Gian Singh vs. State of Punjab and Ors.

Judges: R.M. Lodha, Anil R. Dave and S.J. Mukhopadhaya Facts:

The matter has been referred before this Bench by a two-Judge Bench (Markandey Katju and Gyan Sudha Misra, JJ.) as they doubted the correctness of the decisions of this Court in B.S. Joshi and Ors. v. State of Haryana and Anr., MANU/SC/0230/2003, Nikhil Merchant v. Central Bureau of Investigation and Anr., MANU/SC/7957/2008 and Manoj Sharma v. State and Ors., MANU/SC/8122/2008. The Petitioner, in present case, has been convicted under Sections 420 and 120B of Indian Penal Code (IPC). While the appeal filed by the Petitioner before the Sessions Judge is pending, the Petitioner has filed an application before the Sessions Judge for compounding the offences which was dismissed. Thereafter, the Petitioner filed a petition under Section 482 of Code of Criminal Procedure (CR.PC) for quashing of the FIR on the ground of compounding the offence. As the petition under Section 482 of Cr.PC has been dismissed by the High Court, the Petitioner has filed SLP before the two judge bench. The Petitioner has relied on three decisions of this Court, all by two Judge Benches in which the Court has indirectly permitted compounding of non-compoundable offences. As the Bench was of the opinion that the above three decisions require to be re-considered on the basis that something which cannot be done directly cannot be done indirectly, the matter was placed before Hon'ble Chief Justice of India for constituting a larger Bench and so the matter has been referred to present bench.

The Facts of three cases which came up for consideration are:

B.S. Joshi MANU/SC/0230/2003: The husband was one of the Appellants while the wife was Respondent No. 2 in the appeal before this Court. They were living separately An FIR was registered under Sections 498-A, 323 and 406 of IPC by wife. During pendency of criminal case, the dispute between the husband and wife and their family members was settled. On the basis of settlement, the matter was taken to the High Court by both the parties and they prayed for quashing the criminal proceedings initiated by wife. The Petition was dismissed as the offences under Sections 498-A and 406 of IPC were non-compoundable and the inherent powers under Section 482 of Cr.PC could not be invoked to by-pass Section 320 of Cr.PC. The matter reached to SC and the present court held that the High Court in exercise of its inherent powers could quash criminal proceedings or FIR or complaint and Section 320 of CrPC did not limit or affect the powers under Section 482 of Cr.PC.

Nikhil Merchant MANU/SC/7957/2008: Andhra Bank has filed a suit for recovery of the amount payable by the borrower company, M/s. Neemuch Emballage Ltd. on account of default in repayment of loan. The suit for recovery was filed against the company, its Managing Director and the officials of Andhra Bank for diverse offences, namely, Section 120-B read with Sections 420, 467, 468, 471 of IPC read with Sections 5(2) and 5(1)(d) of Prevention of Corruption Act, 1947 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The suit was compromised and on the basis of the same, an application has been filed by Accused for discharge from the criminal complaint. The said application was rejected by the Special Judge (CBI), which came to be challenged before the Bombay High Court. The High Court rejected the application for discharge from the criminal cases and matter reached to SC. The SC having regard to the facts of the case and the earlier decision of this Court in B.S. Joshi MANU/SC/0230/2003 set aside the order of the High Court and quashed the criminal proceedings by consideration of the matter

Manoj Sharma MANU/SC/8122/2008: The Court was concerned with the question whether an F.I.R. under Sections 420/468/471/34/120-B of IPC can be quashed either under Section 482 of Cr.PC or under Article 226 of Constitution when the accused and the complainant have compromised and settled the matter between themselves. Supreme Court in this case has observed that criminal proceedings in the case deserved to be quashed but observed that question may have to be decided in some subsequent decision or decisions (preferably by a larger Bench) as to which non-compoundable cases can be quashed Under Section 482 of Cr.PC or Article 226 of the Constitution on the basis that the parties have entered into compromise.

Issues:

(i) Whether the High Court has the power Under Section 482 of the Code to quash the criminal proceedings or allow the compounding of the offences in the cases which have been specified as non-compoundable offences under the provisions of Section 320 of the Code?

(ii)Whether B.S. Joshi MANU/SC/0230/2003, Nikhil Merchant MANU/SC/7957/2008 and Manoj Sharma MANU/SC/8122/2008 were not correctly decided?

