FIR can be quashed
In a landmark judgement the SC bench J
Lodha The offence arising out of matrimony relating to dowry etc. where the
wrong is basically personal in nature and parties have resolved entire their
dispute are stand on different footing then Graft or Rape for the purpose of
quashing.
REPORTABLE
IN THE SUPREME COURT OFINDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRL.) NO. 8989 OF 2010
Gian Singh ...Petitioner
Versus
State ofPunjab
WITH
SPECIAL LEAVE PETITION (CRL.) NO. 6138 OF 2006
SPECIAL LEAVE PETITION (CRL.) NO. 5203 OF 2011
SPECIAL LEAVE PETITION (CRL.) NO. 259 OF 2011
SPECIAL LEAVE PETITION (CRL.) NO. 5921 OF 2009
SPECIAL LEAVE PETITION (CRL.) NO. 7148 OF 2009
SPECIAL LEAVE PETITION (CRL.) NO. 6324 OF 2009
CRIMINAL APPEAL NOS. 2107-2125 OF 2011
JUDGEMENT
R.M. LODHA, J.
When the special leave petition in Gian Singh v. State of
Punjab and another came up for hearing, a two-Judge Bench (Markandey Katju
and Gyan Sudha Misra, JJ.) doubted the correctness of the decisions of this
Court in B.S. Joshi and others v. State of Haryana and another[1], Nikhil
Merchant v. Central Bureau of Investigation and another[2] and Manoj Sharma
v. State and others[3] and referred the matter to a larger Bench. The
reference order reads as follows :
"Heard learned counsel for the petitioner.
The petitioner has been convicted under Section 420 and
Section 120B, IPC by the learned Magistrate. He filed an appeal
challenging his conviction before the learned Sessions Judge.
While his appeal was pending, he filed an application before the
learned Sessions Judge for compounding the offence, which,
according to the learned counsel, was directed to be taken up
along with the main appeal. Thereafter, the petitioner filed a
petition under Section 482, Cr.P.C. for quashing of the FIR on
the ground of compounding the offence. That petition under
Section 482 Cr.P.C. has been dismissed by the High Court by its
impugned order. Hence, this petition has been filed in this
Court.
Learned counsel for the petitioner has relied on three
decisions of this Court, all by two Judge Benches. They are B.S.
Joshi vs. State ofHaryana
Central Bureau of Investigation and Another (2008) 9 SCC 677;
and Manoj Sharma vs. State and Others (2008) 16 SCC 1. In these
decisions, this Court has indirectly permitted compounding of
non-compoundable offences. One of us, Hon'ble Mr. Justice
Markandey Katju, was a member to the last two decisions.
Section 320, Cr.P.C. mentions certain offences as
compoundable, certain other offences as compoundable with the
permission of the Court, and the other offences as non-
compoundable vide Section 320(7).
Section 420, IPC, one of the counts on which the
petitioner has been convicted, no doubt, is a compoundable
offence with permission of the Court in view of Section 320,
Cr.P.C. but Section 120B IPC, the other count on which the
petitioner has been convicted, is a non-compoundable offence.
Section 120B (Criminal conspiracy) is a separate offence and
since it is a non-compoundable offence, we cannot permit it to
be compounded.
The Court cannot amend the statute and must maintain
judicial restraint in this connection. The Courts should not try
to take over the function of the Parliament or executive. It is
the legislature alone which can amend Section 320 Cr.P.C.
We are of the opinion that the above three decisions
require to be re-considered as, in our opinion, something which
cannot be done directly cannot be done indirectly. In our, prima
facie, opinion, non-compoundable offences cannot be permitted to
be compounded by the Court, whether directly or indirectly.
Hence, the above three decisions do not appear to us to be
correctly decided.
It is true that in the last two decisions, one of us,
Hon'ble Mr. Justice Markandey Katju, was a member but a Judge
should always be open to correct his mistakes. We feel that
these decisions require re-consideration and hence we direct
that this matter be placed before a larger Bench to reconsider
the correctness of the aforesaid three decisions.
Let the papers of this case be placed before Hon'ble Chief
Justice of India for constituting a larger Bench."
2. This is how these matters have come up for consideration before
us.
3. Two provisions of the Code of Criminal Procedure, 1973 (for
short, 'Code') which are vital for consideration of the issue referred to
the larger Bench are Sections 320 and 482. Section 320 of the Code provides
for compounding of certain offences punishable under the Indian Penal Code,
1860 (for short, 'IPC'). It reads as follows :
"S. 320. Compounding of offences.-(1) The offences punishable
under the sections of the Indian Penal Code, (45 of 1860)
specified in the first two columns of the Table next following
may be compounded by the persons mentioned in the third column
of that Table :
TABLE
|Offenc|Section of |Person by whom offence |
|e |the Indian |may be compounded |
| |Penal Code | |
| |applicable | |
|1 |2 |3 |
(2) The offences punishable under the sections of the Indian
Penal Code (45 of 1860) specified in the first two columns of
the table next following may, with the permission of the Court
before which any prosecution for such offence is pending, be
compounded by the persons mentioned in the third column of that
Table:--
TABLE
|Offen|Section of |Person by whom |
|ce |the Indian |offence may be |
| |Penal Code |compounded |
| |applicable | |
|1 |2 |3 |
(3) When an offence is compoundable under this section, the
abatement of such offence or an attempt to commit such offence
(when such attempt is itself an offence) or where the accused is
liable under section 34 or 149 of the Indian Penal Code (45 of
1860) may be compounded in like manner.
(4) (a) When the person who would otherwise be
competent to compound an offence under this section
is under the age of eighteen years or is an idiot or
a lunatic, any person competent to contract on his
behalf, may, with the permission of the Court,
compound such offence.
(b) When the person who would otherwise be competent to
compound an offence under this section is dead, the
legal representative, as defined in the Code of Civil
Procedure, 1908 of such person may, with the consent
of the Court, compound such offence.
(5) When the accused has been committed for trial or when he
has been convicted and an appeal is pending, no composition for
the offence shall be allowed without the leave of the Court to
which he is committed, or, as the case may be, before which the
appeal is to be heard.
(6) A High Court or Court of Session acting in the exercise of
its powers of revision under section 401 may allow any person to
compound any offence which such person is competent to compound
under this section.
(7) No offence shall be compounded if the accused is, by
reason of a previous conviction, liable either to enhanced
punishment or to a punishment of a different kind for such
offence.
(8) The composition of an offence under this section shall
have the effect of an acquittal of the accused with whom the
offence has been compounded.
(9) No offence shall be compounded except as provided by this
section."
4. Section 482 saves the inherent power of the High Court and it
reads as follows :
"S. 482. Saving of inherent power of High Court.-Nothing in
this Code shall be deemed to limit or affect the inherent powers
of the High Court to make such orders as may be necessary to
give effect to any order under this Code, or to prevent abuse of
the process of any Court or otherwise to secure the ends of
justice."
5. In B.S. Joshi1 , the undisputed facts were these : the husband
was one of the appellants while the wife was respondent no. 2 in the appeal
before this Court. They were married on 21.7.1999 and were living
separately since 15.7.2000. An FIR was registered under Sections
498-A/323 and 406, IPC at the instance of the wife on 2.1.2002. When the
criminal case registered at the instance of the wife was pending, the
dispute between the husband and wife and their family members was settled.
It appears that the wife filed an affidavit that her disputes with the
husband and the other members of his family had been finally settled and
she and her husband had agreed for mutual divorce. Based on the said
affidavit, the matter was taken to the High Court by both the parties and
they jointly prayed for quashing the criminal proceedings launched against
the husband and his family members on the basis of the FIR registered at
the wife's instance under Sections 498-A and 406 IPC. The High Court
dismissed the petition for quashing the FIR as in its view the offences
under Sections 498-A and 406, IPC were non-compoundable and the inherent
powers under Section 482 of the Code could not be invoked to by-pass
Section 320 of the Code. It is from this order that the matter reached this
Court. This Court held that the High Court in exercise of its inherent
powers could quash criminal proceedings or FIR or complaint and Section 320
of the Code did not limit or affect the powers under Section 482 of the
Code. The Court in paragraphs 14 and 15 (Pg. 682) of the Report held as
under :
"14. There is no doubt that the object of introducing Chapter XX-
A containing Section 498-A in the Indian Penal Code was to
prevent torture to a woman by her husband or by relatives of her
husband. Section 498-A was added with a view to punishing a
husband and his relatives who harass or torture the wife to
coerce her or her relatives to satisfy unlawful demands of
dowry. The hypertechnical view would be counterproductive and
would act against interests of women and against the object for
which this provision was added. There is every likelihood that
non-exercise of inherent power to quash the proceedings to meet
the ends of justice would prevent women from settling earlier.
That is not the object of Chapter XX-A of the Indian Penal Code.
15. In view of the above discussion, we hold that the High Court
in exercise of its inherent powers can quash criminal
proceedings or FIR or complaint and Section 320 of the Code does
not limit or affect the powers under Section 482 of the Code."
6. In Nikhil Merchant2, a company, M/s. Neemuch Emballage Ltd.,
Mumbai was granted financial assistance by Andhra Bank under various
facilities. On account of default in repayment of loans, the bank filed a
suit for recovery of the amount payable by the borrower company. The bank
also filed a complaint 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 the IPC read with Sections 5(2) and
5(1)(d) of the Prevention of Corruption Act, 1947 and Section 13(2) read
with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The suit
for recovery filed by the bank against the company and the Managing
Director of the Company was compromised. The suit was compromised upon the
defendants agreeing to pay the amounts due as per the schedule mentioned in
the consent terms. Clause 11 of the consent terms read, "agreed that save
as aforesaid neither party has any claim against the other and parties do
hereby withdraw all the allegations and counter-allegations made against
each other". Based on clause 11 of the consent terms, the Managing Director
of the Company, the appellant who was accused no. 3 in charge sheet filed
by CBI, made application for discharge from the criminal complaint. The
said application was rejected by the Special Judge (CBI), Greater Bombay,
which came to be challenged before the Bombay High Court. The contention
before the High Court was that since the subject matter of the dispute had
been settled between the appellant and the bank, it would be unreasonable
to continue with the criminal proceedings. The High Court rejected the
application for discharge from the criminal cases. It is from this order
that the matter reached this Court by way of special leave. The Court
having regard to the facts of the case and the earlier decision of this
Court in B.S. Joshi1, set aside the order of the High Court and quashed the
criminal proceedings by consideration of the matter thus:
"28. The basic intention of the accused in this case appears to
have been to misrepresent the financial status of the Company,
M/s Neemuch Emballage Ltd., Mumbai, in order to avail of the
credit facilities to an extent to which the Company was not
entitled. In other words, the main intention of the Company and
its officers was to cheat the Bank and induce it to part with
additional amounts of credit to which the Company was not
otherwise entitled.
29. Despite the ingredients and the factual content of an
offence of cheating punishable under Section 420 IPC, the same
has been made compoundable under sub-section (2) of Section 320
CrPC with the leave of the court. Of course, forgery has not
been included as one of the compoundable offences, but it is in
such cases that the principle enunciated in B.S. Joshi case
becomes relevant.
30. In the instant case, the disputes between the Company and
the Bank have been set at rest on the basis of the compromise
arrived at by them whereunder the dues of the Bank have been
cleared and the Bank does not appear to have any further claim
against the Company. What, however, remains is the fact that
certain documents were alleged to have been created by the
appellant herein in order to avail of credit facilities beyond
the limit to which the Company was entitled. The dispute
involved herein has overtones of a civil dispute with certain
criminal facets. The question which is required to be answered
in this case is whether the power which independently lies with
this Court to quash the criminal proceedings pursuant to the
compromise arrived at, should at all be exercised?
31. On an overall view of the facts as indicated hereinabove and
keeping in mind the decision of this Court in B.S. Joshi case
and the compromise arrived at between the Company and the Bank
as also Clause 11 of the consent terms filed in the suit filed
by the Bank, we are satisfied that this is a fit case where
technicality should not be allowed to stand in the way in the
quashing of the criminal proceedings, since, in our view, the
continuance of the same after the compromise arrived at between
the parties would be a futile exercise."
7. In Manoj Sharma3, the Court was concerned with the question
whether an F.I.R. under Sections 420/468/471/34/120-B IPC can be quashed
either under Section 482 of the Code or under Article 226 of the
Constitution when the accused and the complainant have compromised and
settled the matter between themselves. Altamas Kabir, J., who delivered the
lead judgment referred to B.S. Joshi1 and the submission made on behalf of
the State that B.S. Joshi1 required a second look and held that the Court
was not inclined to accept the contention made on behalf of the State that
the decision in B.S. Joshi1 required reconsideration, at least not in the
facts of the case. It was held that what was decided in B.S. Joshi1 was
the power and authority of the High Court to exercise jurisdiction under
Section 482 of the Code or under Article 226 of the Constitution to quash
offences which were not compoundable. The law stated in B.S. Joshi1 simply
indicated the powers of the High Court to quash any criminal proceeding or
first information report or complaint whether the offences were
compoundable or not. Altamas Kabir, J. further observed, "The ultimate
exercise of discretion under Section 482 CrPC or under Article 226 of the
Constitution is with the court which has to exercise such jurisdiction in
the facts of each case. It has been explained that the said power is in no
way limited by the provisions of Section 320 CrPC. We are unable to
disagree with such statement of law. In any event, in this case, we are
only required to consider whether the High Court had exercised its
jurisdiction under Section 482 CrPC legally and correctly." Then in
paragraphs 8 and 9 (pg. 5) of the Report, Altamas Kabir, J., inter
alia, held as under :
"8. .....Once the complainant decided not to pursue the matter
further, the High Court could have taken a more pragmatic view
of the matter. We do not suggest that while exercising its
powers under Article 226 of the Constitution the High Court
could not have refused to quash the first information report,
but what we do say is that the matter could have been considered
by the High Court with greater pragmatism in the facts of the
case.
9. ......In the facts of this case we are of the view that
continuing with the criminal proceedings would be an exercise in
futility........."
8. Markandey Katju, J. although concurred with the view of Altamas
Kabir, J. that criminal proceedings in that 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 the Code or Article 226 of the
Constitution on the basis that the parties have entered into compromise. In
paragraphs 27 and 28 (pg. 10) of the report he held as under:
"27. There can be no doubt that a case under Section 302 IPC or
other serious offences like those under Sections 395, 307 or 304-
B cannot be compounded and hence proceedings in those provisions
cannot be quashed by the High Court in exercise of its power
under Section 482 CrPC or in writ jurisdiction on the basis of
compromise. However, in some other cases (like those akin to a
civil nature), the proceedings can be quashed by the High Court
if the parties have come to an amicable settlement even though
the provisions are not compoundable. Where a line is to be drawn
will have to be decided in some later decisions of this Court,
preferably by a larger Bench (so as to make it more
authoritative). Some guidelines will have to be evolved in this
connection and the matter cannot be left at the sole unguided
discretion of Judges, otherwise there may be conflicting
decisions and judicial anarchy. A judicial discretion has to be
exercised on some objective guiding principles and criteria, and
not on the whims and fancies of individual Judges. Discretion,
after all, cannot be the Chancellor's foot.
28. I am expressing this opinion because Shri B.B. Singh,
learned counsel for the respondent has rightly expressed his
concern that the decision in B.S. Joshi case should not be
understood to have meant that Judges can quash any kind of
criminal case merely because there has been a compromise between
the parties. After all, a crime is an offence against society,
and not merely against a private individual."
9. Dr. Abhishek Manu Singhvi, learned senior counsel for the
petitioner in SLP(Crl.) No. 6324 of 2009 submitted that the inherent power
of the High Court to quash a non-compoundable offence was not circumscribed
by any of the provisions of the Code, 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 Code. He, thus, submitted that in exercise of its inherent powers
under Section 482, 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 the Code 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 flavour; (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.
10. Shri P.P. Rao, learned senior counsel for the petitioner in
Special Leave Petition (Crl.) No. 5921 of 2009 submitted that Section 482
of the Code is complete answer to the reference made to the larger Bench.
He analysed Section 482 and Section 320 of the Code and submitted that
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.
11. Mr. P.P. Rao, learned senior counsel submitted that 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.
12. Mr. V. Giri, learned senior counsel for the respondent
(accused) in Special Leave Petition (Crl.) No. 6138 of 2006 submitted that
the real question that needs to be considered by this Court in the
reference is whether Section 320(9) of the Code creates a bar or limits or
affects the inherent powers of the High Court under Section 482 of the
Code. It was submitted that Section 320(9) does not create a bar or limit
or affect the inherent powers of the High Court in the matter of quashing
any criminal proceedings. Relying upon various decisions of this Court, it
was submitted that it has been consistently held that the High Court has
unfettered powers under Section 482 of the Code to secure the ends of
justice and prevent abuse of the process of the Court. He also submitted
that 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.
