IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.988/2011 Between:
1. J.Madhu Varma, S/o.Mohan Kumar, Aged about 30 years, R/a No.32, G.M.Palya, Hosa Thippasandra Post, Bangalore-560075.
2. R.Gopi, S/o.R.Rama Reddy, Aged about 41 years, R/a No.117, Near Srinivasa Talkies, Marath Halli, Bangalore.
3. Mohanraj, S/o.Kannayyan, Aged 39 years, R/a No.430, 2nd Main, HAL II Stage, Indira Nagar, Bangalore-560038. ... Petitioners (By Sri.P.B.Raju, Advocate) And:
State of Karnataka by the Police of Jeevan Bhima Nagar P.S, Bangalore City. ... Respondent (By Sri.M.Divakar Maddur, HCGP) This Crl.RP is filed u/s.397 r/w 401 of Cr.P.C., praying to set aside the order dated:15.7.2011 passed by the II Addl. City Civil and Sessions Judge and Spl. Judge, Bangalore in Spl.C.C.No.26/08.
This Crl.RP is coming on for Orders, this day, the Court made the following:
ORDER Petitioners/accused Nos.1 and 2 are present before this Court along with their counsel. Accused No.3 is absent, however, he has given special power of attorney in favour of accused No.1 to compound the offence. The first complainant - Smt. Jayamma W/o Sri.H.D.Kailaskumar, Sri.Vijaya Keerthi and Sri. H.B. Mudduraju are also present. The learned High Court Government Pleader is also present. They have been identified by the Investigating Officer on the last occasion before this Court and today, the learned High Court Government Pleader has also identified them. Today, they have filed a joint petition under Section 482 of Cr.P.C. stating that there was a civil litigation pending between the parties in O.S.No.16430/2005 on the file of the Principal City Civil and Sessions Judge, Bengaluru and the present complaint is an off shoot of the civil litigation. It is further stated that they have entered into a settlement before the Mediation and the memorandum of settlement under Section 89 read with Rules 24 and 25 of the Karnataka Civil Procedure (Mediation) Rules, 2007 has been entered. The said settlement has also been signed by both the complainants as well as the accused for having entered into compromise.
2. The respondents/complainants who are present before the Court submits voluntarily that they have compromised the matter between the petitioners/accused Nos.1 to 3 and they are not having any objection to set aside the impugned order of conviction and acquit the accused. The said joint memo is also signed by the complainants as well as the petitioners-accused Nos.1 to 3 and the same has also been endorsed by the learned counsel for the petitioners/accused. The records discloses that the petitioners/accused herein have filed an application under Section 227 of the Cr.P.C., to discharge them for the charges leveled against them for the offences punishable under Section 3(2)(v)(x) and (xi) of SC/ST Act and also under Section 506 of IPC. The said application came to be dismissed by the learned II Additional City Civil and Sessions Judge, Bengaluru by its order dated 15.07.2011. Challenging the same, the petitioners/accused are before this Court. Now the matter was referred mediation and it has been amicably settled even before the Mediation. Even today, the petitioners/accused as well as the complainants are present and they have filed a joint memo dated 17.12.2018 for compounding the offences. At this juncture, it is worth to mention here itself a decision of the Hon’ble Apex Court in the case of J.Ramesh Kamath and Others Vs. Mohana Kurupt and Others, reported in (2016) 12 SCC 179, wherein the Hon’ble Apex Court has laid down certain principles as to under what circumstances the Court can quash the proceedings or compound the offences even in respect of a non-compoundable offences, wherein it has been held as under:-
“Held, power vested in High Court under S.482 is not limited to quashing proceedings within ambit and scope of S.320 of Cr.P.C., - In Gian Singh, (2012) 10 SCC 303, it was clearly expounded that quashing of criminal proceedings under S.482 of Cr.P.C., could also be based on settlements between private parties, and could also be on a compromise between the offender and victim – Only that, the above power did not extend to crimes against the society – Further, jurisdiction vested in High Court under S.482 Cr.P.C., for quashing criminal proceedings was held to be exercisable in criminal cases having an overwhelming and predominatingly civil flavour, particular offences arising from commercial, financial, mercantile, civil, partnership, or such like transactions, or even offences arising out of matrimony relating to dowry, etc., or family disputes where wrong is basically private or personal. In all such cases, parties should have resolved their entire dispute by themselves, mutually.”
3. The Hon’ble Apex Court has reiterated the principles of law laid down in the case of Gian Singh Vs. State of Punjab and another reported in (2012) 10 SCC 303, wherein it has been observed that the Court can exercise the power under Section 482 of Cr.P.C. depending upon the facts and circumstances of each case and compound the offence. In the case of Narinder Singh and others Vs. State of Punjab and another reported in (2014) 6 SCC 466, it has been observed as under:
“8. We find that there are cases where the power of the High Court under Section 482 of the Code to quash the proceedings in those offences which are uncompoundable has been recognized. The only difference is that under Section 320(1) of the Code, no permission is required from the Court in those cases which are compoundable though the Court has discretionary power to refuse to compound the offence. However, compounding under Section 320(1) of the Code is permissible only in minor offences or in non-serious offences. Likewise, when the parties reach settlement in respect of offences enumerated in Section 320(2) of the Code, compounding is permissible but it requires the approval of the Court. Insofar as serious offences are concerned, quashing of criminal proceedings upon compromise is within the discretionary powers of the High Court. In such cases, the power is exercised under Section 482 of the Code and proceedings are quashed. Contours of these powers were described by this Court in B.S.Joshi v. State of Haryana which has been followed and further explained/elaborated in so many cases thereafter, which are taken note of in the discussion that follows hereinafter.
