sat 1 wp 1299-2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1299 OF 2010 Popat Khandu Pisal & Ors. ...Petitioners vs. The State of Maharashtra ...Respondent Mr.Uday P. Warunjikar with Mr.Nikhilesh Pote, Mr.Nitesh Bhutekar, Mr.Pravartak Pathak for the Petitioners. Mr.A.S. Gadkari, APP for the State. CORAM : B.H. MARLAPALLE & U.D. SALVI, JJ. JULY 26, 2011 P.C. :- 1 This petition filed under Article 226 of the Constitution of India read with Section 482 of Cr.P.C. prays for the following relief :- (a) Be pleased to quash and set aside Criminal Complaint No.113 of 2002 registered at Byculla police station and the proceedings of Sessions Case No.635/2002 decided by the learned 2nd Ad-hoc Additional Sessions Judge at Sessions Court at Shewree, Mumbai, for the reasons sat 2 wp 1299-2010 mentioned in the memo of this Petition under Article 226 of the Constitution of India, 1950 and/or under Section 482 of Cr.P.C.” 2 CR No.113/2002 came to be registered with the Byculla Police Station, Mumbai, on the complaint lodged by petitioner no.5. It was alleged that petitioner nos.1 to 4 murdered the son of petitioner no.5 by name Ravindra on the suspicion that he was involved in an illicit relationship with the wife of petitioner no.2. On investigation into the said CR, a chargesheet came to be filed for the offences punishable under Section 148 read with Sections 149, 120B, 364 and Section 302 read with 149 of IPC. After the case was committed to the court of Sessions, it was listed as Sessions Case No.635/2002. The learned Additional Sessions Judge by his judgment and order dated 21st August, 2008 was pleased to convict all the four accused i.e. petitioner nos.1 to 4 for the offences punishable under Sections 302 and 120B of IPC. They have been awarded life sentence and this order of conviction and sentence came to be sat 3 wp 1299-2010 challenged in Criminal Appeal No.966/2008 filed by petitioner nos.2 to 4 and Criminal Appeal No.982/2008 filed by petitioner no.1. The appeals are pending before this Court. 3 This petition has been moved solely on the ground that the relations between petitioner no.5 on one hand and petitioner nos.1 to 3 on the other hand, after the incident, are normalized and they do not wish to go ahead with the court battle and spoil the lives of their families. They have compromised as they are related to each other and taken a decision to settle the entire dispute amicably. It is, on these grounds, the petitioners have prayed that CR No.113/2002 be quashed along with Sessions Case No. 635/2002, by invoking the inherent powers of this Court under Section 482 of Cr.P.C. 4 The Principal Secretary (Special), Home Department, Government of Maharashtra, has filed an affidavit-in-reply and opposed the petition. It has sat 4 wp 1299-2010 been submitted that the petitioners’ reliance on the Full Bench decision of this Court in the case of Abasaheb Yadav Honmane vs. State of Maharashtra {2008 ALL MR (Cr.) 952} cannot be accepted for the reliefs sought for in this petition and the inherent powers under Section 482 of Cr.P.C. are required to be invoked sparingly and only in exceptional cases and at an appropriate stage i.e. when the crime is under the investigation or the complaint is pending for trial before the competent court. It has been further stated that an offence punishable under the IPC is an offence against the society and it is the State which is responsible to ensure that the guilty are punished. When the trial in the case is resulted in an order of conviction and sentence and appeals against the said order are pending before this Court, the powers under Section 482 of Cr.P.C. cannot be invoked even by way of compromise between the complainant and the accused. It has been further stated that the penal law is recognized as an instrument of social engineering and every offence sat 5 wp 1299-2010 committed and more particularly, punishable under the IPC, is an offence against the State which is an aggrieved party, whereas the complainant may be the victim. The State has further expressed its apprehension that if such inherent powers under Section 482 of Cr.P.C. are exercised in such cases, it is likely that only those persons having either money or muscle power would rule and the rule of law will be at stake. Winning over the victim, witnesses and the complainant on the grounds of being relations, close neighbours or for any other reasons would stifle the prosecution and thus make the penal law ineffective. 5 Mr.Warunjikar, the learned Counsel for the petitioners submitted that petitioner no.5 is a victim as defined under Section 2(wa) of Cr.P.C. and he has compromised with the accused i.e. petitioners no.1 to 4 who are his relations and with the sole intention to lead his and his family’s life happily in future. When the parties have decided to sat 6 wp 1299-2010 compromise among themselves, this Court with an intention to do justice to both of them should invoke the inherent powers of Section 482 of Cr.P.C. and even when the appeals filed by the accused are pending before this Court against the order of conviction and sentence. He relied upon the following observations of the Full Bench of this Court in the case of Honmane (supra):- “ However, we hasten to add here that the inherent powers under Section 482 of Code include powers to quash FIR, investigation or any criminal proceedings pending before the High Court or any courts subordinate to it and are of wide magnitude and ramification. Such powers can be exercised to secure ends of justice, prevent abuse of the process of any court and to make such orders as may be necessary to give effect to