Law:

Code of Criminal Procedure, 1973 - Section 320

Code of Criminal Procedure, 1973 - Section 482 - Saving of inherent power of High Court

Contentions: 

Petitioner

(i) In SLP(Crl.) No. 6324 of 2009: The inherent power of the High Court to quash a non-compoundable offence was not circumscribed by any of the provisions of the Cr.PC, including Section 320. Section 482 is a declaration of the inherent power pre-existing in the High Court and so long as the exercise of the inherent power falls within the parameters of Section 482, it shall have an overriding effect over any of the provisions of the Cr.PC. Thus, in exercise of its inherent powers under Section 482 of Cr.PC, the High Court may permit compounding of a non-compoundable offence provided that in doing so it satisfies the conditions mentioned therein. Learned senior Counsel would submit that the power to quash the criminal proceedings Under Section 482 of Cr.PC exists even in non-compoundable offence but its actual exercise will depend on facts of a particular case. He submitted that some or all of the following tests may be relevant to decide whether to quash or not to quash the criminal proceedings in a given case; (a) the nature and gravity of case; (b) does the dispute reflect overwhelming and pre-dominantly civil favour; (c) would the quashing involve settlement of entire or almost the entire dispute; (d) the compromise/settlement between parties and/or other facts and the circumstances render possibility of conviction remote and bleak; (e) not to quash would cause extreme injustice and would not serve ends of justice and (f) not to quash would result in abuse of process of court.

(ii)In Special Leave Petition (Crl.) No. 5921 of 2009 : Section 482 of Cr.PC is complete answer to the reference made to the larger Bench. Section 320 did not limit or affect the inherent powers of the High Court. Notwithstanding Section 320, High Court can exercise its inherent power, inter alia, to prevent abuse of the process of any court or otherwise to secure the ends of justice. To secure the ends of justice is a wholesome and definite guideline. It requires formation of opinion by High Court on the basis of material on record as to whether the ends of justice would justify quashing of a particular criminal complaint, FIR or a proceeding. When the Court exercises its inherent power under Section 482 in respect of offences which are not compoundable taking into account the fact that the accused and the complainant have settled their differences amicably, it cannot be viewed as permitting compounding of offence which is not compoundable. In cases of civil wrongs which also constitute criminal offences, the High Court may pass order Under Section 482 once both parties jointly pray for dropping the criminal proceeding initiated by one of them to put an end to the dispute and restore peace between the parties.

(iii) In Special Leave Petition (Crl.) No. 8989 of 2010: The court should have positive view to quash the proceedings once the aggrieved party has compromised the matter with the wrong doer. If the court did not allow the quashing of FIR or complaint or criminal case where the parties settled their dispute amicably, it would encourage the parties to speak lie in the court and witnesses would become hostile and the criminal proceeding would not end in conviction. Court could also consider the two questions (1) can there be partial quashing of the FIR qua accused with whom the complainant/aggrieved party enters into compromise. (2) can the court quash the proceedings in the cases which have not arisen from the matrimonial or civil disputes but the offences are personal in nature like grievous hurt (Section 326), attempt to murder (Section 307), rape (Section 376), trespassing (Section 452) and kidnapping (Section 364, 365) etc.

Respondent

(i) In Special Leave Petition (Crl.) No. 6138 of 2006: The real question that needs to be considered by this Court in the reference is whether Section 320(9) of Cr.PC creates a bar or limits or affects the inherent powers of the High Court Under Section 482 of Cr.PC. It was submitted that Section 320(9) of Cr.PC does not create a bar or limit or affect the inherent powers of the High Court in the matter of quashing any criminal proceedings. It has been consistently held that the High Court has unfettered powers Under Section 482 of Cr.PC to secure the ends of justice and prevent abuse of the process of the Court. On compromise between the parties, the High Court in exercise of powers Under Section 482 can quash the criminal proceedings, more so the matters arising from matrimonial dispute, property dispute, dispute between close relations, partners or business concerns which are predominantly of civil, financial or commercial nature.

(ii)Learned Additional Solicitor General referred to the scheme of Cr.PC and submitted that in any criminal case investigated by police on filing the report Under Section 173 of Cr.PC, the Magistrate, after applying his mind to the chargesheet and the documents accompanying the same, if takes cognizance of the offences and summons the accused and/or frames charges and in certain grave and serious offences, commits the accused to be tried by a court of Sessions and the Sessions Court after satisfying itself and after hearing the accused frames charges for the offences alleged to have been committed by him, the Code provides a remedy to accused to challenge the order taking cognizance or of framing charges. Similar situation may follow in a complaint case. Learned Additional Solicitor General submitted that power Under Section 482 of Cr.PC cannot be invoked in the non-compoundable offences since Section 320(9) expressly prohibits the compounding of such offences. Quashing of criminal proceedings of the offences which are non-compoundable would negative the effect of the order of framing charges or taking cognizance and therefore quashing would amount to taking away the order of cognizance passed by the Magistrate. Further, when the Court takes cognizance or frames charges, it is in accordance with the procedure established by law. Once the court takes cognizance or frames charges, the method to challenge such order is by way of appropriate application to the superior court under the provisions of the Code. The High Court has no power to quash criminal proceedings in regard to offences in which a cognizance has been taken by the Magistrate merely because there has been settlement between the victim and the offender because the criminal offence is against the society.

