in the case of Sudhakar Nayak v. State, (1996) 11 OCR 77. In course of argument various contentions were raised and number of decisions were referred to. There being conflicting views of this Court, learned single Judge relied upon two earlier judgments in the cases of Md. Khaliur Rahman v. State of Orissa, (1988) 1 OCR 564 : (1989 Cri LJ 1845) and Debendra Kumar Mohanty v. State, (1989) 1 OLR 183, and held that exercise of power under Section 482 for quashing a criminal case on the ground of the dispute having been amicably settled between the parties does not conflict with Section 320(9) of the Code. Citing example that continuance of the proceeding in the circumstances will not subserve the interest of justice, he observed :
"...in a case involving matrimonial offence, such as under Section 498A, Indian Penal Code, which is not compoundable would it be, just and proper to insist upon the confidance of a criminal proceeding even if the warring spouses have made up? In offences of kidnapping, would it be in the interest of justice to continue prosecution even if the accused and the alleged victim also have married each either? There can be many such illustrations. Ultimately, the discretionary power under Section 482, of the Code has to he exercised judiciously keeping in view all the materials, facts and circumstances of the case including the question of impossibility of securing a conviction, or establishing amity between the warring factions, and the like."
With respect, I do not agree with the reasonings given by the learned single Judge to quash a proceeding by invoking inherent power when there is a statutory prohibition for so doing. The broad principle behind Section 320 of the Code is that the offences which are essentially private in nature and relatively not serious are compoundable. Evidently therefore, in certain offences where the interest of the society is vitally involved, parties are not permitted to come to terms. Maintenance of an orderly society being the prime consideration in limiting compounding of the offence, High Court cannot go behind the statue and accept the compromise and consequently quash the proceeding of a non-compoundable offence even if such compromise is for the good of the individual concerned. For example, kidnapping of a minor girl with intent to marry her is an offence punishable under Section 356, I.P.C. and is non-compoundable. It is impermissible for the High Court to enlarge its jurisdiction and bring the proceeding to a close because the parties having adjusted the matter between themselves. It is no doubt true, refusal to act upon the compromise will have ultimate effect on the marital abode of the offender and the victim, but since the act is an offence, the proceeding shall have to continue till it reaches finality.
10. I may now turn to other decisions bearing on the issue. In the decision reported in (1988) 1 OCR 564 : (1989 Cri LJ 1845) (supra), the offences alleged against the accused were under Sections 506 and 294, I.P.C, of which offence under Section 294, although is not compound-able, but because of the compromise this Court held that continuance of the prosecution would not achieve any beneficial result nor would be an aid to achieving either any social or public justice and quashed the proceeding by invoking inherent power. From the judgment it appears that the Court was not addressed as to whether resort to Section 482 would be against the prohibition contained in Section 320.
11. The next decision reported in 1989 (1) OLR 183 (supra) relates to an offence punishable under Section 361. I.P.C. The allegation against the accused was that he kidnapped the minor daughter of the informant from his lawful custody. On information being lodged to the police, a case was registered and investigation taken up in course of which the accused was arrested. On being moved, this Court released the accused on bail since the marriage of the girl who had in the meantime become major had been settled with him. Later the accused moved the Court to quash the proceeding. Learned single Judge accepted the contention made at the Bar that continuance of the proceeding would not only be a harassment to the petitioner and the victim girl but also would affect their marital relationship and having so held, be quashed the whole proceeding. However, the same learned single judge has taken a contrary view in another case reported in (1991) 4 OCR 25 : 199 Cri LJ 758 (Sanatan Ram v. State). In the said case argument was advanced that when parties have compounded the offence, a direction should be given to the trial Court to compound the same on an application being filed to that effect. In support of such contention, reliance was placed on a decision of the Supreme Court reported in AIR 1988 SC 211: (1989 Cri LJ 121) (Mahesh Chandra v. State of Rajasthan). While not agreeing with such contention, learned single Judge observed that in special cases Supreme Court may have the power to direct compounding of non-compoundable offence, but the High Court has no such power. Referring to Section 320 of the Code he held that when the offences are not compounding, no Court has jurisdiction under any provision of the Code either to compound the offence or permit such compounding.
12. In Gopal Krishna Routa v. State of Orissa, (1989) 2 OCR 128, challenge was made to the order of the learned Magistrate taking cognizance of the offence. While the case was pending, a petition for compounding the offence was filed. One of the offences of which cognizance was taken was one under Section 307, I.P.C. and was not compoundable. Question was raised whether this Court in exercise of inherent power can permit compromise of the offences which are not compoundable. Though argument was advanced in support there of but it was finally given up.