any order under this Code, depending upon the facts of a given case. These powers are neither limited nor curtailed by any other provisions of the code including Section 320 of the Code. The Court could exercise this power in offences of any kind, whether compoundable or non-compoundable. However, such inherent powers are to be exercised sparingly and with caution and in sat 7 wp 1299-2010 conformity with the percepts indicated in paragraph 7.10 of this judgment. Further, the Court should ensure that object and purpose of passing any order in exercise of its inherent powers should be confined to one of the three categories stated in Section 482 of the Code.” Mr.Warunjikar also relied upon the following decisions of the Apex Court :- 1.Manish Jalan vs. State of Karnataka {(2008) 8 SCC 225}, 2.Madan Mohan Abbot vs. State of Punjab {(2008) 4 SCC 582}, 3.Nikhil Merchant vs. Central Bureau of Investigation and another {(2008) 9 SCC 677}, 4.Mohd. Rafi vs. State of U.P. (1998 SCC (Cri) 891), 5.Puttaswamy vs. State of Karnataka and another {(2009) 1 SCC 711}. 6 As per Mr.Warunjikar, when the petitioner no. 5 has decided to compromise and bring the disputes arising from the murder of the son to an end between himself and the petitioner nos.1 to 4, he could be compensated by determining a suitable amount of sat 8 wp 1299-2010 compensation payable under Section 357 of Cr.P.C. and he left it to the court to decide such an amount. He also emphasized that a bonafide compromise has been entered into between petitioner no.5 on the one hand and petitioner nos.1 to 4 - the accused on the other and that ought to be respected so as to do complete justice to both of them relying upon the third part of Section 482 of Cr.P.C. i.e. to secure the ends of justice. 7 Mr.Gadkari, the learned APP, on the other hand, urged that the Full Bench decision of this Court in the case of Honmane (supra) does not support the case of the petitioners and it has been well settled that the powers under Section 482 cannot be invoked/exercised to stifle a legimitate prosecution. He pointed out that the decisions relied upon by Mr.Warunjikar and rendered by the Apex Court are for the offences punishable under Sections 279, 304A, 498A, 406, 323, 325, 420, 467, 471 and 468 of IPC, and there is no case where the Court has allowed sat 9 wp 1299-2010 compounding of the offence punishable under Section 302 of IPC. He also submitted that by this petition, the petitioners are trying to get the pending appeals allowed which cannot be permitted and therefore, the inherent powers under Section 482 cannot be invoked in such a case. He reiterated that in the offences punishable under Sections 302, 307, 376 and 392 to 399 of IPC, the Court should not allow compounding or quashment of the proceedings even if the victim or the relations have compromised amongst themselves. 8 We have perused all the decisions relied upon by Mr.Warunjikar and we have given our anxious considerations to the arguments advanced by both the parties. In the instant case, petitioner nos.1 to 4 have been convicted and sentenced for an offence punishable under Section 302 read with 120B of IPC. It is not an offence of private nature or on the outlines of a civil dispute. Petitioner nos.1 to 4 have not been punished and convicted for any offence compoundable with the leave of the court. What the sat 10 wp 1299-2010 Apex Court can do by invoking the powers under Article 142 of the Constitution of India, cannot be done by this Court. In our considered view, inherent powers under Section 482 cannot be invoked to compound the offence punishable under Section 302 of IPC and at a stage when the competent court has passed the order of conviction and sentence and the appeals filed by the accused are pending for final hearing. The possibility of the appeals being allowed, cannot be ruled out. It is well settled that inherent powers under Section 482 of Cr.P.C. cannot be invoked for any relief which otherwise can be prayed for under the other provisions of Cr.P.C. A Three Judge Bench in the case of R.P. Kapur v/s. State of Pubjab (AIR 1960 SC 866) while dealing with the inherent powers under Section 561-A of the Code, (which is in para 3 of the Section 482 of the Code of 1973), stated in para 6 regarding the inherent powers under the said Section as under :- “6. It is well established that sat 11 wp 1299-2010 the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may sat 12 wp 1299-2010 also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused persons. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under S. 561-A the High Court would not embark upon an enquiry as to whether the evidence in sat 13 wp 1299-2010 question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction, and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under S. 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point (Vide: In Re: Shripad G. Chandavarkar, AIR 1928 Bom 184, Jagat Chandra Mozumdar v. Queen Empress, ILR 26 Cal 786, Dr.Shankar Singh v. State of Punjab, 56 Pun LR 54 : (AIR 1954 Punj 193), Nripendra Bhusan Roy v. Gobinda Bandhu Majumdar, AIR 1924 Cal 1018 and Ramanathan Chettiyar v. Sivarama Subramania, ILR 47 Mad 722 : (AIR 1925 Mad 39).” This locus classicus still governs the field on the grounds and the cases in which, the inherent powers under Section 482 of Cr.P.C. could be exercised by the High Court. 9 We are satisfied that in the instant case the inherent powers under Section 482 of Cr.P.C. cannot sat 14 wp 1299-2010 be invoked and therefore, this petition must fail at the threshold. 10 The petition is dismissed. (U.D. SALVI, J) (B.H. MARLAPALLE, J)