13. Learned counsel for the petitioner in Special Leave Petition
(Crl.) No. 8989 of 2010 submitted that the court should have positive view
to quash the proceedings once the aggrieved party has compromised the
matter with the wrong doer. It was submitted that 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. Learned counsel submitted that the 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 (S.326), attempt to murder (S.307),
rape (S.376), trespassing (S.452) and kidnapping (S.364, 365) etc.
14. Mr. P. P. Malhotra, learned Additional Solicitor General
referred to the scheme of the Code. He submitted that in any criminal case
investigated by police on filing the report under Section 173 of the Code,
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 the Code 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.
15. Learned Additional Solicitor General would submit that 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.
16. If power under Section 482 is exercised, in relation to non-
compoundable offences, it will amount to what is prohibited by law and such
cases cannot be brought within the parameters 'to secure ends of justice'.
Any order in violation and breach of statutory provisions, learned
Additional Solicitor General would submit, would be a case against the ends
of justice. He heavily relied upon a Constitution Bench decision of this
Court in Central Bureau of Investigation and others v. Keshub Mahindra and
others[4] wherein this Court held, 'no decision by any court, this Court
not excluded, can be read in a manner as to nullify the express provisions
of an Act or the Code.' With reference to B.S. Joshi1, learned Additional
Solicitor General submitted that that was a case where the dispute was
between the husband and wife and the court felt that if the proceedings
were not quashed, it would prevent the woman from settling in life and the
wife had already filed an affidavit that there were temperamental
differences and she was not supporting continuation of criminal
proceedings. As regards, Nikhil Merchant2, learned Additional Solicitor
General submitted that this Court in State ofMadhya Pradesh
and others[5] held that the said decision was a decision under Article 142
of the Constitution. With regard to Manoj Sharma3, learned Additional
Solicitor General referred to the observations made by Markandey Katju, J.
in paragraphs 24 and 28 of the Report.
17. Learned Additional Solicitor General submitted that 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.
18. More than 65 years back, in Emperor v. Khwaja Nazir Ahmed[6],
it was observed by the Privy Council that Section 561A (corresponding to
Section 482 of the Code) had not given increased powers to the Court which
it did not possess before that section was enacted. It was observed, `The
section gives no new powers, it only provides that those which the court
already inherently possess shall be preserved and is inserted lest, as
their Lordships think, it should be considered that the only powers
possessed by the court are those expressly conferred by the Criminal
Procedure Code and that no inherent power had survived the passing of the
Code'.
19. In Khushi Ram v. Hashim and others[7], this Court held as under
:
"It is unnecessary to emphasise that the inherent power of the
High Court under Section 561A cannot be invoked in regard to
matters which are directly covered by the specific provisions of
the Code..."
20. The above view of Privy Council in Khwaja Nazir Ahmed6 and
another decision in Lala Jairam Das & Ors. v. Emperor[8] was expressly
accepted by this Court in State ofUttar
Pradesh
The Court said :
"7. It is now well settled that the section confers no new
powers on the High Court. It merely safeguards all existing
inherent powers possessed by a High Court necessary (among other
purposes) to secure the ends of justice. The section provides
that those powers which the court inherently possesses shall be
preserved lest it be considered that the only powers possessed
by the court are those expressly conferred by the Code and that
no inherent powers had survived the passing of the
Code..........."
21. In Pampathy v. State of Mysore[10], a three-Judge Bench of this
Court stated as follows :
" The inherent power of the High Court mentioned in Section
561A, Criminal Procedure Code can be exercised only for either
of the three purposes specifically mentioned in the section. The
inherent power cannot be invoked in respect of any matter
covered by the specific provisions of the Code. It cannot also
be invoked if its exercise would be inconsistent with any of the
specific provisions of the Code. It is only if the matter in
question is not covered by any specific provisions of the Code
that s. 561A can come into operation......."
22. In State of Karnataka v. L. Muniswamy and others[11], a three-
Judge Bench of this Court referred to Section 482 of the Code and in
paragraph 7 (pg. 703) of the Report held as under :
"7. ........ In the exercise of this wholesome power, the High
Court is entitled to quash a proceeding if it comes to the
conclusion that allowing the proceeding to continue would be an
abuse of the process of the Court or that the ends of justice
require that the proceeding ought to be quashed. The saving of
the High Court's inherent powers, both in civil and criminal
matters, is designed to achieve a salutary public purpose which
is that a court proceeding ought not to be permitted to
degenerate into a weapon of harassment or persecution. In a
criminal case, the veiled object behind a lame prosecution, the
very nature of the material on which the structure of the
prosecution rests and the like would justify the High Court in
quashing the proceeding in the interest of justice. The ends of
justice are higher than the ends of mere law though justice has
got to be administered according to laws made by the
legislature. The compelling necessity for making these
observations is that without a proper realisation of the object
and purpose of the provision which seeks to save the inherent
powers of the High Court to do justice between the State and its
subjects, it would be impossible to appreciate the width and
contours of that salient jurisdiction."
23. The Court then observed that the considerations justifying the
exercise of inherent powers for securing the ends of justice naturally vary
from case to case and a jurisdiction as wholesome as the one conferred by
Section 482 ought not to be encased within the straitjacket of a rigid
formula.
24. A three-Judge Bench of this Court in Madhu Limaye v. The State
ofMaharashtra
Section 482 for quashing interlocutory order even though revision under
Section 397(2) of the Code was prohibited. The Court noticed the principles
in relation to the exercise of the inherent power of the High Court as
under :
"(1) That the power is not to be resorted to if there is a
specific provision in the Code for the redress of the grievance
of the aggrieved party;
(2) That it should be exercised very sparingly to prevent
abuse of process of any Court or otherwise to secure the ends of
justice;
(3) That it should not be exercised as against the express bar
of law engrafted in any other provision of the Code."
25. In Raj Kapoor and others v. State and others[13], the Court
explained the width and amplitude of the inherent power of the High Court
under Section 482 vis-à-vis revisional power under Section 397 as follows:
"10. .......The opening words of Section 482 contradict this
contention because nothing of the Code, not even Section 397,
can affect the amplitude of the inherent power preserved in so
many terms by the language of Section 482. Even so, a general
principle pervades this branch of law when a specific provision
is made: easy resort to inherent power is not right except under
compelling circumstances. Not that there is absence of
jurisdiction but that inherent power should not invade areas set
apart for specific power under the same Code. In Madhu Limaye's
case this Court has exhaustively and, if I may say so with great
respect, correctly discussed and delineated the law beyond
mistake. While it is true that Section 482 is pervasive it
should not subvert legal interdicts written into the same Code,
such, for instance, in Section 397(2). Apparent conflict may
arise in some situations between the two provisions and a happy
solution
"would be to say that the bar provided in sub-section (2) of
Section 397 operates only in exercise of the revisional power
of the High Court, meaning thereby that the High Court will
have no power of revision in relation to any interlocutory
order. Then in accordance with one or the other principles
enunciated above, the inherent power will come into play,
there being no other provision in the Code for the redress of
the grievance of the aggrieved party. But then, if the order
assailed is purely of an interlocutory character which could
be corrected in exercise of the revisional power of the High
Court under the 1898 Code, the High Court will refuse to
exercise its inherent power. But in case the impugned order
clearly brings about a situation which is an abuse of the
process of the Court or for the purpose of securing the ends
of justice interference by the High Court is absolutely
necessary, then nothing contained in Section 397(2) can limit
or affect the exercise of the inherent power by the High
Court. But such cases would be few and far between. The High
Court must exercise the inherent power very sparingly. One
such case would be the desirability of the quashing of a
criminal proceeding initiated illegally, vexatiously or as
being without jurisdiction".
In short, there is no total ban on the exercise of inherent
power where abuse of the process of the court or other
extraordinary situation excites the court's jurisdiction. The
limitation is self-restraint, nothing more. The policy of the
law is clear that interlocutory orders, pure and simple, should
not be taken up to the High Court resulting in unnecessary
litigation and delay. At the other extreme, final orders are
clearly capable of being considered in exercise of inherent
power, if glaring injustice stares the court in the face. In
between is a tertium quid, as Untwalia, J. has pointed out as
for example, where it is more than a purely interlocutory order
and less than a final disposal. The present case falls under
that category where the accused complain of harassment through
the court's process. Can we state that in this third category
the inherent power can be exercised? In the words of Untwalia,
J.: (SCC p. 556, para 10)
"The answer is obvious that the bar will not operate to
prevent the abuse of the process of the Court and/or to
secure the ends of justice. The label of the petition filed
by an aggrieved party is immaterial. The High Court can
examine the matter in an appropriate case under its inherent
powers. The present case undoubtedly falls for exercise of
the power of the High Court in accordance with Section 482 of
the 1973 Code, even assuming, although not accepting, that
invoking the revisional power of the High Court is
impermissible."
I am, therefore clear in my mind that the inherent power is not
rebuffed in the case situation before us. Counsel on both sides,
sensitively responding to our allergy for legalistics, rightly
agreed that the fanatical insistence on the formal filing of a
copy of the order under cessation need not take up this court's
time. Our conclusion concurs with the concession of counsel on
both sides that merely because a copy of the order has not been
produced, despite its presence in the records in the court, it
is not possible for me to hold that the entire revisory power
stands frustrated and the inherent power stultified."
26. In Simrikhia v. Dolley Mukherjee and Chhabi Mukherjee and
another[14], the Court considered the scope of Section 482 of the Code in a
case where on dismissal of petition under Section 482, a second petition
under Section 482 of the Code was made. The contention before this Court
was that the second petition under Section 482 of the Code was not
entertainable; the exercise of power under Section 482 on a second petition
by the same party on the same ground virtually amounts to review of the
earlier order and is contrary to the spirit of Section 362 of the Code and
the High Court was in error in having quashed the proceedings by adopting
that course. While accepting this argument, this Court held as follows :
"3. ......The inherent power under Section 482 is intended to
prevent the abuse of the process of the court and to secure ends
of justice. Such power cannot be exercised to do something which
is expressly barred under the Code. If any consideration of the
facts by way of review is not permissible under the Code and is
expressly barred, it is not for the court to exercise its
inherent power to reconsider the matter and record a conflicting
decision. If there had been change in the circumstances of the
case, it would be in order for the High Court to exercise its
inherent powers in the prevailing circumstances and pass
appropriate orders to secure the ends of justice or to prevent
the abuse of the process of the court. Where there is no such
changed circumstances and the decision has to be arrived at on
the facts that existed as on the date of the earlier order, the
exercise of the power to reconsider the same materials to arrive
at different conclusion is in effect a review, which is
expressly barred under Section 362.
5. Section 362 of the Code expressly provides that no court when
it has signed its judgment or final order disposing of a case,
shall alter or review the same except to correct a clerical or
arithmetical error save as otherwise provided by the Code.
Section 482 enables the High Court to make such order as may be
necessary to give effect to any order under the Code or to
prevent abuse of the process of any court or otherwise to secure
the ends of justice. The inherent powers, however, as much are
controlled by principle and precedent as are its express powers
by statute. If a matter is covered by an express letter of law,
the court cannot give a go-by to the statutory provisions and
instead evolve a new provision in the garb of inherent
jurisdiction.
7. The inherent jurisdiction of the High Court cannot be invoked
to override bar of review under Section 362. It is clearly
stated in Sooraj Devi v. Pyare Lal, that the inherent power of
the court cannot be exercised for doing that which is
specifically prohibited by the Code. The law is therefore clear
that the inherent power cannot be exercised for doing that which
cannot be done on account of the bar under other provisions of
the Code. The court is not empowered to review its own decision
under the purported exercise of inherent power. We find that the
impugned order in this case is in effect one reviewing the
earlier order on a reconsideration of the same materials. The
High Court has grievously erred in doing so. Even on merits, we
do not find any compelling reasons to quash the proceedings at
that stage."
27. In Dharampal & Ors. v. Ramshri (Smt.) and others[15], this
Court observed as follows :
"......It is now well settled that the inherent powers under
Section 482 of the Code cannot be utilized for exercising powers
which are expressly barred by the Code......."
28. In Arun Shankar Shukla v. State of Uttar Pradesh and ors.[16] ,
a two-Judge Bench of this Court held as under :
"....It is true that under Section 482 of the Code, the High
Court has inherent powers to make such orders as may be
necessary to give effect to any order under the Code or to
prevent the abuse of process of any court or otherwise to secure
the ends of justice. But the expressions "abuse of the process
of law" or "to secure the ends of justice" do not confer
unlimited jurisdiction on the High Court and the alleged abuse
of the process of law or the ends of justice could only be
secured in accordance with law including procedural law and not
otherwise. Further, inherent powers are in the nature of
extraordinary powers to be used sparingly for achieving the
object mentioned in Section 482 of the Code in cases where there
is no express provision empowering the High Court to achieve the
said object. It is well-neigh settled that inherent power is not
to be invoked in respect of any matter covered by specific
provisions of the Code or if its exercise would infringe any
specific provision of the Code. In the present case, the High
Court overlooked the procedural law which empowered the
convicted accused to prefer statutory appeal against conviction
of the offence. The High Court has intervened at an uncalled for
stage and soft-pedalled the course of justice at a very crucial
stage of the trial."
29. In G. Sagar Suri and another v. State of U.P. and others[17],
the Court was concerned with the order of the High Court whereby the
application under Section 482 of the Code for quashing the criminal
proceedings under Sections 406 and 420 of the IPC pending in the Court of
Chief Judicial Magistrate, Ghaziabad was dismissed. In paragraph 8 (pg.
643) of the Report, the Court held as under:
"8. Jurisdiction under Section 482 of the Code has to be
exercised with great care. In exercise of its jurisdiction the
High Court is not to examine the matter superficially. It is to
be seen if a matter, which is essentially of a civil nature, has
been given a cloak of criminal offence. Criminal proceedings are
not a short cut of other remedies available in law. Before
issuing process a criminal court has to exercise a great deal of
caution. For the accused it is a serious matter. This Court has
laid certain principles on the basis of which the High Court is
to exercise its jurisdiction under Section 482 of the Code.
Jurisdiction under this section has to be exercised to prevent
abuse of the process of any court or otherwise to secure the
ends of justice."
30. A three-Judge Bench of this Court in State of Karnataka v. M.
Devendrappa and another[18] restated what has been stated in earlier
decisions that Section 482 does not confer any new powers on the High
Court, it only saves the inherent power which the court possessed before
the commencement of the Code. The Court went on to explain the exercise of
inherent power by the High Court in paragraph 6 (Pg.94) of the Report as
under :
"6. .........It envisages three circumstances under which the
inherent jurisdiction may be exercised, namely, (i) to give
effect to an order under the Code, (ii) to prevent abuse of the
process of court, and (iii) to otherwise secure the ends of
justice. It is neither possible nor desirable to lay down any
inflexible rule which would govern the exercise of inherent
jurisdiction. No legislative enactment dealing with procedure
can provide for all cases that may possibly arise. Courts,
therefore, have inherent powers apart from express provisions of
law which are necessary for proper discharge of functions and
duties imposed upon them by law. That is the doctrine which
finds expression in the section which merely recognizes and
preserves inherent powers of the High Courts. All courts,
whether civil or criminal possess, in the absence of any express
provision, as inherent in their constitution, all such powers as
are necessary to do the right and to undo a wrong in course of
administration of justice on the principle quando lex aliquid
alicui concedit, concedere videtur et id sine quo res ipsae esse
non potest (when the law gives a person anything it gives him
that without which it cannot exist). While exercising powers
under the section, the court does not function as a court of
appeal or revision. Inherent jurisdiction under the section
though wide has to be exercised sparingly, carefully and with
caution and only when such exercise is justified by the tests
specifically laid down in the section itself. It is to be
exercised ex debito justitiae to do real and substantial justice
for the administration of which alone courts exist. Authority of
the court exists for advancement of justice and if any attempt
is made to abuse that authority so as to produce injustice, the
court has power to prevent abuse. It would be an abuse of
process of the court to allow any action which would result in
injustice and prevent promotion of justice. In exercise of the
powers court would be justified to quash any proceeding if it
finds that initiation/continuance of it amounts to abuse of the
process of court or quashing of these proceedings would
otherwise serve the ends of justice........"
