SUDHAKAR NAIK Vs. STATE

JUDGEMENT

(1.) This is an application filed by the accused person in G. R. Case No. 378 of 1995 in the file of the Judicial Magistrate, First Class, Nimapara, invoking the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') for quashing the criminal proceeding on the ground that the dispute among the rival parties has been amicably settled. Charge -sheet has been filed and cognisance has been taken of offences under Sections 147, 148, 323, 294, 506, 336, 427, 307 read with Section 149 of the Indian Penal Code. The informant and two others (injured persons) have entered their appearance through counsel and supported the submission of the petitioners. It is submitted on their behalf that there was a clash between the neighbouring villagers and, in fact, an application under Section 482 of the Code has been filed which is numbered as Criminal Misc. Case No. 1363 of 1996, for quashing the counter case. Mr. S. K. Nayak, the learned Additional Standing Counsel appearing on behalf of the State, submitted that since the offences are not compoundable, power under Section 432 of the Cods should not be exercised to quash the criminal proceeding.

(2.) THE learned counsel for the petitioners has placed reliance on the decision reported in AIR 1988 SC 2111 ( Mahesh Chand and Anr. v. State of Rajasthan). He has stated that even though an offence may not be compoundable, in a fit case in exercise of power under Section 482 of the Code, the High Court can quash a criminal proceeding to secure the ends of justice. He has further submitted that the principle laid down in the decision reported in AIR 1988 SC 2111 has been followed by the decisions of the Orissa High Court reported in (1994) 7 OCR 207 (Sudam Charan Barik v. State and Ors.) and (1996) 10 OCR 533(Hari Mohapatra and Anr. v. State of Orissa and Ors.). He has also placed reliance upon the decisions reported in (1988) 1 OCR 564 (Md. Khaliur Rahaman v. State of Orissa and Anr.); 1989 (i) OLR 183 (Debendra Kumar Mohanty v. State); (1993) 6 OCR 186 (Baby alias Sita Kumari Agrawal v. Officer -in -charge, Purighat Police Station and 3 others); (1995) 8 OCR 514 (Mrs. Rashmi Rekha Mohanty and Anr. v. State of Orissa and Ors.) and (1995) 9 OCR 495 (Ali Khan v. State of Orissa and Anr.), Where without specifically referring to the decision of the Supreme Court reported in AIR 1988 SC 2111 similar view had been expressed. In the decision reported in AIR 1988 SC 2 111, though the accused persons were acquitted by the trial Court, the High Court in appeal against acquittal had convicted them of the offence under Sec 307, Indian Penal Code, which was challenged in the special leave petition before the Supreme Court. In the Supreme Court, the parties filed a petition seeking permission to compound the offence. The Supreme Court while accepting such a plea directed the trial Judge to accord permission to compound the offence. Strictly speaking, the question whether a proceeding can be quashed under Section 482 of the Code on the ground of compromise in respect of non -compoundable offence had not been specifically raised, nor decided in the said case. However, following the said decision, in the decision reported in (1994) 7 OCR 207, an alleged offence under Section 307, Indian Penal Code, was quashed by this Court as the Court was satisfied that it was a fit case for exercising inherent jurisdiction of the Court in the interest of Justice, as the injuries were simple in nature and the parties had decided to settle up their dispute and live in peace. In the decision reported in (1995) 8 OCR 514 the dispute was between husband and wife. The Court held that the allegations did not make out a case under Section 307, Indian Penal Code, thought charge -sheet had been submitted under Sections 307 and 498A, Indian Penal Code. Considering the nature of injury, the Court held that no offence under Section 307 had been made out and even accepting the allegations to be true, it could be said that an offence under Section 323 -had been prima facie made out. The Court further held that the offence under Section 323 was compoundable and though Section 498A was not compoundable, since the parties had decided to live together, relying upon the decision of the Patna High Court in the case of Jai Prakash Churasia v. State of Bihar and Anr. 1994 (1) Crime 404, the criminal case was quashed In exercise of power under Section 482 of the Code. Similar view was expressed by the same learned Judge in the decision reported in (1995) 9 OCR 495, which again related TO a dispute between the husband and wife. In the decision reported in (1988)1 OCR 564, charge -sheet had been filed under Sections 506 and 294, Indian Penal Code. Though compromise was effected, the