Powers of Section 482 CrPC should only be used in “Rarest of the rare” cases: Bombay High Court

 on 13 03 2018 on 22 03 (1) Cri. Appln. No. 03818 IN THE HIGH COURT OF JUDICATURE AT BOMBAY AURANGABAD BENCH AT AURANGABAD. Criminal Application No. 03818 District : Parbhani 1.Udhav s o. Kisanrao Ghodse Age : 54 years Occupation : Labourer.2.Kundlik s o. Sheshrao Kadam Age : 36 years Occupation : Agriculture. 3.Shantabai w o. Udhav Ghodse Age : 44 years Occupation : Household.All R o. Runj Taluka Purna .. ApplicantsDistrict Parbhani. versus1.The State of Maharashtra Through Police Station Purna Taluka Purna Dist. Parbhani.2.Meenabai Manikrao Kadam Age : 28 years Occupation : Household .. Non­applicantsR o. Runj Taluka Purna (2) Cri. Appln. No. 03818 CORAM : PRASANNA B. VARALE & SMT. VIBHA KANKANWADI JJ. DATE : 26TH FEBRUARY 2018 JUDGMENT:01.By this application the applicants have invoked the inherent powers of this Court under Section 482 of the Code of Criminal Procedure 1973 in order to allow the compromise that has been arrived at between them and the original informant. 02.Few relevant facts of the case are required to be considered. It was the prosecution story that the informant who was resident of Runj Taluka Purna District Parbhani gave first information report stating that she went to her agricultural land to collect Udid crop at about 11.00 a.m. on 03.09.2012. After one and half hours her husband joined her in the agricultural work. There was a heavy rainfall at about 02.30 p.m. and therefore she went into the hut. Original accused no.01 i.e. present applicant no.01 followed her in the hut and after he found that the informant was alone he caught hold of her hands and started to manhandle her. He gagged her mouth and asked him to sit since there is nobody else. He was trying to outrage her modesty. However somehow she rescued her mouth and alarmed her husband. Her husband came towards her. When accused saw him coming he ran away from the spot. After completing the work when she and her husband went towards house at about 07.00 a.m. she on 13 03 2018 on 22 03 (3) Cri. Appln. No. 03818 had narrated the incident to her mother­in­law and father­in­law. Her father­in­law and her husband went towards the house of the accused to make enquiry regarding the incident. At that time accused started abusing them. Other two accused persons i.e. applicant nos.02 and 03 had beaten the father­in­law of the informant by kicks and fist blows. Accused no.03 applicant no.03 had abused them. Accused no.01 had taken bite of the husband of the informant. The incident was intervened by the witnesses. 03.After registration of the crime the investigation was carried out. The charge­sheet was filed before Judicial MagistratePurna. After the charge was framed the trial was conducted. All the accused have been held guilty of committing offence punishable under Section 323 of the Indian Penal Code and have been sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs. 1 000 ­ each. In default of payment of fine they have been directed to suffer simple imprisonment for 02 months. Accused no.01 has been convicted for committing offence punishable under Section 447 of the IPC and has been directed to undergo rigorous imprisonment for 03 months and to pay fine of Rs. 1 000 ­. In default of payment of fine he has been directed to suffer simple imprisonment for 02 months. He has been further convicted for offence punishable under Section 354 of the IPC and has been sentenced to suffer rigorous imprisonment for 02 years and to pay fine of Rs. 2 000 ­. In default of payment of on 13 03 2018 on 22 03 (4) Cri. Appln. No. 03818 fine he has been directed to suffer simple imprisonment for 02 months. 04.Being aggrieved by the said judgment and order all the three accused have preferred appeal being Criminal Regular Appeal No. 1113 before Sessions Judge at Parbhani. 05.During pendency of the appeal compromise has arrived at between the informant and accused prsons appellants and a pursis to that effect was filed. 06.It has been contended that since Section 354 of the IPC has now been made non­compoundable the applicants are before this Court. 07.Heard both parties.08.The facts put before us disclose that the present applicants were tried for the offences. They were punished and they have preferred the appeal challenging their conviction. Now the parties have compromised the matter. The other sections under which conviction has been awarded i.e. Sections 323 and 447 of the IPC are compoundable under Section 320 of the Code of Criminal Procedure 1973. Only Section 354 of the IPC on the date of the offence has been made non­compoundable and therefore the applicants have come before this Court to quash the FIR. on 13 03 2018 on 22 03 (5) Cri. Appln. No. 03818 09.It is to be noted that a document called Tadjodpatra has been arrived at and by way of pursis it has been produced before the learned Sessions Judge on 09.11.2017. It has been contended in the said pursis that both the parties are resident of the same village and are of the opinion that they should have good and cordial relations in future also. Because of some misunderstanding the information was given. However now the dispute is resolved. The informant has no objection if the applicants i.e. accused persons are acquitted. 10.A three­Judge Bench of this Court in the matter of Abasaheb Yadav Honmane Vs. State of Maharashtra2 Mah.L.J.856] while dealing with inherent powers of this Court under Section 482 of the Code of Criminal Procedure 1973 vis­a­vis the express bar for compounding of the non­compoundable offences in Section 320(9) of the Code has observed thus :"14. The power of compounding on one hand and quashing of criminal proceedings in exercise of inherent powers on the other are incapable of being treated as synonymous or even interchangeable in law. The conditions precedent and satisfaction of criteria in each of these cases are distinct and different. May be the only aspect where they have any commonality is the result of exercise of such power in favour of the accused as acquittal is the end result in both these cases. Both these powers are to be exercised for valid grounds and with some element of objectivity. Particularly the power of quashing the FIR or criminal proceedings by the court by taking recourse to inherent powers is expected to be used sparingly and that too without losing sight of impact of such order on the criminal justice delivery system. It may be obligatory upon the court to on 13 03 2018 on 22 03 (6) Cri. Appln. No. 03818 strike a balance between the nature of the offence and the need to pass an order in exercise of inherent powers as the object of criminal law is protection of public by maintenance of law and order. "11.Note of the judgment of this Court in the matter of Abasaheb Yadav Honmanewas taken by the Hon ble Apex Court in the matter of Gian Singh Vs. State of Pubjab and another10 SCC 303] and it has been held by the Hon ble Apex Court thus :"51. Section 320 of the Code articulates public policy with regard to the compounding of offences. It catalogues the offences punishable under IPC 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 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 sectionof 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. 