The Court in paragraph 9 (Pg. 96) further stated :
"9. .........the powers possessed by the High Court under
Section 482 of the Code are very wide and the very plenitude of
the power requires great caution in its exercise. Court must be
careful to see that its decision in exercise of this power is
based on sound principles. The inherent power should not be
exercised to stifle a legitimate prosecution. The High Court
being the highest court of a State should normally refrain from
giving a prima facie decision in a case where the entire facts
are incomplete and hazy, more so when the evidence has not been
collected and produced before the Court and the issues involved,
whether factual or legal, are of magnitude and cannot be seen in
their true perspective without sufficient material. Of course,
no hard-and-fast rule can be laid down in regard to cases in
which the High Court will exercise its extraordinary
jurisdiction of quashing the proceeding at any stage......"
31. In Central Bureau of Investigation v. A. Ravishankar Prasad and
others[19], the Court observed in paragraphs 17,19,20 and 39 (Pgs. 356, 357
and 363) of the Report as follows :
"17. Undoubtedly, the High Court possesses inherent powers under
Section 482 of the Code of Criminal Procedure. These inherent
powers of the High Court are meant to act ex debito justitiae to
do real and substantial justice, for the administration of which
alone it exists, or to prevent abuse of the process of the
court.
19. This Court time and again has observed that the
extraordinary power under Section 482 CrPC should be exercised
sparingly and with great care and caution. The Court would be
justified in exercising the power when it is imperative to
exercise the power in order to prevent injustice. In order to
understand the nature and scope of power under Section 482 CrPC
it has become necessary to recapitulate the ratio of the decided
cases.
20. Reference to the following cases would reveal that the
Courts have consistently taken the view that they must use the
court's extraordinary power only to prevent injustice and secure
the ends of justice. We have largely inherited the provisions of
inherent powers from the English jurisprudence, therefore the
principles decided by the English courts would be of relevance
for us. It is generally agreed that the Crown Court has inherent
power to protect its process from abuse. The English courts have
also used inherent power to achieve the same objective.
39. Careful analysis of all these judgments clearly reveals that
the exercise of inherent powers would entirely depend on the
facts and circumstances of each case. The object of
incorporating inherent powers in the Code is to prevent abuse of
the process of the court or to secure ends of justice."
32 In Devendra and others v. State of Uttar Pradesh and
another[20], while dealing with the question whether a pure civil dispute
can be subject matter of a criminal proceeding under Sections 420, 467, 468
and 469 IPC, a two-Judge Bench of this Court observed that the High Court
ordinarily would exercise its jurisdiction under Section 482 of the Code if
the allegations made in the First Information Report, even if given face
value and taken to be correct in their entirety, do not make out any
offence.
33. In Sushil Suri v. Central Bureau of Investigation and
another[21], the Court considered the scope and ambit of the inherent
jurisdiction of the High Court and made the following observations in para
16 (pg. 715) of the Report:
"16. Section 482 CrPC itself envisages three circumstances under
which the inherent jurisdiction may be exercised by the High
Court, namely, (i) to give effect to an order under CrPC; (ii)
to prevent an abuse of the process of court; and (iii) to
otherwise secure the ends of justice. It is trite that although
the power possessed by the High Court under the said provision
is very wide but it is not unbridled. It has to be exercised
sparingly, carefully and cautiously, ex debito justitiae to do
real and substantial justice for which alone the Court exists.
Nevertheless, it is neither feasible nor desirable to lay down
any inflexible rule which would govern the exercise of inherent
jurisdiction of the Court. Yet, in numerous cases, this Court
has laid down certain broad principles which may be borne in
mind while exercising jurisdiction under Section 482 CrPC.
Though it is emphasised that exercise of inherent powers would
depend on the facts and circumstances of each case, but the
common thread which runs through all the decisions on the
subject is that the Court would be justified in invoking its
inherent jurisdiction where the allegations made in the
complaint or charge-sheet, as the case may be, taken at their
face value and accepted in their entirety do not constitute the
offence alleged."
34. Besides B.S. Joshi1, Nikhil Merchant2 and Manoj Sharma3, there
are other decisions of this Court where the scope of Section 320 vis-à-vis
the inherent power of the High Court under Section 482 of the Code has come
up for consideration.
35. In Madan Mohan Abbot v. State of Punjab[22], in the appeal
before this Court which arose from an order of the High Court refusing to
quash the FIR against the appellant lodged under Sections 379, 406, 409,
418, 506/34, IPC on account of compromise entered into between the
complainant and the accused, in paragraphs 5 and 6 (pg. 584) of the Report,
the Court held as under :
"5. It is on the basis of this compromise that the application
was filed in the High Court for quashing of proceedings which
has been dismissed by the impugned order. We notice from a
reading of the FIR and the other documents on record that the
dispute was purely a personal one between two contesting parties
and that it arose out of extensive business dealings between
them and that there was absolutely no public policy involved in
the nature of the allegations made against the accused. We are,
therefore, of the opinion that no useful purpose would be served
in continuing with the proceedings in the light of the
compromise and also in the light of the fact that the
complainant has on 11-1-2004 passed away and the possibility of
a conviction being recorded has thus to be ruled out.
6. We need to emphasise that it is perhaps advisable that in
disputes where the question involved is of a purely personal
nature, the court should ordinarily accept the terms of the
compromise even in criminal proceedings as keeping the matter
alive with no possibility of a result in favour of the
prosecution is a luxury which the courts, grossly overburdened
as they are, cannot afford and that the time so saved can be
utilised in deciding more effective and meaningful litigation.
This is a common sense approach to the matter based on ground of
realities and bereft of the technicalities of the law."
36. In Ishwar Singh v. State ofMadhya
Pradesh
concerned with a case where the accused - appellant was convicted and
sentenced by the Additional Sessions Judge for an offence punishable under
Section 307, IPC. The High Court dismissed the appeal from the judgment and
conviction. In the appeal, by special leave, the injured - complainant was
ordered to be joined as party as it was stated by the counsel for the
appellant that mutual compromise has been arrived at between the parties,
i.e. accused on the one hand and the complainant - victim on the other hand
during the pendency of the proceedings before this Court. It was prayed on
behalf of the appellant that the appeal be disposed of on the basis of
compromise between the parties. In para 12 (pg. 670) of the Report, the
Court observed as follows :
"12. Now, it cannot be gainsaid that an offence punishable under
Section 307 IPC is not a compoundable offence. Section 320 of
the Code of Criminal Procedure, 1973 expressly states that no
offence shall be compounded if it is not compoundable under the
Code. At the same time, however, while dealing with such
matters, this Court may take into account a relevant and
important consideration about compromise between the parties for
the purpose of reduction of sentence."
37. The Court also referred to the earlier decisions of this Court
in Jetha Ram v. State of Rajasthan[24], Murugesan v. Ganapathy Velar[25],
Ishwarlal v. State of M.P.[26] and Mahesh Chand & another v. State of
Rajasthan[27] and noted in paragraph 13 (pg. 670) of the Report as follows:
"13. In Jetha Ram v. State of Rajasthan, Murugesan v. Ganapathy
Velar and Ishwarlal v. State of M.P. this Court, while taking
into account the fact of compromise between the parties, reduced
sentence imposed on the appellant-accused to already undergone,
though the offences were not compoundable. But it was also
stated that in Mahesh Chand v. State ofRajasthan
was ordered to be compounded."
Then, in paragraphs 14 and 15 (pg. 670) the Court held as under :
"14. In our considered opinion, it would not be appropriate to
order compounding of an offence not compoundable under the Code
ignoring and keeping aside statutory provisions. In our
judgment, however, limited submission of the learned counsel for
the appellant deserves consideration that while imposing
substantive sentence, the factum of compromise between the
parties is indeed a relevant circumstance which the Court may
keep in mind.
15. In the instant case, the incident took place before more
than fifteen years; the parties are residing in one and the same
village and they are also relatives. The appellant was about 20
years of age at the time of commission of crime. It was his
first offence. After conviction, the petitioner was taken into
custody. During the pendency of appeal before the High Court, he
was enlarged on bail but, after the decision of the High Court,
he again surrendered and is in jail at present. Though he had
applied for bail, the prayer was not granted and he was not
released on bail. Considering the totality of facts and
circumstances, in our opinion, the ends of justice would be met
if the sentence of imprisonment awarded to the appellant
(Accused 1) is reduced to the period already undergone."
38. In Rumi Dhar (Smt.) v. State of West Bengal and another[28]
, the Court was concerned with applicability of Section 320 of the Code
where the accused was being prosecuted for commission of offences under
Sections 120-B/420/467/468/471 of the IPC along with the bank officers
who were being prosecuted under Section 13(2) read with Section 13(1)(d)
of Prevention of Corruption Act, 1988. The accused had paid the entire
due amount as per the settlement with the bank in the matter of recovery
before the Debts Recovery Tribunal. The accused prayed for her discharge
on the grounds (i) having regard to the settlement arrived at between her
and the bank, no case for proceeding against her has been made out; (ii)
the amount having already been paid and the title deeds having been
returned, the criminal proceedings should be dropped on the basis of the
settlement and (iii) the dispute between the parties were purely civil in
nature and that she had not fabricated any document or cheated the bank
in any way whatsoever and charges could not have been framed against her.
The CBI contested the application for discharge on the ground that mere
repayment to the bank could not exonerate the accused from the criminal
proceeding. The two-Judge Bench of this Court referred to Section 320 of
the Code and the earlier decisions of this Court in CBI v. Duncans Agro
Industries Limited[29], State of Haryana v. Bhajan Lal[30], State of
Bihar v. P.P. Sharma[31], Janata Dal v. H.S. Chowdhary[32] and Nikhil
Merchant2 which followed the decision in B.S. Joshi1 and then with
reference to Article 142 of the Constitution and Section 482 of the Code
refused to quash the charge against the accused by holding as under:
"24. The jurisdiction of the Court under Article 142 of the
Constitution of India is not in dispute. Exercise of such power
would, however, depend on the facts and circumstances of each
case. The High Court, in exercise of its jurisdiction under
Section 482 of the Code of Criminal Procedure, and this Court,
in terms of Article 142 of the Constitution of India, would not
direct quashing of a case involving crime against the society
particularly when both the learned Special Judge as also the
High Court have found that a prima facie case has been made out
against the appellant herein for framing the charge."
39. In Shiji alias Pappu and others vs. Radhika and another[33]
this Court considered the exercise of inherent power by the High Court
under Section 482 in a matter where the offence was not compoundable as the
accused was already involved in commission of the offences punishable under
Sections 354 and 394 IPC. The High Court rejected the prayer by holding
that the offences with which appellants were charged are not 'personal
in nature' to justify quashing the criminal proceedings on the basis of a
compromise arrived at between the complainant and the appellants. This
Court considered earlier decisions of this Court, the provisions contained
in Sections 320 and 394 of the Code and in paragraphs 17, 18 and 19 (pgs.
712 and 713) of the Report held as under:
"17. It is manifest that simply because an offence is not
compoundable under Section 320 CrPC is by itself no reason for
the High Court to refuse exercise of its power under Section 482
CrPC. That power can in our opinion be exercised in cases where
there is no chance of recording a conviction against the accused
and the entire exercise of a trial is destined to be an exercise
in futility. There is a subtle distinction between compounding
of offences by the parties before the trial court or in appeal
on the one hand and the exercise of power by the High Court to
quash the prosecution under Section 482 CrPC on the other. While
a court trying an accused or hearing an appeal against
conviction, may not be competent to permit compounding of an
offence based on a settlement arrived at between the parties in
cases where the offences are not compoundable under Section 320,
the High Court may quash the prosecution even in cases where the
offences with which the accused stand charged are non-
compoundable. The inherent powers of the High Court under
Section 482 CrPC are not for that purpose controlled by Section
320 CrPC.
18. Having said so, we must hasten to add that the plenitude of
the power under Section 482 CrPC by itself, makes it obligatory
for the High Court to exercise the same with utmost care and
caution. The width and the nature of the power itself demands
that its exercise is sparing and only in cases where the High
Court is, for reasons to be recorded, of the clear view that
continuance of the prosecution would be nothing but an abuse of
the process of law. It is neither necessary nor proper for us to
enumerate the situations in which the exercise of power under
Section 482 may be justified. All that we need to say is that
the exercise of power must be for securing the ends of justice
and only in cases where refusal to exercise that power may
result in the abuse of the process of law. The High Court may be
justified in declining interference if it is called upon to
appreciate evidence for it cannot assume the role of an
appellate court while dealing with a petition under Section 482
of the Criminal Procedure Code. Subject to the above, the High
Court will have to consider the facts and circumstances of each
case to determine whether it is a fit case in which the inherent
powers may be invoked.
19. Coming to the case at hand, we are of the view that the
incident in question had its genesis in a dispute relating to
the access to the two plots which are adjacent to each other. It
was not a case of broad daylight robbery for gain. It was a case
which has its origin in the civil dispute between the parties,
which dispute has, it appears, been resolved by them. That being
so, continuance of the prosecution where the complainant is not
ready to support the allegations which are now described by her
as arising out of some "misunderstanding and misconception" will
be a futile exercise that will serve no purpose. It is
noteworthy that the two alleged eyewitnesses, who are closely
related to the complainant, are also no longer supportive of the
prosecution version. The continuance of the proceedings is thus
nothing but an empty formality. Section 482 CrPC could, in such
circumstances, be justifiably invoked by the High Court to
prevent abuse of the process of law and thereby preventing a
wasteful exercise by the courts below".
40. In Ashok Sadarangani and Anr. vs. Union of India and
others[34], the issue under consideration was whether an offence which was
not compoundable under the provisions of the Code could be quashed. That
was a case where a criminal case was registered against the accused
persons under Sections 120-B, 465, 467, 468 and 471 of IPC. The allegation
was that accused secured the credit facilities by submitting forged
property documents as collaterals and utilized such facilities in a
dishonest and fraudulent manner by opening Letters of Credit in respect of
foreign supplies of goods, without actually bringing any goods but inducing
the Bank to negotiate the Letters of Credit in favour of foreign suppliers
and also by misusing the cash credit facility. The Court considered the
earlier decisions of this Court including B.S. Joshi1, Nikhil Merchant2,
Manoj Sharma3, Shiji alias Pappu33, Duncans Agro Industries Limited29, Rumi
Dhar (Smt.)28 and Sushil Suri21 and also referred to the order of
reference in one of the cases before us. In paragraphs 17, 18, 19 and 20
of the Report it was held as under:-
"17. Having carefully considered the facts and circumstances of
the case, as also the law relating to the continuance of
criminal cases where the complainant and the accused had settled
their differences and had arrived at an amicable arrangement, we
see no reason to differ with the views that had been taken in
Nikhil Merchant's case or Manoj Sharma's case (supra) or the
several decisions that have come thereafter. It is, however, no
coincidence that the golden thread which runs through all the
decisions cited, indicates that continuance of a criminal
proceeding after a compromise has been arrived at between the
complainant and the accused, would amount to abuse of the
process of court and an exercise in futility, since the trial
could be prolonged and ultimately, may conclude in a decision
which may be of any consequence to any of the other parties.
Even in Sushil Suri's case on which the learned Additional
Solicitor General had relied, the learned Judges who decided the
said case, took note of the decisions in various other cases,
where it had been reiterated that the exercise of inherent
powers would depend entirely on the facts and circumstances of
each case. In other words, not that there is any restriction on
the power or authority vested in the Supreme Court in exercising
powers under Article 142 of the Constitution, but that in
exercising such powers the Court has to be circumspect, and has
to exercise such power sparingly in the facts of each case.
Furthermore, the issue, which has been referred to a larger
Bench in Gian Singh's case (supra) in relation to the decisions
of this Court in B.S. Joshi's case, Nikhil Merchant's case, as
also Manoj Sharma's case, deal with a situation which is
different from that of the present case. While in the cases
referred to hereinabove, the main question was whether offences
which were not compoundable, under Section 320 Cr.P.C. could be
quashed under Section 482 Cr.P.C., in Gian Singh's case the
Court was of the view that a non-compoundable offence could not
be compounded and that the Courts should not try to take over
the function of the Parliament or executive. In fact, in none of
the cases referred to in Gian Singh's case, did this Court
permit compounding of non-compoundable offences. On the other
hand, upon taking various factors into consideration, including
the futility of continuing with the criminal proceedings, this
Court ultimately quashed the same.
18. In addition to the above, even with regard to the decision
of this Court in Central Bureau of Investigation v. Ravi Shankar
Prasad and Ors. : [(2009) 6 SCC 351], this Court observed that
the High Court can exercise power under Section 482 Cr.P.C. to
do real and substantial justice and to prevent abuse of the
process of Court when exceptional circumstances warranted the
exercise of such power. Once the circumstances in a given case
were held to be such as to attract the provisions of Article 142
or Articles 32 and 226 of the Constitution, it would be open to
the Supreme Court to exercise its extraordinary powers under
Article 142 of the Constitution to quash the proceedings, the
continuance whereof would only amount to abuse of the process of
Court. In the instant case the dispute between the petitioners
and the Banks having been compromised, we have to examine
whether the continuance of the criminal proceeding could turn
out to be an exercise in futility without anything positive
being ultimately achieved.