G. R. case was not dropped as the offence under Section 294 was not compoundable. The accused persons moved the High Court under Section 482 of the Code for quashing the proceeding. Considering the fact that continuance of the proceeding would be an abuse of the process of the Court and would degenerate itself to be a weapon of harassment and would not achieve any beneficial result nor would be in aid either of achieving any social or public justice, the High Court quashed the proceeding in exercise of power under Section 482 of the Code. In the decision reported in 1989 (I) OLR 183, the proceeding was quashed as the accused and the alleged victim had married each other. It was observed ; '....In the circumstances allowing the trial of the petitioner to continue would not only be harassment to the petitioner and family of the petitioner and of his wife but also is likely to affect the marital relationship. ... Prosecution of the petitioner in the peculiar circumstances would be more detrimental to the society than to its benefit. Accordingly, this is a fit case where the inherent power is to be exercised to. quash the prosecution. ...' In the decision reported in (1993) 6 OCR 186. which was, of course, a decision rendered in exercise of power under Arts. 226 and 227 of the Constitution of India, the criminal proceeding was quashed as the alleged kidnapper and the alleged victim had married each other. In the decision reported in (1996) TO OCR 533, the allegations were under Section 376/511, Indian Penal Code. The alleged victim as well as her mother who was the informant, filed petittion/affidavits stating that the dispute had been settled. Considering the fact of amicable settlement and the fact that the alleged victim who' was the sole witness, had filed petition/affidavit reiterating the fact that a compromise had already been effected, and as such continuance of the prosecution would have been an exercise in futility, the proceeding was quashed in exercise of power under Section 482 though the alleged offence was not compoundable.

(3.) I am unable to agree with the submission of the learned Additional Standing Counsel and the views expressed by the Andhra Pradesh High Court in the decision reported in 1995 Cri LJ 3964. The observation of the Supreme Court in the decision reported in AIR 1992 SC 248, to the effect that the order terminating the criminal proceedings is not supportable on the strict terms of Section 320 or 321 or 482, Cr PC does not have the effect of laying down the law in the broad terms indicated by the Andhra Pradesh High Court. In fact, in the Bhopal Gas Disaster case, there was no question of compounding the offence under Section 320, nor was there any application to withdraw the prosecution under Section 321 of the Code. Similarly, the question of invoking the power under Section 482 of the Code which is expressly vested in the High Court did not arise. That is the reason why the Supreme Court said that the order terminating the criminal proceeding was not supportable on the strict - terms of Section 320 or Section 321 of the Code. However, the Supreme Court has nowhere laid down that the power of the High Court under Section 482 of the Code was not exercisable in any case where parties had sought for quashing of criminal proceeding in respect of non -compoundable offences. Learned Additional Standing Counsel had also placed strong reliance upon the decisions of the Orissa High Court reported in (1989) 2 OCR 128(Gopal Krishna Routa and Ors. v. State of Orissa and Anr.) (1991) 4 OCR 25 (Sanatan Ram and Ors. v. State and Ors.) and (1992) 5 OCR 461 (Golak Chandra Nayak and Anr. v. State of Orissa and Ors.). In (1989) 2 OCR 128, the SDJM in a complaint case had taken cognisance or the offences under Sections 147,148, 448, 323, 324 and 307 read with Section 149, Indian Penal Code. The accused persons had filed a revision before the Sessions Judge who directed that the complaint case as well as the connected G.R. case should be clubbed together. The accused persons had approached the High Court under Section 482 of the Code against the revisional order of the Sessions Judge. During the pendency of the said case, a petition under Section 320 of the Code for compounding the offences was filed in the High Court. While the offences under Sections 448,323 and 324 were compoundable the other offences including the offence under Section 307, Indian Penal Code, were not compoundable and as such, the High Court stated that it was not possible to record the compromise and compound ail the offences. It was further observed : '......That apart, a question arose whether this Court in exercise of its inherent powers under Section 482 can permit compromise of offences which are