Analysis:

(i) Section 320 of Cr.PC articulates public policy with regard to the compounding of offences. It catalogues the offences punishable under Indian Penal Code which may be compounded by the parties without permission of the Court and the composition of certain offences with the permission of the court. The offences punishable under the special statutes are not covered by Section 320. When an offence is compoundable Under Section 320, abatement of such offence or an attempt to commit such offence or where the accused is liable Under Section 34 or 149 of IPC can also be compounded in the same manner. A person who is under 18 years of age or is an idiot or a lunatic is not competent to contract compounding of offence but the same can be done on his behalf with the permission of the court. If a person is otherwise competent to compound an offence is dead, his legal representatives may also compound the offence with the permission of the court. Where the accused has been committed for trial or he has been convicted and the appeal is pending, composition can only be done with the leave of the court to which he has been committed or with the leave of the appeal court, as the case may be. The revisional court is also competent to allow any person to compound any offence who is competent to compound. The consequence of the composition of an offence is acquittal of the accused. Sub-section (9) of Section 320 mandates that no offence shall be compounded except as provided by this Section. Obviously, in view thereof the composition of an offence has to be in accord with Section 320 and in no other manner.

(ii) Section 482 of Cr.PC, as its very language suggests, saves the inherent power of the High Court which it has by virtue of it being a superior court to prevent abuse of the process of any court or otherwise to secure the ends of justice. It begins with the words, 'nothing in this Code' which means that the provision is an overriding provision. These words leave no manner of doubt that none of the provisions of the Code limits or restricts the inherent power. The guideline for exercise of such power is provided in Section 482 itself i.e., to prevent abuse of the process of any court or otherwise to secure the ends of justice. As has been repeatedly stated that Section 482 confers no new powers on High Court; it merely safeguards existing inherent powers possessed by High Court necessary to prevent abuse of the process of any Court or to secure the ends of justice. It is equally well settled that the power is not to be resorted to if there is specific provision in the Code for the redress of the grievance of an aggrieved party. It should be exercised very sparingly and it should not be exercised as against the express bar of law engrafted in any other provision of the Code. In different situations, the inherent power may be exercised in different ways to achieve its ultimate objective. Formation of opinion by the High Court before it exercises inherent power Under Section 482 on either of the twin objectives, (i) to prevent abuse of the process of any court or (ii) to secure the ends of justice, is a sine qua non.

(iii) In the very nature of its constitution, it is the judicial obligation of the High Court to undo a wrong in course of administration of justice or to prevent continuation of unnecessary judicial process. This is founded on the legal maxim quando lex aliquid alicui concedit, conceditur et id sine qua res ipsa esse non potest. The full import of which is whenever anything is authorised, and especially if, as a matter of duty, required to be done by law, it is found impossible to do that thing unless something else not authorised in express terms be also done, may also be done, then that something else will be supplied by necessary intendment. Ex debito justitiae is inbuilt in such exercise; the whole idea is to do real, complete and substantial justice for which it exists. The power possessed by the High Court Under Section 482 of the Code is of wide amplitude but requires exercise with great caution and circumspection. It needs no emphasis that exercise of inherent power by the High Court would entirely depend on the facts and circumstances of each case. It is neither permissible nor proper for the court to provide a straitjacket formula regulating the exercise of inherent powers Under Section 482. No precise and inflexible guidelines can also be provided.

(iv) Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a court Under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment.

(v)Where High Court quashes a criminal proceeding having regard to the fact that dispute between the offender and victim has been settled although offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrong doing that seriously endangers and threatens well-being of society and it is not safe to leave the crime-doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without permission of the Court. In respect of serious offences like murder, rape, dacoity, etc; or other offences of mental depravity under Indian Penal Code or offences of moral turpitude under special statutes, like Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between offender and victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to victim and the offender and victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or F.I.R if it is satisfied that on the face of such settlement, there is hardly any likelihood of offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard and fast category can be prescribed.

Conclusion:

(i) 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 Section 320 of Cr.PC.

(ii) 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.

(iii) 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 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 favour 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 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.

(iv) Thus, it cannot be said that B.S. Joshi MANU/SC/0230/2003, Nikhil Merchant MANU/SC/7957/2008 and Manoj Sharma MANU/SC/8122/2008 were not correctly decided.

Relevant Precedents:

(i) Kulwinder Singh and Ors. v. State of Punjab and Anr. MANU/PH/0222/2007

(ii) Abasaheb Yadav Honmane v. State of Maharashtra MANU/MH/0218/2008