19. As was indicated in Harbhajan Singh's case (supra), the
pendency of a reference to a larger Bench, does not mean that
all other proceedings involving the same issue would remain
stayed till a decision was rendered in the reference. The
reference made in Gian Singh's case (supra) need not, therefore,
detain us. Till such time as the decisions cited at the Bar are
not modified or altered in any way, they continue to hold the
field.
20. In the present case, the fact situation is different from
that in Nikhil Merchant's case (supra). While in Nikhil
Merchant's case the accused had misrepresented the financial
status of the company in question in order to avail of credit
facilities to an extent to which the company was not entitled,
in the instant case, the allegation is that as part of a larger
conspiracy, property acquired on lease from a person who had no
title to the leased properties, was offered as collateral
security for loans obtained. Apart from the above, the actual
owner of the property has filed a criminal complaint against
Shri Kersi V. Mehta who had held himself out as the Attorney of
the owner and his family members. The ratio of the decisions in
B.S. Joshi's case and in Nikhil Merchant's case or for that
matter, even in Manoj Sharma's case, does not help the case of
the writ petitioners. In Nikhil Merchant's case, this Court had
in the facts of the case observed that the dispute involved had
overtures of a civil dispute with criminal facets. This is not
so in the instant case, where the emphasis is more on the
criminal intent of the Petitioners than on the civil aspect
involving the dues of the Bank in respect of which a compromise
was worked out."
The Court distinguished B.S. Joshi1 and Nikhil Merchant2 by observing
that those cases dealt with different fact situation.
41. In Rajiv Saxena and others v. State (NCT of Delhi) and
another[35], this Court allowed the quashment of criminal case under
Sections 498-A and 496 read with Section 34 IPC by a brief order. It was
observed that since the parties had settled their disputes and the
complainant agreed that the criminal proceedings need not be continued,
the criminal proceedings could be quashed.
42. In a very recent judgment decided by this Court in the month of
July, 2012 in Jayrajsinh Digvijaysinh Rana v. State of Gujarat and
another[36], this Court was again concerned with the question of quashment
of an FIR alleging offences punishable under Sections 467, 468, 471, 420
and 120-B IPC. The High Court refused to quash the criminal case under
Section 482 of the Code. The question for consideration was that inasmuch
as all those offences, except Section 420 IPC, were non-compoundable
offences under Section 320 of the Code, whether it would be possible to
quash the FIR by the High Court under Section 482 of the Code or by this
Court under Article 136 of the Constitution of India. The Bench
elaborately considered the decision of this Court in Shiji alias Pappu33
and by invoking Article 142 of the Constitution quashed the criminal
proceedings. It was held as under:-
"10. In the light of the principles mentioned above, inasmuch as
Respondent No. 2 - the Complainant has filed an affidavit
highlighting the stand taken by the Appellant (Accused No. 3)
during the pendency of the appeal before this Court and the
terms of settlement as stated in the said affidavit, by applying
the same analogy and in order to do complete justice under
Article 142 of the Constitution, we accept the terms of
settlement insofar as the Appellant herein (Accused No. 3) is
concerned.
11. In view of the same, we quash and set aside the impugned
FIR No. 45/2011 registered with Sanand Police Station, Ahmedabad
for offences punishable Under Sections 467, 468, 471, 420 and
120-B of IPC insofar as the Appellant (Accused No. 3) is
concerned. The appeal is allowed to the extent mentioned
above".
43. In Y. Suresh Babu v. State ofA.
P.
1987, this Court allowed the compounding of an offence under Section 326
IPC even though such compounding was not permitted by Section 320 of the
Code. However, in Ram Lal and Anr. v. State of J & K[38] , this Court
observed that Y. Suresh Babu37 was per incuriam. It was held that an
offence which law declares to be non-compoundable cannot be compounded at
all even with the permission of the Court.
44. Having surveyed the decisions of this Court which throw light
on the question raised before us, two decisions, one given by thePunjab
and Haryana High Court and the other by Bombay High Court deserve to be
noticed.
45. A five-Judge Bench of the Punjab and Haryana High Court in
Kulwinder Singh and others v. State of Punjab and another[39] was called
upon to determine, inter alia, the question 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. The five-Judge Bench referred to quite a few decisions of
this Court including the decisions in Madhu Limaye12 , Bhajan Lal30 , L.
Muniswamy11 , Simrikhia14, B.S. Joshi1 and Ram Lal38 and framed the
following guidelines:
"a. Cases arising from matrimonial discord, even if other
offences are introduced for aggravation of the case.
b. Cases pertaining to property disputes between close
relations, which are predominantly civil in nature and they have
a genuine or belaboured dimension of criminal liability.
Notwithstanding a touch of criminal liability, the settlement
would bring lasting peace and harmony to larger number of
people.
c. Cases of dispute between old partners or business concerns
with dealings over a long period which are predominantly civil
and are given or acquire a criminal dimension but the parties
are essentially seeking a redressal of their financial or
commercial claim.
d. Minor offences as under Section 279, IPC may be permitted to
be compounded on the basis of legitimate settlement between the
parties. Yet another offence which remains non- compoundable is
Section 506 (II), IPC, which is punishable with 7 years
imprisonment. It is the judicial experience that an offence
under Section 506 IPC in most cases is based on the oral
declaration with different shades of intention. Another set of
offences, which ought to be liberally compounded, are Sections
147 and 148, IPC, more particularly where other offences are
compoundable. It may be added here that the State ofMadhya
Pradesh
Sections 506(II) IPC, 147 IPC and 148, IPC compoundable
offences by amending the schedule under Section 320, Cr.P.C.
e. The offences against human body other than murder and
culpable homicide where the victim dies in the course of
transaction would fall in the category where compounding may not
be permitted. Heinous offences like highway robbery, dacoity or
a case involving clear-cut allegations of rape should also fall
in the prohibited category. Offences committed by Public
Servants purporting to act in that capacity as also offences
against public servant while the victims are acting in the
discharge of their duty must remain non-compoundable. Offences
against the State enshrined in Chapter-VII (relating to army,
navy and air force) must remain non-compoundable.
f. That as a broad guideline the offences against human body
other than murder and culpable homicide may be permitted to be
compounded when the court is in the position to record a finding
that the settlement between the parties is voluntary and fair.
While parting with this part, it appears necessary to add that
the settlement or compromise must satisfy the conscience of the
court. The settlement must be just and fair besides being free
from the undue pressure, the court must examine the cases of
weaker and vulnerable victims with necessary caution."
To conclude, it can safely be said that there can never be any
hard and fast category which can be prescribed to enable the
Court to exercise its power under Section 482 of the Cr.P.C. The
only principle that can be laid down is the one which has been
incorporated in the Section itself, i.e., "to prevent abuse of
the process of any Court" or "to secure the ends of justice".
It was further held as under :
"23. No embargo, be in the shape of Section 320(9) of the
Cr.P.C., or any other such curtailment, can whittle down the
power under Section 482 of the Cr.P.C.
25. The only inevitable conclusion from the above discussion is
that there is no statutory bar under the Cr.P.C. which can
affect the inherent power of this Court under Section 482.
Further, the same cannot be limited to matrimonial cases alone
and the Court has the wide power to quash the proceedings even
in non-compoundable offences notwithstanding the bar under
Section 320 of the Cr.P.C., in order to prevent the abuse of law
and to secure the ends of justice. The power under Section 482
of the Cr.P.C. is to be exercised ex-debito Justitiae to prevent
an abuse of process of Court. There can neither be an exhaustive
list nor the defined para-meters to enable a High Court to
invoke or exercise its inherent powers. It will always depend
upon the facts and circumstances of each case. The power under
Section 482 of the Cr.P.C. has no limits. However, the High
Court will exercise it sparingly and with utmost care and
caution. The exercise of power has to be with circumspection and
restraint. The Court is a vital and an extra-ordinary effective
instrument to maintain and control social order. The Courts play
role of paramount importance in achieving peace, harmony and
ever-lasting congeniality in society. Resolution of a dispute by
way of a compromise between two warring groups, therefore,
should attract the immediate and prompt attention of a Court
which should endeavour to give full effect to the same unless
such compromise is abhorrent to lawful composition of the
society or would promote savagery."
46. A three-Judge Bench of the Bombay High Court in Abasaheb Yadav
Honmane v. State of Maharashtra[40] dealt with the inherent power of the
High Court under Section 482 of the Code vis-à-vis the express bar for
compounding of the non-compoundable offences in Section 320(9) of the Code.
The High Court referred to various decisions of this Court and also the
decisions of the various High Courts and then stated as follows :
"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 inter-
changeable 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
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."
47. 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 of the 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.
48. 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 not compoundable under Section 320 of the Code.
49. 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 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.
50. 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.
51. 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.
52. 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.
53. 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.
54. 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 IPC 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.
55. B.S. Joshi1, Nikhil Merchant2, Manoj Sharma3 and Shiji alias
Pappu33 do illustrate the principle that High Court may quash criminal
proceedings or FIR or complaint in exercise of its inherent power under
Section 482 of the Code and Section 320 does not limit or affect the powers
of the High Court under Section 482. Can it be said that by quashing
criminal proceedings in B.S. Joshi1, Nikhil Merchant2, Manoj Sharma3 and
Shiji alias Pappu33, this Court has compounded the non-compoundable
offences indirectly? We do not think so. There does exist the distinction
between compounding of an offence under Section 320 and quashing of a
criminal case by the High Court in exercise of inherent power under Section
482. The two powers are distinct and different although ultimate
consequence may be same viz., acquittal of the accused or dismissal of
indictment.
56. We find no incongruity in the above principle of law and the
decisions of this Court in Simrikhia14, Dharampal15, Arun Shankar
Shukla16, Ishwar Singh23, Rumi Dhar (Smt.).28 and Ashok Sadarangani34. The
principle propounded in Simrikhia14 that the inherent jurisdiction of the
High Court cannot be invoked to override express bar provided in law is by
now well settled. In Dharampal15, the Court observed the same thing that
the inherent powers under Section 482 of the Code cannot be utilized for
exercising powers which are expressly barred by the Code. Similar
statement of law is made in Arun Shankar Shukla16. In Ishwar Singh23, the
accused was alleged to have committed an offence punishable under Section
307, IPC and with reference to Section 320 of the Code, it was held that
the offence punishable under Section 307 IPC was not compoundable offence
and there was express bar in Section 320 that no offence shall be
compounded if it is not compoundable under the Code. In Rumi Dhar (Smt.)28
although the accused had paid the entire due amount as per the settlement
with the bank in the matter of recovery before the Debts Recovery Tribunal,
the accused was being proceeded with for commission of offences under
Section 120-B/420/467/468/471 of the IPC along with the bank officers who
were being prosecuted under Section 13(2) read with 13(1)(d) of Prevention
of Corruption Act. The Court refused to quash the charge against the
accused by holding that the Court would not quash a case involving a crime
against the society when a prima facie case has been made out against the
accused for framing the charge. Ashok Sadarangani34 was again a case where
the accused persons were charged of having committed offences under
Sections 120-B, 465, 467, 468 and 471, IPC and the allegations were that
the accused secured the credit facilities by submitting forged property
documents as collaterals and utilized such facilities in a dishonest and
fraudulent manner by opening letters of credit in respect of foreign
supplies of goods, without actually bringing any goods but inducing the
bank to negotiate the letters of credit in favour of foreign suppliers and
also by misusing the cash-credit facility. The Court was alive to the
reference made in one of the present matters and also the decisions in B.S.
Joshi1, Nikhil Merchant2 and Manoj Sharma3 and it was held that B.S.
Joshi1, and Nikhil Merchant2 dealt with different factual situation as the
dispute involved had overtures of a civil dispute but the case under
consideration in Ashok Sadarangani34 was more on the criminal intent than
on a civil aspect. The decision in Ashok Sadarangani34 supports the view
that the criminal matters involving overtures of a civil dispute stand on a
different footing.
57. The position that emerges from the above discussion can be
summarised thus: 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 the Code. 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. 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 flavour
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.
58. In view of the above, it cannot be said that B.S. Joshi1,
Nikhil Merchant2 and Manoj Sharma3 were not correctly decided. We answer
the reference accordingly. Let these matters be now listed before the
concerned Bench(es).
.........................J.
(R.M. Lodha)
.........................J.
(Anil R. Dave)
...........................................
.J. (Sudhansu Jyoti Mukhopadhaya)
NEW DELHI
SEPTEMBER 24, 2012.
ITEM NO.1A COURT NO.7 SECTION IIB
FOR JUDGMENT
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl) No(s).8989/2010
(From the judgement and order dated 17/09/2010 in CRM No.27367/2010 of The
HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH)
GIAN SINGH Petitioner(s)
VERSUS
STATE OF PUNJAB & ANR. Respondent(s)
WITH
SLP(Crl) No.6138/2006
SLP(Crl) No.5203/2011
SLP(Crl) No.259/2011
SLP(Crl) No.5921/2009
SLP(Crl) No.7148/2009
SLP(Crl) No.6324/2009
CRIMINAL APPEAL NOS. 2107-2125/2011
Date: 24/09/2012 These Petitions and Criminal Appeal were
called on for Judgment today.
For Petitioner(s) Mr. P.P. Malhotra, A.S.G.
Mr. Arvind Kumar Sharma, Adv.
M/S.Delhi
Mr. Bijoy Kumar Jain, Adv.
Mr. P. Parmeswaran, Adv.
Mr. B.K.Satija, Adv.
Ms. Pragati Neekhra, Adv.
For Respondent(s) Mr. P.P. Malhotra, A.S.G.
Mr. Arvind Kumar Sharma, Adv.
Mr. A.V. Rangam, Adv.
Mr. Buddy A. Ranganadhan, Adv.
Ms. Richa Bhardwaj, Adv.
Mr. K.N. Rai, Adv.
Mr. B.K.Satija, Adv.
Ms. Pragati Neekhra, Adv.
Mr. R.Chandrachud, Adv.
Mr. Nikhil Jain, Adv.
Mr. Sunil Kumar Verma, Adv.
Mr. Pawan Kumar, Adv.
Dr. Kailash Chand, Adv.
Mr. Arvind Kumar Sharma, Adv.
Mr. Bijoy Kumar Jain, Adv.
Ms. Asha Gopalan Nair, Adv.
Mr. Atishi Dipankar, Adv.
Mr. Yash Pal Dhingra, Adv.
Mr. Partha Sil, Adv.
Mr. Praveen Swarup, Adv.
Mr. Anil Kumar Bakshi, Adv.
Mr. Sheel Kumar, Adv.
Mr. Ravi Bassi, Adv.
Hon'ble Mr. Justice R.M. Lodha pronounced the Judgment for the Bench
comprising His Lordship, Hon'ble Mr. Justice Anil R. Dave and
Hon'ble Mr. Justice Sudhansu Jyoti Mukhopadhaya.
The reference is answered in terms of the reportable Judgment.
Let these matters be now listed before the concerned Bench(es).
(Rajesh Dham) (Renu Diwan)
Court Master Court Master
(signed reportable Judgment is placed on the file)
-----------------------
[1] (2003) 4 SCC 675
[2] (2008) 9 SCC 677
[3] (2008) 16 SCC 1
[4] (2011) 6 SCC 216
[5] (2009) 11 SCC 424
[6] (1945) 47 Bom. L.R. 245
[7] AIR 1959 SC 542
[8] AIR 1945 PC 94
[9] AIR 1964 SC 703
[10] 1966 (Suppl) SCR 477
[11] (1977) 2 SCC 699
[12] (1977) 4 SCC 551
[13] (1980) 1 SCC 43
[14] (1990) 2 SCC 437
[15] 1993 Crl. L.J. 1049
[16] AIR 1999 SC 2554
[17] (2000) 2 SCC 636
[18] (2002) 3 SCC 89
[19] (2009) 6 SCC 351
[20] (2009) 7 SCC 495
[21] (2011) 5 SCC 708
[22] (2008) 4 SCC 582
[23] (2008) 15 SCC 667
[24] (2006) 9 SCC 255
[25] (2001) 10 SCC 504
[26] (2008) 15 SCC 671
[27] 1990 (supp) SCC 681
[28] (2009) 6 SCC 364
[29] (1996) 5 SCC 591
[30] 1992 Supp (1) SCC 335
[31] 1992 Supp (1) SCC 222
[32] (1992) 4 SCC 305
[33] (2011) 10 SCC 705
[34] JT 2012 (3) SC 469
[35] (2012) 5 SCC 627
[36] JT 2012 (6) SC 504
[37] (2005) 1 SCC 347
[38] (1999 2 SCC 213
[39] (2007) 4 CTC 769
[40] 2008 (2) Mh.L.J.856
-----------------------
56
REPORTABLE
IN THE SUPREME COURT OF
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRL.) NO. 8989 OF 2010
Gian Singh ...Petitioner
Versus
State of
WITH
SPECIAL LEAVE PETITION (CRL.) NO. 6138 OF 2006
SPECIAL LEAVE PETITION (CRL.) NO. 5203 OF 2011
SPECIAL LEAVE PETITION (CRL.) NO. 259 OF 2011
SPECIAL LEAVE PETITION (CRL.) NO. 5921 OF 2009
SPECIAL LEAVE PETITION (CRL.) NO. 7148 OF 2009
SPECIAL LEAVE PETITION (CRL.) NO. 6324 OF 2009
CRIMINAL APPEAL NOS. 2107-2125 OF 2011
JUDGEMENT
R.M. LODHA, J.
