STATE OF GUJARAT Vs. RAJPUT BHIKHAJI KALUJI

JUDGEMENT

(1.) These two appeals, one by the State of Gujarat for enhancement of the sentence against the respondent-accused Bhikhaji Kaluji only, and the another by Bhikhaji Kaluji and three others against their respective orders of conviction and sentence, arise out of the common judgment and order dated 31- 12-1982, rendered in Sessions Case No. 108 of 1982 by the learned Assistant Sessions Judge, Mehsana, wherein respondents on their being tried for the alleged offences punishable under Secs. 307, 326, 323, 324 of I.P.C. and Sec. 135 (i) of the Bombay Police Act, 1951, were at the end of the trial ordered to be convicted and sentenced as under :

(2.) Recalling few relevant facts of the prosecution case in brief, it may be stated that incident in question took place on 21-3-1981 at 8-00 p.m. on a public road in village-Mamvada, Taluka Sidhpur, wherein all the aforesaid accused assaulted : (1) Keshar Dana (P.W.-12, Exh. 34); (2) Dhanraj Ramaji (P.W.-4, Exh. 19); and (3) Jesang Ramaji (P.W.-11, Exh. 33) causing injuries to them. It is further alleged that at the time of incident, the accused No. 1-Bhikhaji Kaluji was armed with Dhariya and he gave a blow with it on the head of Keshar Dana (P.W.-12, Exh. 34); the accused No. 4 was armed with an axe and inflicted a blow with it on Jesang Ramaji (P.W.-11, Exh. 33); while accused Nos. 2 and 3 who were armed with sticks gave blows with it on Dhanraj Ramaji (P.W.-4, Exh. 19) and Jesang Ramaji (P.W.-ll, Exh. 33). The motive alleged for the incident in question was a fact that one Dhanraj Ramaji (P.W.-4, Exh. 19) had taken a cart on hire of one Madarji Chelaji (not examined) and that the accused persons also wanted the said cart, and as a result of this the dispute arose between the said parties giving rise to the present incident.

(3.) When these two appeals were called out for final hearing today, Mr. Ashok Shah, learned Advocate appearing for the accused submitted one application under Sec. 320(5) of the Code, the same being Misc. Criminal Application No. 715 of 1992 inter alia praying for granting necessary permission to compound the alleged offences between the accused and the injured parties. In a joint compromise purshis duly signed by the concerned parties and also identified and signed by the respective learned Advocates, annexed to the said application, it has been stated that the accused and the injured prosecution witnesses were residing in the same village, namely, Mamvada since last many years, and that, neither anytime before the alleged incident that took place on 21-3-1981 nor thereafter in last 11 years any further untoward incident had taken place between them. That the alleged incident had unfortunately arisen out of some misunderstanding at the relevant time and thereafter with the help of the good offices and intervention of some respectable citizens of the village, the embittered relations between the parties have been softened and amicably settled out of the Court and as a result of which, at present, better, cordial and peaceful relations have been restored once again between them bringing about peace in the village. In the concluding paragraph of the said compromise purshis, it has been specifically stated that the outcome of the said compromise was happy and the same was accepted voluntarily and without any sort of external pressure brought upon them. Mr. Ashok Shah, on the basis of aforesaid compromise purshis has submitted before vs that all the four accused persons, the injured prosecution witnesses as well as the local learned Advocate Mr. C. S. Rajput who has identified the accused, were present before the Court and therefore the compromise purshis submitted to this Court may be accepted and appropriate orders acquitting the accused be passed. Mr. Ashok Shah further submitted that the concerned parties have come from a long distance, and therefore, if the matter is heard and decided today, they may not have to unnecessarily stay over here. Now indeed there cannot be any objection for any Court to take into consideration the compromise arrived at between the parties outof- the Court, while deciding the matter. But, at the same time, it is indeed not possible to accept the request of the learned Advocate to decide the matter now and here immediately. In the present case, it is not possible for us to accept the said request of the learned Advocate Mr. Shah for two reasons : firstly, so far as the accused No. 1-Bhikhaji Kaluji is concerned, he is convicted for the alleged offence punishable under Sec. 307 of I.P.C. and sentenced to suffer R.I. for two years and some fine. Now, this is an offence which is not compoundable even with the permission of the Court. Secondly, as regards those offences which are compoundable with the permission of the Court under Sec. 320(5) of Cr.P.C., it may be stated that before any Court can legitimately exercise its discretion to permit the composition of offences there must be some cogent and tangible material available on the record which can help, enable the Court to exercise its discretion reasonably. The paper book containing the evidence at trial standing by itself may not be sufficient as over and above the material facts and circumstances of the case, there must be some further independent material to render satisfaction to the judicial conscience of the Court that the composition arrived at between the parties was voluntary, bona fide and genuine one and that the accused have not been pressurised. Thus, granting of permission to compound the offences by the Court is not an idle and mechanical formality which can be undertaken at any time on mere asking of the parties without giving the Court reasonable opportunity to assess the bona fides of the compromise purshis. These days it is highly risky to accept such compromises without giving prosecution opportunity to make an indepth inquiry into the matter. In fact, whenever any such compromise purshis are filed before the Court, ordinarily, it should be the first and foremost duty of every such Court to find out of its own whether the compromise arrived at between the parties is voluntary, true, bona fide and genuine one as in these days of increasingly unbelievable broken down condition of law and order situation and terrorism prevailing all around, it is not impossible to rule out some possibility of such compromise being extorted at the point of some fear, black-mailing and/or some direct or indirect criminal intimidation. In this view of the matter, any Court faced with a situation wherein the offence could be compounded with the permission of the Court depending upon the facts and circumstances of that particular case, it should not mechanically embark upon exercising such vital discretion without taking adequate care to satisfy its conscience regarding the voluntary, genuine and bona fide character of such compromise purshis. In order to do this, it is desirable that a copy of such joint purshis is first of all handed over to the concerned Investigating Officer or for that purpose to some responsible Police Officer of that area to verify the contents of the same as well as to find out whether there exists any previous convictions or any other criminal antecedents and general conduct and character of the accused having any bearing on compromise. Such an exercise in the opinion of this Court ordinarily should be a condition precedent before the Court can safely and legitimately act upon such compromise purshis putting its final seal of approval granting the composition of the offences. At this stage, Mr. Ashok Shah submitted that day in and day out such compromise purshis are readily accepted and acted upon by many Courts and in that view of the matter, there will be no harm if in the present case also same is accepted after asking the parties present before the Court about its voluntary, genuine and bona fide character of the compromise purshis. We do not know as regards alleged practice followed by some of the Courts in matters which are required to be compounded with the previous permission of the Court. Any way, if such practice is followed by some Courts, then in that case, we may sound a word of caution that the same is simply improper as undue haste in accepting the composition between parties without properly verifying the voluntary, bona fide and genuine nature of the same, in a given case may bring about unimaginable consequences of gagging the voice of justice giving upper hand to the criminals. In fact, this type of hurried practice is a potential threat to the "administration of justice" and in turn to the ''Rule of law" which requires to be scrupulously and zealously guarded by all the Courts concerned. Under the circumstances in the background of the view that we have taken, as stated above, we hereby direct the learned A,P.P. Mr. K. P. Raval to call any responsible Police Officer of the area asking him to conduct an indepth necessary inquiry into the matter of the alleged compromise purshis and find out whether the same is voluntary, bona fide, genuine and arrived at without any sort of external pressure or influence brought on the accused and submit thereafter his report duly sworn by him on or before the next date of hearing i.e., 6/03/1992. 6th March, 1992.