9. At the same time, one has to keep in mind the subtle distinction between the power of compounding of offences given to the Court under Section 320 of the Code and quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction conferred upon it under Section 482 of the Code. Once it is found that compounding is permissible only if a particular offence is covered by the provisions of Section 320 of the Code and the Court in such cases is guided solitarily and squarely by the compromise between the parties, insofar as power of quashing under Section 482of the Code is concerned, it 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. Such a distinction is lucidly explained by a three-Judge Bench of this Court in Gian Singh v. State of Punjab. Lodha, J. speaking for the Court, explained the difference between the two provisions in the following manner: (SCC pp.340-41, paras 57 & 59).
“57. Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment.
59. B.S.Joshi, Nikhil Merchant, Manoj Sharma and Shiji do illustrate the principle that the 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.Joshi, Nikhil Merchant, Manoj Sharma and Shiji 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 the ultimate consequence may be the same viz. acquittal of the accused or dismissal of indictment.”
10. Apart from narrating the interplay of Section 320 and Section 482 of the Code in the manner aforesaid, the Court in Gian Singh case also described the extent of power under Section 482 of the Code in quashing the criminal proceedings in those cases where the parties had settled the matter although the offences are not compoundable. In the first instance it was emphasized that the power under Section 482 of the Code is not to be resorted to, if there is specific provision in the Code for redressal of the grievance of an aggrieved party. It should be exercised very sparingly and should not be exercised as against the express bar of law engrafted in any other provision of the Code. The Court also highlighted that 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.
11. As to under what circumstances the criminal proceedings in a non- compoundable case be quashed when there is a settlement between the parties, the Court provided the following guidelines: (Gian Singh case, SCC pp.340-41. para 58) “58. Where the High Court quashes a criminal proceeding having regard to the facts that the dispute between the offender and the victim has been settled although the offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrongdoing that seriously endangers and threatens the well-being of the society and it is not safe to leave the crime-doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without the permission of the court. In respect of serious offences like murder, rape, dacoity, etc. or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between the offender and the victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to the victim and the offender and the victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or FIR if it is satisfied that on the face of such settlement, there is hardly any likelihood of the offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard-and-fast category can be prescribed.”
12. Thereafter, the Court summed up the legal position in the following words: (Gian Singh case, SCC pp.342-43, para 61) “61. The position that emerges from the above discussion can be summarized thus: the power of the High Court in quashing a criminal proceeding or FIR or a 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 plentitude with no statutory limitation but it has to be exercised in accord with the guidelines 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 FIR may be exercised where the offender and the 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 a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the 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 predominatingly civil flavour stand on a 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, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the 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 or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.”
The Court in Gian Singh case was categorical that in respect of serious offences or other offences of mental depravity or offence of merely dacoity under special statute, like the Prevention of Corruption Act or the offences committed by Public Servant while working in that capacity. The mere settlement between the parties would not be a ground to quash the proceedings by the High Court and inasmuch as settlement of such heinous crime cannot have imprimatur of the Court.”
4. Bearing in mind the above facts and circumstances and on perusal of the charge sheet material, though the offences are punishable under Section 3(2)(v)(x) and (xi) of SC/ST Act and also under Section 506 of IPC, the said offences are non- compoundable in nature. But as could be seen from the records, the parties have compromised the matter amicably. Therefore, in my opinion, if the said compromise is allowed by keeping in view the above said decision endorsed, the parties can lead a cordial life hereinafter. The said alleged offences are not punishable with death or imprisonment for life and both the complainants and the accused are intending to join their hands and compound the offence and no injuries have also been caused to the body of the complainant. In the case of Gian Singh (supra), it has been observed that the High Court is having power under Section 482 of Cr.P.C. to weigh the material on record and take an appropriate decision in accordance with law depending upon the facts and circumstances of each case. Therefore, keeping in view the above said facts and circumstances, that this Court can exercise power under Section 482 of Cr.P.C., and permitted the parties to settle their disputes amicably as entered into.
5. With the above observation, the joint petition placed before this Court is taken on record and the present Criminal Revision Petition is allowed.
In view of the compounding of the offence by the parties, the proceedings initiated in PCR No.13/2006 and the proceedings in Special Criminal Case No.26/2008 for the offences punishable under Sections 3(2)(v)(x) and (xi) of SC/ST Act and Section 506 of IPC pending on the file of the learned II Additional City Civil and Sessions Judge, Bengaluru (CCH-17) are hereby quashed and petitioners/accused Nos.1 to 3 are acquitted of the charges leveled against them in view of the compromise entered between the parties.
Sd/- JUDGE NR/-