When the special leave petition in Gian Singh v. State of
Punjab and another came up for hearing, a two-Judge Bench (Markandey Katju
and Gyan Sudha Misra, JJ.) doubted the correctness of the decisions of this
Court in B.S. Joshi and others v. State of Haryana and another[1], Nikhil
Merchant v. Central Bureau of Investigation and another[2] and Manoj Sharma
v. State and others[3] and referred the matter to a larger Bench. The
reference order reads as follows :
"Heard learned counsel for the petitioner.
The petitioner has been convicted under Section 420 and
Section 120B, IPC by the learned Magistrate. He filed an appeal
challenging his conviction before the learned Sessions Judge.
While his appeal was pending, he filed an application before the
learned Sessions Judge for compounding the offence, which,
according to the learned counsel, was directed to be taken up
along with the main appeal. Thereafter, the petitioner filed a
petition under Section 482, Cr.P.C. for quashing of the FIR on
the ground of compounding the offence. That petition under
Section 482 Cr.P.C. has been dismissed by the High Court by its
impugned order. Hence, this petition has been filed in this
Court.
Learned counsel for the petitioner has relied on three
decisions of this Court, all by two Judge Benches. They are B.S.
Joshi vs. State of
Central Bureau of Investigation and Another (2008) 9 SCC 677;
and Manoj Sharma vs. State and Others (2008) 16 SCC 1. In these
decisions, this Court has indirectly permitted compounding of
non-compoundable offences. One of us, Hon'ble Mr. Justice
Markandey Katju, was a member to the last two decisions.
Section 320, Cr.P.C. mentions certain offences as
compoundable, certain other offences as compoundable with the
permission of the Court, and the other offences as non-
compoundable vide Section 320(7).
Section 420, IPC, one of the counts on which the
petitioner has been convicted, no doubt, is a compoundable
offence with permission of the Court in view of Section 320,
Cr.P.C. but Section 120B IPC, the other count on which the
petitioner has been convicted, is a non-compoundable offence.
Section 120B (Criminal conspiracy) is a separate offence and
since it is a non-compoundable offence, we cannot permit it to
be compounded.
The Court cannot amend the statute and must maintain
judicial restraint in this connection. The Courts should not try
to take over the function of the Parliament or executive. It is
the legislature alone which can amend Section 320 Cr.P.C.
We are of the opinion that the above three decisions
require to be re-considered as, in our opinion, something which
cannot be done directly cannot be done indirectly. In our, prima
facie, opinion, non-compoundable offences cannot be permitted to
be compounded by the Court, whether directly or indirectly.
Hence, the above three decisions do not appear to us to be
correctly decided.
It is true that in the last two decisions, one of us,
Hon'ble Mr. Justice Markandey Katju, was a member but a Judge
should always be open to correct his mistakes. We feel that
these decisions require re-consideration and hence we direct
that this matter be placed before a larger Bench to reconsider
the correctness of the aforesaid three decisions.
Let the papers of this case be placed before Hon'ble Chief
Justice of India for constituting a larger Bench."
2. This is how these matters have come up for consideration before
us.
3. Two provisions of the Code of Criminal Procedure, 1973 (for
short, 'Code') which are vital for consideration of the issue referred to
the larger Bench are Sections 320 and 482. Section 320 of the Code provides
for compounding of certain offences punishable under the Indian Penal Code,
1860 (for short, 'IPC'). It reads as follows :
"S. 320. Compounding of offences.-(1) The offences punishable
under the sections of the Indian Penal Code, (45 of 1860)
specified in the first two columns of the Table next following
may be compounded by the persons mentioned in the third column
of that Table :
TABLE
|Offenc|Section of |Person by whom offence |
|e |the Indian |may be compounded |
| |Penal Code | |
| |applicable | |
|1 |2 |3 |
(2) The offences punishable under the sections of the Indian
Penal Code (45 of 1860) specified in the first two columns of
the table next following may, with the permission of the Court
before which any prosecution for such offence is pending, be
compounded by the persons mentioned in the third column of that
Table:--
TABLE
|Offen|Section of |Person by whom |
|ce |the Indian |offence may be |
| |Penal Code |compounded |
| |applicable | |
|1 |2 |3 |
(3) When an offence is compoundable under this section, the
abatement of such offence or an attempt to commit such offence
(when such attempt is itself an offence) or where the accused is
liable under section 34 or 149 of the Indian Penal Code (45 of
1860) may be compounded in like manner.
(4) (a) When the person who would otherwise be
competent to compound an offence under this section
is under the age of eighteen years or is an idiot or
a lunatic, any person competent to contract on his
behalf, may, with the permission of the Court,
compound such offence.
(b) When the person who would otherwise be competent to
compound an offence under this section is dead, the
legal representative, as defined in the Code of Civil
Procedure, 1908 of such person may, with the consent
of the Court, compound such offence.
(5) When the accused has been committed for trial or when he
has been convicted and an appeal is pending, no composition for
the offence shall be allowed without the leave of the Court to
which he is committed, or, as the case may be, before which the
appeal is to be heard.
(6) A High Court or Court of Session acting in the exercise of
its powers of revision under section 401 may allow any person to
compound any offence which such person is competent to compound
under this section.
(7) No offence shall be compounded if the accused is, by
reason of a previous conviction, liable either to enhanced
punishment or to a punishment of a different kind for such
offence.
(8) The composition of an offence under this section shall
have the effect of an acquittal of the accused with whom the
offence has been compounded.
(9) No offence shall be compounded except as provided by this
section."
4. Section 482 saves the inherent power of the High Court and it
reads as follows :
"S. 482. Saving of inherent power of High Court.-Nothing in
this Code shall be deemed to limit or affect the inherent powers
of the High Court to make such orders as may be necessary to
give effect to any order under this Code, or to prevent abuse of
the process of any Court or otherwise to secure the ends of
justice."
5. In B.S. Joshi1 , the undisputed facts were these : the husband
was one of the appellants while the wife was respondent no. 2 in the appeal
before this Court. They were married on 21.7.1999 and were living
separately since 15.7.2000. An FIR was registered under Sections
498-A/323 and 406, IPC at the instance of the wife on 2.1.2002. When the
criminal case registered at the instance of the wife was pending, the
dispute between the husband and wife and their family members was settled.
It appears that the wife filed an affidavit that her disputes with the
husband and the other members of his family had been finally settled and
she and her husband had agreed for mutual divorce. Based on the said
affidavit, the matter was taken to the High Court by both the parties and
they jointly prayed for quashing the criminal proceedings launched against
the husband and his family members on the basis of the FIR registered at
the wife's instance under Sections 498-A and 406 IPC. The High Court
dismissed the petition for quashing the FIR as in its view the offences
under Sections 498-A and 406, IPC were non-compoundable and the inherent
powers under Section 482 of the Code could not be invoked to by-pass
Section 320 of the Code. It is from this order that the matter reached this
Court. This Court held that the High Court in exercise of its inherent
powers could quash criminal proceedings or FIR or complaint and Section 320
of the Code did not limit or affect the powers under Section 482 of the
Code. The Court in paragraphs 14 and 15 (Pg. 682) of the Report held as
under :
"14. There is no doubt that the object of introducing Chapter XX-
A containing Section 498-A in the Indian Penal Code was to
prevent torture to a woman by her husband or by relatives of her
husband. Section 498-A was added with a view to punishing a
husband and his relatives who harass or torture the wife to
coerce her or her relatives to satisfy unlawful demands of
dowry. The hypertechnical view would be counterproductive and
would act against interests of women and against the object for
which this provision was added. There is every likelihood that
non-exercise of inherent power to quash the proceedings to meet
the ends of justice would prevent women from settling earlier.
That is not the object of Chapter XX-A of the Indian Penal Code.
15. In view of the above discussion, we hold that the High Court
in exercise of its inherent powers can quash criminal
proceedings or FIR or complaint and Section 320 of the Code does
not limit or affect the powers under Section 482 of the Code."
6. In Nikhil Merchant2, a company, M/s. Neemuch Emballage Ltd.,
Mumbai was granted financial assistance by Andhra Bank under various
facilities. On account of default in repayment of loans, the bank filed a
suit for recovery of the amount payable by the borrower company. The bank
also filed a complaint 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 the IPC read with Sections 5(2) and
5(1)(d) of the Prevention of Corruption Act, 1947 and Section 13(2) read
with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The suit
for recovery filed by the bank against the company and the Managing
Director of the Company was compromised. The suit was compromised upon the
defendants agreeing to pay the amounts due as per the schedule mentioned in
the consent terms. Clause 11 of the consent terms read, "agreed that save
as aforesaid neither party has any claim against the other and parties do
hereby withdraw all the allegations and counter-allegations made against
each other". Based on clause 11 of the consent terms, the Managing Director
of the Company, the appellant who was accused no. 3 in charge sheet filed
by CBI, made application for discharge from the criminal complaint. The
said application was rejected by the Special Judge (CBI), Greater Bombay,
which came to be challenged before the Bombay High Court. The contention
before the High Court was that since the subject matter of the dispute had
been settled between the appellant and the bank, it would be unreasonable
to continue with the criminal proceedings. The High Court rejected the
application for discharge from the criminal cases. It is from this order
that the matter reached this Court by way of special leave. The Court
having regard to the facts of the case and the earlier decision of this
Court in B.S. Joshi1, set aside the order of the High Court and quashed the
criminal proceedings by consideration of the matter thus:
"28. The basic intention of the accused in this case appears to
have been to misrepresent the financial status of the Company,
M/s Neemuch Emballage Ltd., Mumbai, in order to avail of the
credit facilities to an extent to which the Company was not
entitled. In other words, the main intention of the Company and
its officers was to cheat the Bank and induce it to part with
additional amounts of credit to which the Company was not
otherwise entitled.
29. Despite the ingredients and the factual content of an
offence of cheating punishable under Section 420 IPC, the same
has been made compoundable under sub-section (2) of Section 320
CrPC with the leave of the court. Of course, forgery has not
been included as one of the compoundable offences, but it is in
such cases that the principle enunciated in B.S. Joshi case
becomes relevant.
30. In the instant case, the disputes between the Company and
the Bank have been set at rest on the basis of the compromise
arrived at by them whereunder the dues of the Bank have been
cleared and the Bank does not appear to have any further claim
against the Company. What, however, remains is the fact that
certain documents were alleged to have been created by the
appellant herein in order to avail of credit facilities beyond
the limit to which the Company was entitled. The dispute
involved herein has overtones of a civil dispute with certain
criminal facets. The question which is required to be answered
in this case is whether the power which independently lies with
this Court to quash the criminal proceedings pursuant to the
compromise arrived at, should at all be exercised?
31. On an overall view of the facts as indicated hereinabove and
keeping in mind the decision of this Court in B.S. Joshi case
and the compromise arrived at between the Company and the Bank
as also Clause 11 of the consent terms filed in the suit filed
by the Bank, we are satisfied that this is a fit case where
technicality should not be allowed to stand in the way in the
quashing of the criminal proceedings, since, in our view, the
continuance of the same after the compromise arrived at between
the parties would be a futile exercise."
7. In Manoj Sharma3, the Court was concerned with the question
whether an F.I.R. under Sections 420/468/471/34/120-B IPC can be quashed
either under Section 482 of the Code or under Article 226 of the
Constitution when the accused and the complainant have compromised and
settled the matter between themselves. Altamas Kabir, J., who delivered the
lead judgment referred to B.S. Joshi1 and the submission made on behalf of
the State that B.S. Joshi1 required a second look and held that the Court
was not inclined to accept the contention made on behalf of the State that
the decision in B.S. Joshi1 required reconsideration, at least not in the
facts of the case. It was held that what was decided in B.S. Joshi1 was
the power and authority of the High Court to exercise jurisdiction under
Section 482 of the Code or under Article 226 of the Constitution to quash
offences which were not compoundable. The law stated in B.S. Joshi1 simply
indicated the powers of the High Court to quash any criminal proceeding or
first information report or complaint whether the offences were
compoundable or not. Altamas Kabir, J. further observed, "The ultimate
exercise of discretion under Section 482 CrPC or under Article 226 of the
Constitution is with the court which has to exercise such jurisdiction in
the facts of each case. It has been explained that the said power is in no
way limited by the provisions of Section 320 CrPC. We are unable to
disagree with such statement of law. In any event, in this case, we are
only required to consider whether the High Court had exercised its
jurisdiction under Section 482 CrPC legally and correctly." Then in
paragraphs 8 and 9 (pg. 5) of the Report, Altamas Kabir, J., inter
alia, held as under :
"8. .....Once the complainant decided not to pursue the matter
further, the High Court could have taken a more pragmatic view
of the matter. We do not suggest that while exercising its
powers under Article 226 of the Constitution the High Court
could not have refused to quash the first information report,
but what we do say is that the matter could have been considered
by the High Court with greater pragmatism in the facts of the
case.
9. ......In the facts of this case we are of the view that
continuing with the criminal proceedings would be an exercise in
futility........."
8. Markandey Katju, J. although concurred with the view of Altamas
Kabir, J. that criminal proceedings in that 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 the Code or Article 226 of the
Constitution on the basis that the parties have entered into compromise. In
paragraphs 27 and 28 (pg. 10) of the report he held as under:
"27. There can be no doubt that a case under Section 302 IPC or
other serious offences like those under Sections 395, 307 or 304-
B cannot be compounded and hence proceedings in those provisions
cannot be quashed by the High Court in exercise of its power
under Section 482 CrPC or in writ jurisdiction on the basis of
compromise. However, in some other cases (like those akin to a
civil nature), the proceedings can be quashed by the High Court
if the parties have come to an amicable settlement even though
the provisions are not compoundable. Where a line is to be drawn
will have to be decided in some later decisions of this Court,
preferably by a larger Bench (so as to make it more
authoritative). Some guidelines will have to be evolved in this
connection and the matter cannot be left at the sole unguided
discretion of Judges, otherwise there may be conflicting
decisions and judicial anarchy. A judicial discretion has to be
exercised on some objective guiding principles and criteria, and
not on the whims and fancies of individual Judges. Discretion,
after all, cannot be the Chancellor's foot.
28. I am expressing this opinion because Shri B.B. Singh,
learned counsel for the respondent has rightly expressed his
concern that the decision in B.S. Joshi case should not be
understood to have meant that Judges can quash any kind of
criminal case merely because there has been a compromise between
the parties. After all, a crime is an offence against society,
and not merely against a private individual."
9. Dr. Abhishek Manu Singhvi, learned senior counsel for the
petitioner in SLP(Crl.) No. 6324 of 2009 submitted that the inherent power
of the High Court to quash a non-compoundable offence was not circumscribed
by any of the provisions of the Code, 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 Code. He, thus, submitted that in exercise of its inherent powers
under Section 482, 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 the Code 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 flavour; (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.
10. Shri P.P. Rao, learned senior counsel for the petitioner in
Special Leave Petition (Crl.) No. 5921 of 2009 submitted that Section 482
of the Code is complete answer to the reference made to the larger Bench.
He analysed Section 482 and Section 320 of the Code and submitted that
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.
11. Mr. P.P. Rao, learned senior counsel submitted that 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.
12. Mr. V. Giri, learned senior counsel for the respondent
(accused) in Special Leave Petition (Crl.) No. 6138 of 2006 submitted that
the real question that needs to be considered by this Court in the
reference is whether Section 320(9) of the Code creates a bar or limits or
affects the inherent powers of the High Court under Section 482 of the
Code. It was submitted that Section 320(9) does not create a bar or limit
or affect the inherent powers of the High Court in the matter of quashing
any criminal proceedings. Relying upon various decisions of this Court, it
was submitted that it has been consistently held that the High Court has
unfettered powers under Section 482 of the Code to secure the ends of
justice and prevent abuse of the process of the Court. He also submitted
that 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.