not compoundable under Section 320 of the Code. After discussion at length Mr. Ratho was unable to support his contention by any decision of any of the High Courts and finally gave up the plea. The net result on this aspect is that the offence under Sections 448, 323 and 324. IPC are permitted to be compounded. The other offences under Sections 147,148, 326 and 307 read with Section 149, IPC cannot be compounded.' Unfortunately, the decision of the Orissa High Court reported in (1988) 1 OCR 564, was not cited before the learned Single Judge. Similarly .the decision of the Supreme Court reported in AIR 1988 SC 2111, was also not cited. As is apparent from the underlined portion, the question was ultimately given up by the learned counsel appearing in the case.Ultimately, however, the Court held that the order of cognisance in respect of the offence under Section 307, Indian Penal Code, was bad. The aforesaid decision is, therefore, distinguishable and should be confined to its own peculiar facts. In the decision reported in (1991) 4 OCR 25 (1991 (I) OLR 23), cognisance had been taken of the offences under Sections 147, 148, 336, 427, 454, 380, 294, 506,4 6, 511 read with Section 149, Indian Penal Code. The High Court was not inclined to quash the order of taking cognisance. In the High Court it was also pleaded that the parties had compromised and it was prayed that a direction should be given to the trial Court for compounding the offences on an application being filed to that effect in the trial Court. In the aforesaid context, it was observed that since the offences were not compoundable, the inherent jurisdiction under Section 482 of the Code cannot be exercised to defeat the legislative intention. Referring to the decisions of the Supreme Court reported in AIR 1988 SC 2111 and 1987 (2) JT 301 (Y. Suresh Sahu v. State of A. P. and Anr.), it was observed : 'In special cases. Supreme Court may have the power to direct compounding of non -compoundable offence. High Court has no such power and accordingly, I am not inclined to exercise inherent power under Section 482, Cr PC which would be contrary to the legislative intent.'' Nevertheless, after making such observations, the learned Judge proceeded to direct the State Government to consider the question of withdrawal from the prosecution as envisaged in Section 321 of the Code. Unfortunately, the attention of the learned Judge was not drawn to his own decision reported is 1989 (I) OLR 183, wherein, as already indicated, the proceeding was quashed on the ground that continuance of the proceeding would be, no doubt, harassment to the accused persons and would be more detrimental to the society than to its benefit. Similarly, the decision of the High Court reported in (1988) 1 OCR 564, was not brought to the notice of the learned Judge. In other words, the decision was rendered per incuriam without referring to two earlier decisions of the High Court on the point. Following the above decision and after referring to the decisions of the Supreme Court reported in AIR 1980 SC 1200 and AIR 1988 SC 2111. another learned Single Judge of this Court, in the decision reported in (1992) 5 OCR 461 = 1992(11) OLR 201 held? 'I am of the view that because the Supreme Court allowed an offence under Section 307, IPC to be compounded, this Court cannot in exercise of its inherent powers under Section 482 of the Code direct compounding an offence not permissible under Section 320 of the Code.' However, the learned Judge proceeded to consider the question as to whether the alleged offence under Section 307, Indian Penal Code, had been made out and ultimately held that since there was no material to charge the accused under Section 307, the charge should be altered to one1 under Section 324, Indian Penal Code.' It was further observed : 'I may , point out that the lower Court misled itself that the . legal representative of the deceased cannot enter into a compromise. This is erroneous, since Section 320(4)(b) of the Code provides that the legal representatives of the deceased persons are competent to compound such offence. Therefore, the lower Court is directed to alter the charge as indicated above and proceed to dispose of the case according to law. The parties if they still insist to compromise the case on the basis of the petition already filed, the Court shall permit them to compound the offence.' Unfortunately, the attention of the learned Judge was not drawn to the two earlier decisions of this Court reported in (1988) 1 OCR 564 and 1989 (I) OLR 183. It is thus clear that in the three decisions of the Orissa High Court reported in (1989) 2 OCR 128 ; (1991) 4 OCR 25 and (1992) 5 OCR 461, the earlier decisions of the Orissa High Court were not considered.