13. Similar question came up for consideration in Golak Chandra Nayak v. State of Orissa, 1992 OCR 461 : (1992 Cri LJ 274), where it was held that the Court in exercise of inherent power cannot direct compounding of offence which is impermissible under Section 320 of the Code. In my considered opinion the views taken in the decisions rendered in Sanatan (1991 Cri LJ 758) (Orissa) (supra) are in accord with the statutory provision of the Code. Of course, the decision of the Supreme Court in Mahesh Chandra (1989 Cri LJ 121) (supra) somewhat supports the view taken in Hari Mohapatra (1996 Cri LJ 2952) (Orissa) (supra) and Sudhakar (1996 (1) OCR 77) (supra), but from that it cannot be deduced that their Lordships have declared the law of universal application notwithstanding the statutory bar contained in the Code. In the facts and circumstances of that case, the Supreme Court itself had compounded the offence and directed the trial Court to record the compromise. The exercise of power in issuing such direction was not under any of the provisions of the Code but under Article 142 of the Constitution.
14. Further reference can be made to some other decisions of the Supreme Court which are directly on the point. In Ram Pujan v. State U.P., AIR 1973 SC 2418 : (1973 Cri LJ 1612), the offence under Section 326, I.P.C. was compromised between the parties and an application to that effect was filed before the High Court in the appeal. Since the offence was non-compoundable. Since the offence was non-compoundable, permission to compound the offence was not granted. However, in view of the compromise the sentence was reduced from 4 years to 2 years' rigorous imprisonment. The matter then came to the Supreme Court and their Lordships taking into consideration the relationship between the parties and the amicable settlement held:
"The major offence for which the appellant is convicted is no doubt non-compoundable, but the fact of compromise can be taken into account in determining the quantum of sentence."
From the above it clearly appears that refusal of the High Court to compound the non-compoundable offence was upheld by the Supreme Court.
15. In another decision in the case of Rajinder Singh v. State Delhi Administration), AIR 1980 SC 1200, the Court permitted compounding one of the offences, i.e. offence under Section 325, I.P.C. and so far as the other offence under Section 452, I.P.C. was concerned, the same being non-compoundable, the Court while maintaining the conviction reduced the sentence of the accused to the period already undergone.
16. A very interesting case came before the Supreme Court in the case of Ramesh Kumar v. Ram Kumar, AIR 1984 SC 1029 : (1984 Cri LJ 832). In that case accused persons, two in number, were convicted under Section 302/34, I.P.C. and sentenced to undergo imprisonment for life. On appeal, the High Court of Punjab and Haryana acquitted one of the accused and converted the conviction of the other accused to one under Section 304, I.P.C. and reduced the sentence to two years' rigorous imprisonment. The reason for arriving at such conclusion was that at the inter-vention of the villagers compromise had been brought about, on the basis of which one of the accused gifted away three acres of land in favour of the deceased's widow. Disapproving the High Court's ultimate findings and conclusion, the Supreme Court observed:
"We can only say that the judgment of the High Court has left us shocked and perplexed. We are at a total loss to understand it. The entire system of administration of criminal justice is reduced to a mockery. If the judgment of the High Court is upheld, it is as if a person who can afford to make gifts of land or money to the heirs of the victim may get away even with a charge of murder. Courts are to dispense justice, not to dispense with justice. And, justice to be dispensed is not palimtree justice or idiosyncratic justice. . . ."
(Emphasis supplied)
17. A learned single Judge of Andhra Pradesh High Court in the case reported in 1995 Cri LJ 3964 (Annamdevula Srinivasa Rao v. State of A.P.) having made an in-depth study and after review the case laws on the subject, concluded that the High Court does not have power to direct the subordinate court to compound the offences which are otherwise non-compoundable. This judgment rendered by the learned single Judge has been approved by the Full Bench of the same High Court in the case of Smt. Ghousia Sultana v. Mohd. Gouse Baig, 1996 Cri LJ 2973.
18. Similar view has also been taken by the Calcutta High Court in Sk. Saifuddin Mandal v. State, 1983 Cri LJ 109, where it was held that no offence can be compounded except as provided by Section 320 of the Code.
19. On a conspectus of the various judicial pronouncements as discussed above and bearing in mind the statutory provision in Section 320 of the Code, I am of the firm view that compounding of non-compoundable offence being impermissible the High Court in exercise of inherent power cannot quash the proceeding merely because the parties have amicably settled the dispute between them.
20. For the reasons stated above, since I respectfully disagree with the judgments of this Court reported in (1988) 1 OCR 564 : (1989 Cri LJ 1845), (1989) 1 OLR 183, (1996) 10 OCR 533 and (1996) 11 OCR 77, the matter may be placed before the Hon'ble Chief Justice for reference to a larger Bench for authoritative pronouncement on the question whether on the basis of a compromise a case of non-compoundable offence can be quashed by the High Court in exercise of inherent power under Section 482, Cr. P.C.