13. Learned counsel for the petitioner in Special Leave Petition
(Crl.) No. 8989 of 2010 submitted that the court should have positive view
to quash the proceedings once the aggrieved party has compromised the
matter with the wrong doer. It was submitted that 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. Learned counsel submitted that the 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 (S.326), attempt to murder (S.307),
rape (S.376), trespassing (S.452) and kidnapping (S.364, 365) etc.
14. Mr. P. P. Malhotra, learned Additional Solicitor General
referred to the scheme of the Code. He submitted that in any criminal case
investigated by police on filing the report under Section 173 of the Code,
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 the Code 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.
15. Learned Additional Solicitor General would submit that 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.
16. If power under Section 482 is exercised, in relation to non-
compoundable offences, it will amount to what is prohibited by law and such
cases cannot be brought within the parameters 'to secure ends of justice'.
Any order in violation and breach of statutory provisions, learned
Additional Solicitor General would submit, would be a case against the ends
of justice. He heavily relied upon a Constitution Bench decision of this
Court in Central Bureau of Investigation and others v. Keshub Mahindra and
others[4] wherein this Court held, 'no decision by any court, this Court
not excluded, can be read in a manner as to nullify the express provisions
of an Act or the Code.' With reference to B.S. Joshi1, learned Additional
Solicitor General submitted that that was a case where the dispute was
between the husband and wife and the court felt that if the proceedings
were not quashed, it would prevent the woman from settling in life and the
wife had already filed an affidavit that there were temperamental
differences and she was not supporting continuation of criminal
proceedings. As regards, Nikhil Merchant2, learned Additional Solicitor
General submitted that this Court in State of
and others[5] held that the said decision was a decision under Article 142
of the Constitution. With regard to Manoj Sharma3, learned Additional
Solicitor General referred to the observations made by Markandey Katju, J.
in paragraphs 24 and 28 of the Report.
17. Learned Additional Solicitor General submitted that 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.
18. More than 65 years back, in Emperor v. Khwaja Nazir Ahmed[6],
it was observed by the Privy Council that Section 561A (corresponding to
Section 482 of the Code) had not given increased powers to the Court which
it did not possess before that section was enacted. It was observed, `The
section gives no new powers, it only provides that those which the court
already inherently possess shall be preserved and is inserted lest, as
their Lordships think, it should be considered that the only powers
possessed by the court are those expressly conferred by the Criminal
Procedure Code and that no inherent power had survived the passing of the
Code'.
19. In Khushi Ram v. Hashim and others[7], this Court held as under
:
"It is unnecessary to emphasise that the inherent power of the
High Court under Section 561A cannot be invoked in regard to
matters which are directly covered by the specific provisions of
the Code..."
20. The above view of Privy Council in Khwaja Nazir Ahmed6 and
another decision in Lala Jairam Das & Ors. v. Emperor[8] was expressly
accepted by this Court in State of
The Court said :
"7. It is now well settled that the section confers no new
powers on the High Court. It merely safeguards all existing
inherent powers possessed by a High Court necessary (among other
purposes) to secure the ends of justice. The section provides
that those powers which the court inherently possesses shall be
preserved lest it be considered that the only powers possessed
by the court are those expressly conferred by the Code and that
no inherent powers had survived the passing of the
Code..........."
21. In Pampathy v. State of Mysore[10], a three-Judge Bench of this
Court stated as follows :
" The inherent power of the High Court mentioned in Section
561A, Criminal Procedure Code can be exercised only for either
of the three purposes specifically mentioned in the section. The
inherent power cannot be invoked in respect of any matter
covered by the specific provisions of the Code. It cannot also
be invoked if its exercise would be inconsistent with any of the
specific provisions of the Code. It is only if the matter in
question is not covered by any specific provisions of the Code
that s. 561A can come into operation......."
22. In State of Karnataka v. L. Muniswamy and others[11], a three-
Judge Bench of this Court referred to Section 482 of the Code and in
paragraph 7 (pg. 703) of the Report held as under :
"7. ........ In the exercise of this wholesome power, the High
Court is entitled to quash a proceeding if it comes to the
conclusion that allowing the proceeding to continue would be an
abuse of the process of the Court or that the ends of justice
require that the proceeding ought to be quashed. The saving of
the High Court's inherent powers, both in civil and criminal
matters, is designed to achieve a salutary public purpose which
is that a court proceeding ought not to be permitted to
degenerate into a weapon of harassment or persecution. In a
criminal case, the veiled object behind a lame prosecution, the
very nature of the material on which the structure of the
prosecution rests and the like would justify the High Court in
quashing the proceeding in the interest of justice. The ends of
justice are higher than the ends of mere law though justice has
got to be administered according to laws made by the
legislature. The compelling necessity for making these
observations is that without a proper realisation of the object
and purpose of the provision which seeks to save the inherent
powers of the High Court to do justice between the State and its
subjects, it would be impossible to appreciate the width and
contours of that salient jurisdiction."
23. The Court then observed that the considerations justifying the
exercise of inherent powers for securing the ends of justice naturally vary
from case to case and a jurisdiction as wholesome as the one conferred by
Section 482 ought not to be encased within the straitjacket of a rigid
formula.
24. A three-Judge Bench of this Court in Madhu Limaye v. The State
of
Section 482 for quashing interlocutory order even though revision under
Section 397(2) of the Code was prohibited. The Court noticed the principles
in relation to the exercise of the inherent power of the High Court as
under :
"(1) That the power is not to be resorted to if there is a
specific provision in the Code for the redress of the grievance
of the aggrieved party;
(2) That it should be exercised very sparingly to prevent
abuse of process of any Court or otherwise to secure the ends of
justice;
(3) That it should not be exercised as against the express bar
of law engrafted in any other provision of the Code."
25. In Raj Kapoor and others v. State and others[13], the Court
explained the width and amplitude of the inherent power of the High Court
under Section 482 vis-à-vis revisional power under Section 397 as follows:
"10. .......The opening words of Section 482 contradict this
contention because nothing of the Code, not even Section 397,
can affect the amplitude of the inherent power preserved in so
many terms by the language of Section 482. Even so, a general
principle pervades this branch of law when a specific provision
is made: easy resort to inherent power is not right except under
compelling circumstances. Not that there is absence of
jurisdiction but that inherent power should not invade areas set
apart for specific power under the same Code. In Madhu Limaye's
case this Court has exhaustively and, if I may say so with great
respect, correctly discussed and delineated the law beyond
mistake. While it is true that Section 482 is pervasive it
should not subvert legal interdicts written into the same Code,
such, for instance, in Section 397(2). Apparent conflict may
arise in some situations between the two provisions and a happy
solution
"would be to say that the bar provided in sub-section (2) of
Section 397 operates only in exercise of the revisional power
of the High Court, meaning thereby that the High Court will
have no power of revision in relation to any interlocutory
order. Then in accordance with one or the other principles
enunciated above, the inherent power will come into play,
there being no other provision in the Code for the redress of
the grievance of the aggrieved party. But then, if the order
assailed is purely of an interlocutory character which could
be corrected in exercise of the revisional power of the High
Court under the 1898 Code, the High Court will refuse to
exercise its inherent power. But in case the impugned order
clearly brings about a situation which is an abuse of the
process of the Court or for the purpose of securing the ends
of justice interference by the High Court is absolutely
necessary, then nothing contained in Section 397(2) can limit
or affect the exercise of the inherent power by the High
Court. But such cases would be few and far between. The High
Court must exercise the inherent power very sparingly. One
such case would be the desirability of the quashing of a
criminal proceeding initiated illegally, vexatiously or as
being without jurisdiction".
In short, there is no total ban on the exercise of inherent
power where abuse of the process of the court or other
extraordinary situation excites the court's jurisdiction. The
limitation is self-restraint, nothing more. The policy of the
law is clear that interlocutory orders, pure and simple, should
not be taken up to the High Court resulting in unnecessary
litigation and delay. At the other extreme, final orders are
clearly capable of being considered in exercise of inherent
power, if glaring injustice stares the court in the face. In
between is a tertium quid, as Untwalia, J. has pointed out as
for example, where it is more than a purely interlocutory order
and less than a final disposal. The present case falls under
that category where the accused complain of harassment through
the court's process. Can we state that in this third category
the inherent power can be exercised? In the words of Untwalia,
J.: (SCC p. 556, para 10)
"The answer is obvious that the bar will not operate to
prevent the abuse of the process of the Court and/or to
secure the ends of justice. The label of the petition filed
by an aggrieved party is immaterial. The High Court can
examine the matter in an appropriate case under its inherent
powers. The present case undoubtedly falls for exercise of
the power of the High Court in accordance with Section 482 of
the 1973 Code, even assuming, although not accepting, that
invoking the revisional power of the High Court is
impermissible."
I am, therefore clear in my mind that the inherent power is not
rebuffed in the case situation before us. Counsel on both sides,
sensitively responding to our allergy for legalistics, rightly
agreed that the fanatical insistence on the formal filing of a
copy of the order under cessation need not take up this court's
time. Our conclusion concurs with the concession of counsel on
both sides that merely because a copy of the order has not been
produced, despite its presence in the records in the court, it
is not possible for me to hold that the entire revisory power
stands frustrated and the inherent power stultified."
26. In Simrikhia v. Dolley Mukherjee and Chhabi Mukherjee and
another[14], the Court considered the scope of Section 482 of the Code in a
case where on dismissal of petition under Section 482, a second petition
under Section 482 of the Code was made. The contention before this Court
was that the second petition under Section 482 of the Code was not
entertainable; the exercise of power under Section 482 on a second petition
by the same party on the same ground virtually amounts to review of the
earlier order and is contrary to the spirit of Section 362 of the Code and
the High Court was in error in having quashed the proceedings by adopting
that course. While accepting this argument, this Court held as follows :
"3. ......The inherent power under Section 482 is intended to
prevent the abuse of the process of the court and to secure ends
of justice. Such power cannot be exercised to do something which
is expressly barred under the Code. If any consideration of the
facts by way of review is not permissible under the Code and is
expressly barred, it is not for the court to exercise its
inherent power to reconsider the matter and record a conflicting
decision. If there had been change in the circumstances of the
case, it would be in order for the High Court to exercise its
inherent powers in the prevailing circumstances and pass
appropriate orders to secure the ends of justice or to prevent
the abuse of the process of the court. Where there is no such
changed circumstances and the decision has to be arrived at on
the facts that existed as on the date of the earlier order, the
exercise of the power to reconsider the same materials to arrive
at different conclusion is in effect a review, which is
expressly barred under Section 362.
5. Section 362 of the Code expressly provides that no court when
it has signed its judgment or final order disposing of a case,
shall alter or review the same except to correct a clerical or
arithmetical error save as otherwise provided by the Code.
Section 482 enables the High Court to make such order as may be
necessary to give effect to any order under the Code or to
prevent abuse of the process of any court or otherwise to secure
the ends of justice. The inherent powers, however, as much are
controlled by principle and precedent as are its express powers
by statute. If a matter is covered by an express letter of law,
the court cannot give a go-by to the statutory provisions and
instead evolve a new provision in the garb of inherent
jurisdiction.
7. The inherent jurisdiction of the High Court cannot be invoked
to override bar of review under Section 362. It is clearly
stated in Sooraj Devi v. Pyare Lal, that the inherent power of
the court cannot be exercised for doing that which is
specifically prohibited by the Code. The law is therefore clear
that the inherent power cannot be exercised for doing that which
cannot be done on account of the bar under other provisions of
the Code. The court is not empowered to review its own decision
under the purported exercise of inherent power. We find that the
impugned order in this case is in effect one reviewing the
earlier order on a reconsideration of the same materials. The
High Court has grievously erred in doing so. Even on merits, we
do not find any compelling reasons to quash the proceedings at
that stage."
27. In Dharampal & Ors. v. Ramshri (Smt.) and others[15], this
Court observed as follows :
"......It is now well settled that the inherent powers under
Section 482 of the Code cannot be utilized for exercising powers
which are expressly barred by the Code......."
28. In Arun Shankar Shukla v. State of Uttar Pradesh and ors.[16] ,
a two-Judge Bench of this Court held as under :
"....It is true that under Section 482 of the Code, the High
Court has inherent powers to make such orders as may be
necessary to give effect to any order under the Code or to
prevent the abuse of process of any court or otherwise to secure
the ends of justice. But the expressions "abuse of the process
of law" or "to secure the ends of justice" do not confer
unlimited jurisdiction on the High Court and the alleged abuse
of the process of law or the ends of justice could only be
secured in accordance with law including procedural law and not
otherwise. Further, inherent powers are in the nature of
extraordinary powers to be used sparingly for achieving the
object mentioned in Section 482 of the Code in cases where there
is no express provision empowering the High Court to achieve the
said object. It is well-neigh settled that inherent power is not
to be invoked in respect of any matter covered by specific
provisions of the Code or if its exercise would infringe any
specific provision of the Code. In the present case, the High
Court overlooked the procedural law which empowered the
convicted accused to prefer statutory appeal against conviction
of the offence. The High Court has intervened at an uncalled for
stage and soft-pedalled the course of justice at a very crucial
stage of the trial."
29. In G. Sagar Suri and another v. State of U.P. and others[17],
the Court was concerned with the order of the High Court whereby the
application under Section 482 of the Code for quashing the criminal
proceedings under Sections 406 and 420 of the IPC pending in the Court of
Chief Judicial Magistrate, Ghaziabad was dismissed. In paragraph 8 (pg.
643) of the Report, the Court held as under:
"8. Jurisdiction under Section 482 of the Code has to be
exercised with great care. In exercise of its jurisdiction the
High Court is not to examine the matter superficially. It is to
be seen if a matter, which is essentially of a civil nature, has
been given a cloak of criminal offence. Criminal proceedings are
not a short cut of other remedies available in law. Before
issuing process a criminal court has to exercise a great deal of
caution. For the accused it is a serious matter. This Court has
laid certain principles on the basis of which the High Court is
to exercise its jurisdiction under Section 482 of the Code.
Jurisdiction under this section has to be exercised to prevent
abuse of the process of any court or otherwise to secure the
ends of justice."
30. A three-Judge Bench of this Court in State of Karnataka v. M.
Devendrappa and another[18] restated what has been stated in earlier
decisions that Section 482 does not confer any new powers on the High
Court, it only saves the inherent power which the court possessed before
the commencement of the Code. The Court went on to explain the exercise of
inherent power by the High Court in paragraph 6 (Pg.94) of the Report as
under :
"6. .........It envisages three circumstances under which the
inherent jurisdiction may be exercised, namely, (i) to give
effect to an order under the Code, (ii) to prevent abuse of the
process of court, and (iii) to otherwise secure the ends of
justice. It is neither possible nor desirable to lay down any
inflexible rule which would govern the exercise of inherent
jurisdiction. No legislative enactment dealing with procedure
can provide for all cases that may possibly arise. Courts,
therefore, have inherent powers apart from express provisions of
law which are necessary for proper discharge of functions and
duties imposed upon them by law. That is the doctrine which
finds expression in the section which merely recognizes and
preserves inherent powers of the High Courts. All courts,
whether civil or criminal possess, in the absence of any express
provision, as inherent in their constitution, all such powers as
are necessary to do the right and to undo a wrong in course of
administration of justice on the principle quando lex aliquid
alicui concedit, concedere videtur et id sine quo res ipsae esse
non potest (when the law gives a person anything it gives him
that without which it cannot exist). While exercising powers
under the section, the court does not function as a court of
appeal or revision. Inherent jurisdiction under the section
though wide has to be exercised sparingly, carefully and with
caution and only when such exercise is justified by the tests
specifically laid down in the section itself. It is to be
exercised ex debito justitiae to do real and substantial justice
for the administration of which alone courts exist. Authority of
the court exists for advancement of justice and if any attempt
is made to abuse that authority so as to produce injustice, the
court has power to prevent abuse. It would be an abuse of
process of the court to allow any action which would result in
injustice and prevent promotion of justice. In exercise of the
powers court would be justified to quash any proceeding if it
finds that initiation/continuance of it amounts to abuse of the
process of court or quashing of these proceedings would
otherwise serve the ends of justice........"
The Court in paragraph 9 (Pg. 96) further stated :
"9. .........the powers possessed by the High Court under
Section 482 of the Code are very wide and the very plenitude of
the power requires great caution in its exercise. Court must be
careful to see that its decision in exercise of this power is
based on sound principles. The inherent power should not be
exercised to stifle a legitimate prosecution. The High Court
being the highest court of a State should normally refrain from
giving a prima facie decision in a case where the entire facts
are incomplete and hazy, more so when the evidence has not been
collected and produced before the Court and the issues involved,
whether factual or legal, are of magnitude and cannot be seen in
their true perspective without sufficient material. Of course,
no hard-and-fast rule can be laid down in regard to cases in
which the High Court will exercise its extraordinary
jurisdiction of quashing the proceeding at any stage......"