52.The question is with regard to the inherent power of the High Court in quashing the criminal proceedings against an offender who has settled his dispute with the victim of the crime but the crime in which he is allegedly involved is on 13 03 2018 on 22 03 (7) Cri. Appln. No. 03818 not compoundable under Section 320 of the Code. 53.Section 482 of the Code 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 beings 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 the High Court it merely safeguards existing inherent powers possessed by the 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.54.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 to prevent abuse of the process of any court orto secure the ends of justice is a sine qua non. 55.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. 56.It needs no emphasis that exercise of inherent power by the High Court would entirely depend on the facts and on 13 03 2018 on 22 03 (8) Cri. Appln. No. 03818 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. 57.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. 58.Where the High Court quashes a criminal proceeding having regard to the fact that the dispute between the offender and the victim has been settled although the 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 wrongdoing that seriously endangers and threatens the well being of the 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 comkpensation yet certain crimes have been made compoundable in law with or without the permission of the court. In respect of serious offences like murder rape dacoity l etc. or other offences of mental depravity under IPC or offences of moral turpitude under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity the settlement between the offender and the 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 the victim and the offender and the victim have on 13 03 2018 on 22 03 (9) Cri. Appln. No. 03818 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 FIR if it is satisfied that on the face of such settlement there is hardly any likelihood of the 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. "12.Therefore after applying the parameters it is to be noted that the parties in the present case have come with a case that they want to maintain good and cordial relations in future. Such thought is necessary for the society and therefore we find this to be a fit case where inherent powers of this Court under Section 482 of the Cr.P.C. are required to be invoked. This is a fit case where the present applicants need not be asked to prosecute their appeal against conviction. 13.Hence the following order :­(a)The application is hereby allowed.(b)Non­applicant no.02 informant is allowed to compound the offences punishable under Sections 354 447 and 323 of the Indian Penal Code against all the applicants. (Court No.2) Purna District Parbhani on 12.11.2013 on 13 03 2018 on 22 03 (10) Cri. Appln. No. 03818 against the applicants is hereby set aside. They stand acquitted of all the aforesaid offences. ( Prasanna B. Varale ) JUDGE JUDGE...........puranik CRIAPPLN382.18 

Summary: The judgment of conviction cannot be set aside in an appeal/revision only on the ground that the parties have entered into a compromise under Section 482 of the CrPC. The Bombay High Court (Nagpur branch) gave the judgment citing the above stated reasons in the case of Saumaya Sanjay Khandare &amp; Anr vs. State of Maharashtra [CR.A.No.709 of 2020] by the full bench comprising of Hon’ble Justice AS Chandurkar, Justice Vinay Joshi and Justice NB Suryawanshi. In the instant case, the accused was convicted under Sec. 354D and 506 of IPC along with Sec. 3(1)(xi) of SC ST Act, 1989.Applicants had argued that the HC in the exercise of powers under Sec. 482 CrPC, even after the conviction, can end the dispute if a settlement has been reached between the accused and the complainant. It was argued that once the requirements of Sec. 482 are met so as to prevent an abuse of power of the any Court or to secure the ends of justice, the proceedings can be quashed notwithstanding the fact that the conviction order was already passed against the accused. In this regard, the Bench was deciding the extent of powers exercisable under Section 482 in view of conflicting judgments. A Division Bench at Aurangabad had held in Udhav Kisanrao Ghodse vs. State of Maharashtra that since the parties had decided to maintain good and cordial relations in future and such an attitude was beneficial to the society, inherent powers under Section 482 were required to be invoked and this judgment was followed in Ajmat Khan &amp; Anr  vs. State of Maharashtra. In this judgment, it was observed that the power under Section 482 for quashing the proceedings could be exercised even after conviction of an accused. As a result, in the instant case, it was observed that exercise of power under Section 482 should be exercised rarely rather than being invoked frequently. The HC refused to agree with the proposition that in cases where a settlement has reached between convict and complainant, the conviction can be quashed by invoking inherent powers. It was stated that “the inherent power could not be invoked merely on the ground of settlement between the parties”. Although, the remedy of challenging the order of conviction is available to the accused by way of an appeal, any compromise entered into post-conviction for a non-compoundable offence cannot by itself result in acquittal of the accused.