31. In Central Bureau of Investigation v. A. Ravishankar Prasad and
others[19], the Court observed in paragraphs 17,19,20 and 39 (Pgs. 356, 357
and 363) of the Report as follows :
"17. Undoubtedly, the High Court possesses inherent powers under
Section 482 of the Code of Criminal Procedure. These inherent
powers of the High Court are meant to act ex debito justitiae to
do real and substantial justice, for the administration of which
alone it exists, or to prevent abuse of the process of the
court.
19. This Court time and again has observed that the
extraordinary power under Section 482 CrPC should be exercised
sparingly and with great care and caution. The Court would be
justified in exercising the power when it is imperative to
exercise the power in order to prevent injustice. In order to
understand the nature and scope of power under Section 482 CrPC
it has become necessary to recapitulate the ratio of the decided
cases.
20. Reference to the following cases would reveal that the
Courts have consistently taken the view that they must use the
court's extraordinary power only to prevent injustice and secure
the ends of justice. We have largely inherited the provisions of
inherent powers from the English jurisprudence, therefore the
principles decided by the English courts would be of relevance
for us. It is generally agreed that the Crown Court has inherent
power to protect its process from abuse. The English courts have
also used inherent power to achieve the same objective.
39. Careful analysis of all these judgments clearly reveals that
the exercise of inherent powers would entirely depend on the
facts and circumstances of each case. The object of
incorporating inherent powers in the Code is to prevent abuse of
the process of the court or to secure ends of justice."
32 In Devendra and others v. State of Uttar Pradesh and
another[20], while dealing with the question whether a pure civil dispute
can be subject matter of a criminal proceeding under Sections 420, 467, 468
and 469 IPC, a two-Judge Bench of this Court observed that the High Court
ordinarily would exercise its jurisdiction under Section 482 of the Code if
the allegations made in the First Information Report, even if given face
value and taken to be correct in their entirety, do not make out any
offence.
33. In Sushil Suri v. Central Bureau of Investigation and
another[21], the Court considered the scope and ambit of the inherent
jurisdiction of the High Court and made the following observations in para
16 (pg. 715) of the Report:
"16. Section 482 CrPC itself envisages three circumstances under
which the inherent jurisdiction may be exercised by the High
Court, namely, (i) to give effect to an order under CrPC; (ii)
to prevent an abuse of the process of court; and (iii) to
otherwise secure the ends of justice. It is trite that although
the power possessed by the High Court under the said provision
is very wide but it is not unbridled. It has to be exercised
sparingly, carefully and cautiously, ex debito justitiae to do
real and substantial justice for which alone the Court exists.
Nevertheless, it is neither feasible nor desirable to lay down
any inflexible rule which would govern the exercise of inherent
jurisdiction of the Court. Yet, in numerous cases, this Court
has laid down certain broad principles which may be borne in
mind while exercising jurisdiction under Section 482 CrPC.
Though it is emphasised that exercise of inherent powers would
depend on the facts and circumstances of each case, but the
common thread which runs through all the decisions on the
subject is that the Court would be justified in invoking its
inherent jurisdiction where the allegations made in the
complaint or charge-sheet, as the case may be, taken at their
face value and accepted in their entirety do not constitute the
offence alleged."
34. Besides B.S. Joshi1, Nikhil Merchant2 and Manoj Sharma3, there
are other decisions of this Court where the scope of Section 320 vis-à-vis
the inherent power of the High Court under Section 482 of the Code has come
up for consideration.
35. In Madan Mohan Abbot v. State of Punjab[22], in the appeal
before this Court which arose from an order of the High Court refusing to
quash the FIR against the appellant lodged under Sections 379, 406, 409,
418, 506/34, IPC on account of compromise entered into between the
complainant and the accused, in paragraphs 5 and 6 (pg. 584) of the Report,
the Court held as under :
"5. It is on the basis of this compromise that the application
was filed in the High Court for quashing of proceedings which
has been dismissed by the impugned order. We notice from a
reading of the FIR and the other documents on record that the
dispute was purely a personal one between two contesting parties
and that it arose out of extensive business dealings between
them and that there was absolutely no public policy involved in
the nature of the allegations made against the accused. We are,
therefore, of the opinion that no useful purpose would be served
in continuing with the proceedings in the light of the
compromise and also in the light of the fact that the
complainant has on 11-1-2004 passed away and the possibility of
a conviction being recorded has thus to be ruled out.
6. We need to emphasise that it is perhaps advisable that in
disputes where the question involved is of a purely personal
nature, the court should ordinarily accept the terms of the
compromise even in criminal proceedings as keeping the matter
alive with no possibility of a result in favour of the
prosecution is a luxury which the courts, grossly overburdened
as they are, cannot afford and that the time so saved can be
utilised in deciding more effective and meaningful litigation.
This is a common sense approach to the matter based on ground of
realities and bereft of the technicalities of the law."
36. In Ishwar Singh v. State of
concerned with a case where the accused - appellant was convicted and
sentenced by the Additional Sessions Judge for an offence punishable under
Section 307, IPC. The High Court dismissed the appeal from the judgment and
conviction. In the appeal, by special leave, the injured - complainant was
ordered to be joined as party as it was stated by the counsel for the
appellant that mutual compromise has been arrived at between the parties,
i.e. accused on the one hand and the complainant - victim on the other hand
during the pendency of the proceedings before this Court. It was prayed on
behalf of the appellant that the appeal be disposed of on the basis of
compromise between the parties. In para 12 (pg. 670) of the Report, the
Court observed as follows :
"12. Now, it cannot be gainsaid that an offence punishable under
Section 307 IPC is not a compoundable offence. Section 320 of
the Code of Criminal Procedure, 1973 expressly states that no
offence shall be compounded if it is not compoundable under the
Code. At the same time, however, while dealing with such
matters, this Court may take into account a relevant and
important consideration about compromise between the parties for
the purpose of reduction of sentence."
37. The Court also referred to the earlier decisions of this Court
in Jetha Ram v. State of Rajasthan[24], Murugesan v. Ganapathy Velar[25],
Ishwarlal v. State of M.P.[26] and Mahesh Chand & another v. State of
Rajasthan[27] and noted in paragraph 13 (pg. 670) of the Report as follows:
"13. In Jetha Ram v. State of Rajasthan, Murugesan v. Ganapathy
Velar and Ishwarlal v. State of M.P. this Court, while taking
into account the fact of compromise between the parties, reduced
sentence imposed on the appellant-accused to already undergone,
though the offences were not compoundable. But it was also
stated that in Mahesh Chand v. State of
was ordered to be compounded."
Then, in paragraphs 14 and 15 (pg. 670) the Court held as under :
"14. In our considered opinion, it would not be appropriate to
order compounding of an offence not compoundable under the Code
ignoring and keeping aside statutory provisions. In our
judgment, however, limited submission of the learned counsel for
the appellant deserves consideration that while imposing
substantive sentence, the factum of compromise between the
parties is indeed a relevant circumstance which the Court may
keep in mind.
15. In the instant case, the incident took place before more
than fifteen years; the parties are residing in one and the same
village and they are also relatives. The appellant was about 20
years of age at the time of commission of crime. It was his
first offence. After conviction, the petitioner was taken into
custody. During the pendency of appeal before the High Court, he
was enlarged on bail but, after the decision of the High Court,
he again surrendered and is in jail at present. Though he had
applied for bail, the prayer was not granted and he was not
released on bail. Considering the totality of facts and
circumstances, in our opinion, the ends of justice would be met
if the sentence of imprisonment awarded to the appellant
(Accused 1) is reduced to the period already undergone."
38. In Rumi Dhar (Smt.) v. State of West Bengal and another[28]
, the Court was concerned with applicability of Section 320 of the Code
where the accused was being prosecuted for commission of offences under
Sections 120-B/420/467/468/471 of the IPC along with the bank officers
who were being prosecuted under Section 13(2) read with Section 13(1)(d)
of Prevention of Corruption Act, 1988. The accused had paid the entire
due amount as per the settlement with the bank in the matter of recovery
before the Debts Recovery Tribunal. The accused prayed for her discharge
on the grounds (i) having regard to the settlement arrived at between her
and the bank, no case for proceeding against her has been made out; (ii)
the amount having already been paid and the title deeds having been
returned, the criminal proceedings should be dropped on the basis of the
settlement and (iii) the dispute between the parties were purely civil in
nature and that she had not fabricated any document or cheated the bank
in any way whatsoever and charges could not have been framed against her.
The CBI contested the application for discharge on the ground that mere
repayment to the bank could not exonerate the accused from the criminal
proceeding. The two-Judge Bench of this Court referred to Section 320 of
the Code and the earlier decisions of this Court in CBI v. Duncans Agro
Industries Limited[29], State of Haryana v. Bhajan Lal[30], State of
Bihar v. P.P. Sharma[31], Janata Dal v. H.S. Chowdhary[32] and Nikhil
Merchant2 which followed the decision in B.S. Joshi1 and then with
reference to Article 142 of the Constitution and Section 482 of the Code
refused to quash the charge against the accused by holding as under:
"24. The jurisdiction of the Court under Article 142 of the
Constitution of India is not in dispute. Exercise of such power
would, however, depend on the facts and circumstances of each
case. The High Court, in exercise of its jurisdiction under
Section 482 of the Code of Criminal Procedure, and this Court,
in terms of Article 142 of the Constitution of India, would not
direct quashing of a case involving crime against the society
particularly when both the learned Special Judge as also the
High Court have found that a prima facie case has been made out
against the appellant herein for framing the charge."
39. In Shiji alias Pappu and others vs. Radhika and another[33]
this Court considered the exercise of inherent power by the High Court
under Section 482 in a matter where the offence was not compoundable as the
accused was already involved in commission of the offences punishable under
Sections 354 and 394 IPC. The High Court rejected the prayer by holding
that the offences with which appellants were charged are not 'personal
in nature' to justify quashing the criminal proceedings on the basis of a
compromise arrived at between the complainant and the appellants. This
Court considered earlier decisions of this Court, the provisions contained
in Sections 320 and 394 of the Code and in paragraphs 17, 18 and 19 (pgs.
712 and 713) of the Report held as under:
"17. It is manifest that simply because an offence is not
compoundable under Section 320 CrPC is by itself no reason for
the High Court to refuse exercise of its power under Section 482
CrPC. That power can in our opinion be exercised in cases where
there is no chance of recording a conviction against the accused
and the entire exercise of a trial is destined to be an exercise
in futility. There is a subtle distinction between compounding
of offences by the parties before the trial court or in appeal
on the one hand and the exercise of power by the High Court to
quash the prosecution under Section 482 CrPC on the other. While
a court trying an accused or hearing an appeal against
conviction, may not be competent to permit compounding of an
offence based on a settlement arrived at between the parties in
cases where the offences are not compoundable under Section 320,
the High Court may quash the prosecution even in cases where the
offences with which the accused stand charged are non-
compoundable. The inherent powers of the High Court under
Section 482 CrPC are not for that purpose controlled by Section
320 CrPC.
18. Having said so, we must hasten to add that the plenitude of
the power under Section 482 CrPC by itself, makes it obligatory
for the High Court to exercise the same with utmost care and
caution. The width and the nature of the power itself demands
that its exercise is sparing and only in cases where the High
Court is, for reasons to be recorded, of the clear view that
continuance of the prosecution would be nothing but an abuse of
the process of law. It is neither necessary nor proper for us to
enumerate the situations in which the exercise of power under
Section 482 may be justified. All that we need to say is that
the exercise of power must be for securing the ends of justice
and only in cases where refusal to exercise that power may
result in the abuse of the process of law. The High Court may be
justified in declining interference if it is called upon to
appreciate evidence for it cannot assume the role of an
appellate court while dealing with a petition under Section 482
of the Criminal Procedure Code. Subject to the above, the High
Court will have to consider the facts and circumstances of each
case to determine whether it is a fit case in which the inherent
powers may be invoked.
19. Coming to the case at hand, we are of the view that the
incident in question had its genesis in a dispute relating to
the access to the two plots which are adjacent to each other. It
was not a case of broad daylight robbery for gain. It was a case
which has its origin in the civil dispute between the parties,
which dispute has, it appears, been resolved by them. That being
so, continuance of the prosecution where the complainant is not
ready to support the allegations which are now described by her
as arising out of some "misunderstanding and misconception" will
be a futile exercise that will serve no purpose. It is
noteworthy that the two alleged eyewitnesses, who are closely
related to the complainant, are also no longer supportive of the
prosecution version. The continuance of the proceedings is thus
nothing but an empty formality. Section 482 CrPC could, in such
circumstances, be justifiably invoked by the High Court to
prevent abuse of the process of law and thereby preventing a
wasteful exercise by the courts below".
40. In Ashok Sadarangani and Anr. vs. Union of India and
others[34], the issue under consideration was whether an offence which was
not compoundable under the provisions of the Code could be quashed. That
was a case where a criminal case was registered against the accused
persons under Sections 120-B, 465, 467, 468 and 471 of IPC. The allegation
was that accused secured the credit facilities by submitting forged
property documents as collaterals and utilized such facilities in a
dishonest and fraudulent manner by opening Letters of Credit in respect of
foreign supplies of goods, without actually bringing any goods but inducing
the Bank to negotiate the Letters of Credit in favour of foreign suppliers
and also by misusing the cash credit facility. The Court considered the
earlier decisions of this Court including B.S. Joshi1, Nikhil Merchant2,
Manoj Sharma3, Shiji alias Pappu33, Duncans Agro Industries Limited29, Rumi
Dhar (Smt.)28 and Sushil Suri21 and also referred to the order of
reference in one of the cases before us. In paragraphs 17, 18, 19 and 20
of the Report it was held as under:-
"17. Having carefully considered the facts and circumstances of
the case, as also the law relating to the continuance of
criminal cases where the complainant and the accused had settled
their differences and had arrived at an amicable arrangement, we
see no reason to differ with the views that had been taken in
Nikhil Merchant's case or Manoj Sharma's case (supra) or the
several decisions that have come thereafter. It is, however, no
coincidence that the golden thread which runs through all the
decisions cited, indicates that continuance of a criminal
proceeding after a compromise has been arrived at between the
complainant and the accused, would amount to abuse of the
process of court and an exercise in futility, since the trial
could be prolonged and ultimately, may conclude in a decision
which may be of any consequence to any of the other parties.
Even in Sushil Suri's case on which the learned Additional
Solicitor General had relied, the learned Judges who decided the
said case, took note of the decisions in various other cases,
where it had been reiterated that the exercise of inherent
powers would depend entirely on the facts and circumstances of
each case. In other words, not that there is any restriction on
the power or authority vested in the Supreme Court in exercising
powers under Article 142 of the Constitution, but that in
exercising such powers the Court has to be circumspect, and has
to exercise such power sparingly in the facts of each case.
Furthermore, the issue, which has been referred to a larger
Bench in Gian Singh's case (supra) in relation to the decisions
of this Court in B.S. Joshi's case, Nikhil Merchant's case, as
also Manoj Sharma's case, deal with a situation which is
different from that of the present case. While in the cases
referred to hereinabove, the main question was whether offences
which were not compoundable, under Section 320 Cr.P.C. could be
quashed under Section 482 Cr.P.C., in Gian Singh's case the
Court was of the view that a non-compoundable offence could not
be compounded and that the Courts should not try to take over
the function of the Parliament or executive. In fact, in none of
the cases referred to in Gian Singh's case, did this Court
permit compounding of non-compoundable offences. On the other
hand, upon taking various factors into consideration, including
the futility of continuing with the criminal proceedings, this
Court ultimately quashed the same.
18. In addition to the above, even with regard to the decision
of this Court in Central Bureau of Investigation v. Ravi Shankar
Prasad and Ors. : [(2009) 6 SCC 351], this Court observed that
the High Court can exercise power under Section 482 Cr.P.C. to
do real and substantial justice and to prevent abuse of the
process of Court when exceptional circumstances warranted the
exercise of such power. Once the circumstances in a given case
were held to be such as to attract the provisions of Article 142
or Articles 32 and 226 of the Constitution, it would be open to
the Supreme Court to exercise its extraordinary powers under
Article 142 of the Constitution to quash the proceedings, the
continuance whereof would only amount to abuse of the process of
Court. In the instant case the dispute between the petitioners
and the Banks having been compromised, we have to examine
whether the continuance of the criminal proceeding could turn
out to be an exercise in futility without anything positive
being ultimately achieved.
19. As was indicated in Harbhajan Singh's case (supra), the
pendency of a reference to a larger Bench, does not mean that
all other proceedings involving the same issue would remain
stayed till a decision was rendered in the reference. The
reference made in Gian Singh's case (supra) need not, therefore,
detain us. Till such time as the decisions cited at the Bar are
not modified or altered in any way, they continue to hold the
field.
20. In the present case, the fact situation is different from
that in Nikhil Merchant's case (supra). While in Nikhil
Merchant's case the accused had misrepresented the financial
status of the company in question in order to avail of credit
facilities to an extent to which the company was not entitled,
in the instant case, the allegation is that as part of a larger
conspiracy, property acquired on lease from a person who had no
title to the leased properties, was offered as collateral
security for loans obtained. Apart from the above, the actual
owner of the property has filed a criminal complaint against
Shri Kersi V. Mehta who had held himself out as the Attorney of
the owner and his family members. The ratio of the decisions in
B.S. Joshi's case and in Nikhil Merchant's case or for that
matter, even in Manoj Sharma's case, does not help the case of
the writ petitioners. In Nikhil Merchant's case, this Court had
in the facts of the case observed that the dispute involved had
overtures of a civil dispute with criminal facets. This is not
so in the instant case, where the emphasis is more on the
criminal intent of the Petitioners than on the civil aspect
involving the dues of the Bank in respect of which a compromise
was worked out."
The Court distinguished B.S. Joshi1 and Nikhil Merchant2 by observing
that those cases dealt with different fact situation.
41. In Rajiv Saxena and others v. State (NCT of Delhi) and
another[35], this Court allowed the quashment of criminal case under
Sections 498-A and 496 read with Section 34 IPC by a brief order. It was
observed that since the parties had settled their disputes and the
complainant agreed that the criminal proceedings need not be continued,
the criminal proceedings could be quashed.
42. In a very recent judgment decided by this Court in the month of
July, 2012 in Jayrajsinh Digvijaysinh Rana v. State of Gujarat and
another[36], this Court was again concerned with the question of quashment
of an FIR alleging offences punishable under Sections 467, 468, 471, 420
and 120-B IPC. The High Court refused to quash the criminal case under
Section 482 of the Code. The question for consideration was that inasmuch
as all those offences, except Section 420 IPC, were non-compoundable
offences under Section 320 of the Code, whether it would be possible to
quash the FIR by the High Court under Section 482 of the Code or by this
Court under Article 136 of the Constitution of India. The Bench
elaborately considered the decision of this Court in Shiji alias Pappu33
and by invoking Article 142 of the Constitution quashed the criminal
proceedings. It was held as under:-
"10. In the light of the principles mentioned above, inasmuch as
Respondent No. 2 - the Complainant has filed an affidavit
highlighting the stand taken by the Appellant (Accused No. 3)
during the pendency of the appeal before this Court and the
terms of settlement as stated in the said affidavit, by applying
the same analogy and in order to do complete justice under
Article 142 of the Constitution, we accept the terms of
settlement insofar as the Appellant herein (Accused No. 3) is
concerned.
11. In view of the same, we quash and set aside the impugned
FIR No. 45/2011 registered with Sanand Police Station, Ahmedabad
for offences punishable Under Sections 467, 468, 471, 420 and
120-B of IPC insofar as the Appellant (Accused No. 3) is
concerned. The appeal is allowed to the extent mentioned
above".
43. In Y. Suresh Babu v. State of
1987, this Court allowed the compounding of an offence under Section 326
IPC even though such compounding was not permitted by Section 320 of the
Code. However, in Ram Lal and Anr. v. State of J & K[38] , this Court
observed that Y. Suresh Babu37 was per incuriam. It was held that an
offence which law declares to be non-compoundable cannot be compounded at
all even with the permission of the Court.
44. Having surveyed the decisions of this Court which throw light
on the question raised before us, two decisions, one given by the
and Haryana High Court and the other by Bombay High Court deserve to be
noticed.
45. A five-Judge Bench of the Punjab and Haryana High Court in
Kulwinder Singh and others v. State of Punjab and another[39] was called
upon to determine, inter alia, the question 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. The five-Judge Bench referred to quite a few decisions of
this Court including the decisions in Madhu Limaye12 , Bhajan Lal30 , L.
Muniswamy11 , Simrikhia14, B.S. Joshi1 and Ram Lal38 and framed the
following guidelines:
"a. Cases arising from matrimonial discord, even if other
offences are introduced for aggravation of the case.
b. Cases pertaining to property disputes between close
relations, which are predominantly civil in nature and they have
a genuine or belaboured dimension of criminal liability.
Notwithstanding a touch of criminal liability, the settlement
would bring lasting peace and harmony to larger number of
people.
c. Cases of dispute between old partners or business concerns
with dealings over a long period which are predominantly civil
and are given or acquire a criminal dimension but the parties
are essentially seeking a redressal of their financial or
commercial claim.
d. Minor offences as under Section 279, IPC may be permitted to
be compounded on the basis of legitimate settlement between the
parties. Yet another offence which remains non- compoundable is
Section 506 (II), IPC, which is punishable with 7 years
imprisonment. It is the judicial experience that an offence
under Section 506 IPC in most cases is based on the oral
declaration with different shades of intention. Another set of
offences, which ought to be liberally compounded, are Sections
147 and 148, IPC, more particularly where other offences are
compoundable. It may be added here that the State of
Pradesh
Sections 506(II) IPC, 147 IPC and 148, IPC compoundable
offences by amending the schedule under Section 320, Cr.P.C.
e. The offences against human body other than murder and
culpable homicide where the victim dies in the course of
transaction would fall in the category where compounding may not
be permitted. Heinous offences like highway robbery, dacoity or
a case involving clear-cut allegations of rape should also fall
in the prohibited category. Offences committed by Public
Servants purporting to act in that capacity as also offences
against public servant while the victims are acting in the
discharge of their duty must remain non-compoundable. Offences
against the State enshrined in Chapter-VII (relating to army,
navy and air force) must remain non-compoundable.
f. That as a broad guideline the offences against human body
other than murder and culpable homicide may be permitted to be
compounded when the court is in the position to record a finding
that the settlement between the parties is voluntary and fair.
While parting with this part, it appears necessary to add that
the settlement or compromise must satisfy the conscience of the
court. The settlement must be just and fair besides being free
from the undue pressure, the court must examine the cases of
weaker and vulnerable victims with necessary caution."
To conclude, it can safely be said that there can never be any
hard and fast category which can be prescribed to enable the
Court to exercise its power under Section 482 of the Cr.P.C. The
only principle that can be laid down is the one which has been
incorporated in the Section itself, i.e., "to prevent abuse of
the process of any Court" or "to secure the ends of justice".
It was further held as under :
"23. No embargo, be in the shape of Section 320(9) of the
Cr.P.C., or any other such curtailment, can whittle down the
power under Section 482 of the Cr.P.C.
25. The only inevitable conclusion from the above discussion is
that there is no statutory bar under the Cr.P.C. which can
affect the inherent power of this Court under Section 482.
Further, the same cannot be limited to matrimonial cases alone
and the Court has the wide power to quash the proceedings even
in non-compoundable offences notwithstanding the bar under
Section 320 of the Cr.P.C., in order to prevent the abuse of law
and to secure the ends of justice. The power under Section 482
of the Cr.P.C. is to be exercised ex-debito Justitiae to prevent
an abuse of process of Court. There can neither be an exhaustive
list nor the defined para-meters to enable a High Court to
invoke or exercise its inherent powers. It will always depend
upon the facts and circumstances of each case. The power under
Section 482 of the Cr.P.C. has no limits. However, the High
Court will exercise it sparingly and with utmost care and
caution. The exercise of power has to be with circumspection and
restraint. The Court is a vital and an extra-ordinary effective
instrument to maintain and control social order. The Courts play
role of paramount importance in achieving peace, harmony and
ever-lasting congeniality in society. Resolution of a dispute by
way of a compromise between two warring groups, therefore,
should attract the immediate and prompt attention of a Court
which should endeavour to give full effect to the same unless
such compromise is abhorrent to lawful composition of the
society or would promote savagery."
46. A three-Judge Bench of the Bombay High Court in Abasaheb Yadav
Honmane v. State of Maharashtra[40] dealt with the inherent power of the
High Court under Section 482 of the Code vis-à-vis the express bar for
compounding of the non-compoundable offences in Section 320(9) of the Code.
The High Court referred to various decisions of this Court and also the
decisions of the various High Courts and then stated as follows :
"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 inter-
changeable 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
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."
47. 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 of the 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.
48. 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 not compoundable under Section 320 of the Code.
49. 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 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.
50. 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.
51. 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.
52. 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.
53. 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.
54. 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 IPC 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.
55. B.S. Joshi1, Nikhil Merchant2, Manoj Sharma3 and Shiji alias
Pappu33 do illustrate the principle that High Court may quash criminal
proceedings or FIR or complaint in exercise of its inherent power under
Section 482 of the Code and Section 320 does not limit or affect the powers
of the High Court under Section 482. Can it be said that by quashing
criminal proceedings in B.S. Joshi1, Nikhil Merchant2, Manoj Sharma3 and
Shiji alias Pappu33, this Court has compounded the non-compoundable
offences indirectly? We do not think so. There does exist the distinction
between compounding of an offence under Section 320 and quashing of a
criminal case by the High Court in exercise of inherent power under Section
482. The two powers are distinct and different although ultimate
consequence may be same viz., acquittal of the accused or dismissal of
indictment.
56. We find no incongruity in the above principle of law and the
decisions of this Court in Simrikhia14, Dharampal15, Arun Shankar
Shukla16, Ishwar Singh23, Rumi Dhar (Smt.).28 and Ashok Sadarangani34. The
principle propounded in Simrikhia14 that the inherent jurisdiction of the
High Court cannot be invoked to override express bar provided in law is by
now well settled. In Dharampal15, the Court observed the same thing that
the inherent powers under Section 482 of the Code cannot be utilized for
exercising powers which are expressly barred by the Code. Similar
statement of law is made in Arun Shankar Shukla16. In Ishwar Singh23, the
accused was alleged to have committed an offence punishable under Section
307, IPC and with reference to Section 320 of the Code, it was held that
the offence punishable under Section 307 IPC was not compoundable offence
and there was express bar in Section 320 that no offence shall be
compounded if it is not compoundable under the Code. In Rumi Dhar (Smt.)28
although the accused had paid the entire due amount as per the settlement
with the bank in the matter of recovery before the Debts Recovery Tribunal,
the accused was being proceeded with for commission of offences under
Section 120-B/420/467/468/471 of the IPC along with the bank officers who
were being prosecuted under Section 13(2) read with 13(1)(d) of Prevention
of Corruption Act. The Court refused to quash the charge against the
accused by holding that the Court would not quash a case involving a crime
against the society when a prima facie case has been made out against the
accused for framing the charge. Ashok Sadarangani34 was again a case where
the accused persons were charged of having committed offences under
Sections 120-B, 465, 467, 468 and 471, IPC and the allegations were that
the accused secured the credit facilities by submitting forged property
documents as collaterals and utilized such facilities in a dishonest and
fraudulent manner by opening letters of credit in respect of foreign
supplies of goods, without actually bringing any goods but inducing the
bank to negotiate the letters of credit in favour of foreign suppliers and
also by misusing the cash-credit facility. The Court was alive to the
reference made in one of the present matters and also the decisions in B.S.
Joshi1, Nikhil Merchant2 and Manoj Sharma3 and it was held that B.S.
Joshi1, and Nikhil Merchant2 dealt with different factual situation as the
dispute involved had overtures of a civil dispute but the case under
consideration in Ashok Sadarangani34 was more on the criminal intent than
on a civil aspect. The decision in Ashok Sadarangani34 supports the view
that the criminal matters involving overtures of a civil dispute stand on a
different footing.
57. The position that emerges from the above discussion can be
summarised thus: 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 the Code. 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. 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 flavour
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.
58. In view of the above, it cannot be said that B.S. Joshi1,
Nikhil Merchant2 and Manoj Sharma3 were not correctly decided. We answer
the reference accordingly. Let these matters be now listed before the
concerned Bench(es).
.........................J.
(R.M. Lodha)
.........................J.
(Anil R. Dave)
...........................................
.J. (Sudhansu Jyoti Mukhopadhaya)
SEPTEMBER 24, 2012.
ITEM NO.1A COURT NO.7 SECTION IIB
FOR JUDGMENT
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl) No(s).8989/2010
(From the judgement and order dated 17/09/2010 in CRM No.27367/2010 of The
HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH)
GIAN SINGH Petitioner(s)
VERSUS
STATE OF PUNJAB & ANR. Respondent(s)
WITH
SLP(Crl) No.6138/2006
SLP(Crl) No.5203/2011
SLP(Crl) No.259/2011
SLP(Crl) No.5921/2009
SLP(Crl) No.7148/2009
SLP(Crl) No.6324/2009
CRIMINAL APPEAL NOS. 2107-2125/2011
Date: 24/09/2012 These Petitions and Criminal Appeal were
called on for Judgment today.
For Petitioner(s) Mr. P.P. Malhotra, A.S.G.
Mr. Arvind Kumar Sharma, Adv.
M/S.
Mr. Bijoy Kumar Jain, Adv.
Mr. P. Parmeswaran, Adv.
Mr. B.K.Satija, Adv.
Ms. Pragati Neekhra, Adv.
For Respondent(s) Mr. P.P. Malhotra, A.S.G.
Mr. Arvind Kumar Sharma, Adv.
Mr. A.V. Rangam, Adv.
Mr. Buddy A. Ranganadhan, Adv.
Ms. Richa Bhardwaj, Adv.
Mr. K.N. Rai, Adv.
Mr. B.K.Satija, Adv.
Ms. Pragati Neekhra, Adv.
Mr. R.Chandrachud, Adv.
Mr. Nikhil Jain, Adv.
Mr. Sunil Kumar Verma, Adv.
Mr. Pawan Kumar, Adv.
Dr. Kailash Chand, Adv.
Mr. Arvind Kumar Sharma, Adv.
Mr. Bijoy Kumar Jain, Adv.
Ms. Asha Gopalan Nair, Adv.
Mr. Atishi Dipankar, Adv.
Mr. Yash Pal Dhingra, Adv.
Mr. Partha Sil, Adv.
Mr. Praveen Swarup, Adv.
Mr. Anil Kumar Bakshi, Adv.
Mr. Sheel Kumar, Adv.
Mr. Ravi Bassi, Adv.
Hon'ble Mr. Justice R.M. Lodha pronounced the Judgment for the Bench
comprising His Lordship, Hon'ble Mr. Justice Anil R. Dave and
Hon'ble Mr. Justice Sudhansu Jyoti Mukhopadhaya.
The reference is answered in terms of the reportable Judgment.
Let these matters be now listed before the concerned Bench(es).
(Rajesh Dham) (Renu Diwan)
Court Master Court Master
(signed reportable Judgment is placed on the file)
-----------------------
[1] (2003) 4 SCC 675
[2] (2008) 9 SCC 677
[3] (2008) 16 SCC 1
[4] (2011) 6 SCC 216
[5] (2009) 11 SCC 424
[6] (1945) 47 Bom. L.R. 245
[7] AIR 1959 SC 542
[8] AIR 1945 PC 94
[9] AIR 1964 SC 703
[10] 1966 (Suppl) SCR 477
[11] (1977) 2 SCC 699
[12] (1977) 4 SCC 551
[13] (1980) 1 SCC 43
[14] (1990) 2 SCC 437
[15] 1993 Crl. L.J. 1049
[16] AIR 1999 SC 2554
[17] (2000) 2 SCC 636
[18] (2002) 3 SCC 89
[19] (2009) 6 SCC 351
[20] (2009) 7 SCC 495
[21] (2011) 5 SCC 708
[22] (2008) 4 SCC 582
[23] (2008) 15 SCC 667
[24] (2006) 9 SCC 255
[25] (2001) 10 SCC 504
[26] (2008) 15 SCC 671
[27] 1990 (supp) SCC 681
[28] (2009) 6 SCC 364
[29] (1996) 5 SCC 591
[30] 1992 Supp (1) SCC 335
[31] 1992 Supp (1) SCC 222
[32] (1992) 4 SCC 305
[33] (2011) 10 SCC 705
[34] JT 2012 (3) SC 469
[35] (2012) 5 SCC 627
[36] JT 2012 (6) SC 504
[37] (2005) 1 SCC 347
[38] (1999 2 SCC 213
[39] (2007) 4 CTC 769
[40] 2008 (2) Mh.L.J.856
-----------------------
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