The appellants herein stand convicted by the learned Additional Sessions Judge (Fast Track Court), Ariyalur in S.C.No.6 of 2007, for the offences under Sections 427 IPC and 3(i) of the Tamil Nadu Public Property (Prevention of Damage and Loss) Act, 59 of 1992, and sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.5,000/- each, in default to undergo simple imprisonment for three months under Section 427 IPC and also to undergo rigorous imprisonment for three years and to pay a fine of Rs.3000/- each in default to under go simple imprisonment for six months under Section 3(1) of the Tamil Nadu Property (Prevention of Damage and Loss) Act. Aggrieved by the said conviction and sentence, the appellants have preferred this criminal appeal.
2. The brief facts of the prosecution case are as follows:-
PW-1 Ramalingam is residing in Chennivanam Village, Ariyalur Taluk. One Ramasamy is his neighbour. The accused 1 and 2 are brothers-in-law of the said Ramasamy. There was a civil dispute pending between PW-1 and his neighbour Ramasamy. Subsequently Ramasamy died due to his illness on 12.10.2004 at about 08.00pm. The accused entered into the house of P.W.1 and demolished the backside of the compound wall. The accused also abused PW-1 using filthy language. PW-1 preferred a complaint Ex.P-1. The Sub Inspector of Police, Sendurai Police Station, received complaint and registered the case in Cr.No. 228/04 under Sections 294(b), 427, 506(ii) and prepared the First Information Report Ex.P-5.
3. P.W.6, Sub Inspector of Police took up the investigation and proceeded to the spot and prepared the rough sketch Ex.P.6 and examined the witnesses. The accused were arrested on the same day on 13.10.2004 at 02.20 p.m., near Vellore Bus stand. Subsequently P.W.7 took up further investigation and completed the investigation and filed the final report.
4. To prove the case, the prosecution has examined 7 witnesses and marked 7 exhbits. When the accused were questioned under
Section 313 Cr.P.C., they denied their complicity. On the defence side, one witness was examined and two documents were marked.
5. The learned judge after considering the evidence and documents convicted the accused as stated above.
6. Mr.D.Veerasekaran, learned counsel appearing for the appellants submits that the whole occurrence was only due to the civil dispute and at the relevant time, there was a civil suit between Ramasamy, who is the brother-in-law of the accused and P.W.1. The occurrence had taken place on the death of the said Ramasamy. The whole occurrence was only due to civil dispute. Now the matter has been compromised between the parties. It was only a trivial incident which has been boosted up. The learned counsel for the appellants further submits that the defacto complainant is present before this Court and he had filed an affidavit stating that the matter has been compromised in the presence of the village elders, and therefore PW-1 seeks permission of this Court to compound evidence.
7. Mr.D.Veerasekaran, Learned counsel relied on the decisions of the Honourable Supreme Court in B.S. Joshi and others Vs State of Haryana and another reported in (2003) 4 SCC 675 and in Nikhil Merchant Vs Central Bureau of Investigation and another reported in (2008) 9 SCC 677.
8. Placing reliance on the above decisions, the learned counsel sought permission of this Court for compounding the offences and prayed for setting aside the conviction on the accused.
9. Mr.J.C.Durairaj, learned Government Advocate (Criminal side) submits that PW-1 has given evidence before the trial Court and his evidence is corroborated by the evidence of P.Ws.2 and 3. The Trial Court also after considering the evidence convicted the accused. The learned Government Advocate (Criminal side) further submits that though the matter has been compromised among the defacto complainant and the accused, the offences for which accused stand convicted are non-compoundable offences and the case also already ended in conviction, and therefore, it is not possible and proper to set aside the conviction at this stage.
10. This court considered the submissions made by both parties and perused the records and also the affidavit filed by the defacto complainant - PW-1.
11. It appears that the motive for the occurrence was only a civil dispute which was pending between the neighbours, i.e., P.W.1 and his neighbour Ramasamy. The accused 1 and 2 are relatives of the said Ramasamy. The occurrence had taken place on the date on which the said Ramasamy had died. Even according to the prosecution case, PW-1 was threatened and the newly constructed wall which was also the subject matter of the suit was demolished. Now, matter has been compromised and de facto complainant-PW-1 seeks permission of this Court for compounding the offences.
12. The question now arises for consideration is that whether in a case involving non-compoundable offences, whether the high court can permit the parties to compound the offence.
13. The Hon'ble Supreme Court in B.S.Joshi and others vs. State of Haryana and another reported in (2003) 4 SCC 675) has observed as follows:
"9. The High Court has also relied upon the decision in case of Surendra Nath Mohanty case (1999) 5 SCC 238 for the proposition that offence declared to be non compoundable cannot be compounded at all even with the permission of the Court. That is of course so. The offences which can be compounded are mentioned in Section 320. Those offences which are not mentioned therein cannot be permitted to be compounded. In Mohanty case the appellants were convicted by the trial court for offence under Section 307. the High court altered the conviction of the appellants and convicted them for offence under Section 326 and imposed sentence of six months. The trial court had sentenced the appellants for a period of five years' R1. The application for compounding was, however, dismissed by the High Court. This court holding that the offence for which the appellants had been convicted was non compoundable and, therefore, it could not be permitted to be compounded but considering that the parties had settled their dispute outside the court, the sentence was reduced to the period already undergone. It is however, to be borne in mind that in the present case the appellants had not sought compounding of the offences. They had approached the Court seeking quashing of FIR under the circumstances above stated.
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11.In Madhavrao Jiwajirao Scindia V. Sambhajirao Chandrojirao Angre (1988) 1 SCC 692), it was held that while exercising inherent power of quashing under Section 482, it is for the High Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. Where, in the opinion of the court, chances of an ultimate conviction are bleak and therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may, while taking into consideration the special facts of a case, also quash the proceedings.
12. The special features in such matrimonial matters are evident. It becomes the duty of the court to encourage genuine settlements of matrimonial disputes.
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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.
14. The Honourable Supreme Court in Nikhil Mechant vs. Central Bureau of Investigation and another reported in ((2008) 9 SCC 677) has observed as follows:
"25. It was urged that even if no steps have been taken by CBI since the charge-sheet was filed in 1998, the same would not be a ground for quashing the criminal proceedings once the charge-sheet had been filed. He submitted that in view of the decision of this Court in Supreme Court Bar Assn. V. Union of India this Court would possibly not be justified in giving directions in the instant case even under
Article 142 of the Constitution, since the Constitution Bench had held that in exercise of its plenary powers under
Article 142, this court could not ignore any substantive statutory provision dealing with the subject. It is a residuary power, supplementary and complementary to the powers specifically conferred on the Supreme Court by statues, exercisable to do complete justice between the parties where it is just and equitable to do so. It was further observed that the power under
Article 142 of the Constitution was vested in the Supreme Court to prevent any obstruction to the stream of justice.
26. The learned Additional Solicitor General submitted that the power under
Article 142 is to be exercised sparingly and only in rare and exceptional cases and in the absence of any exceptional circumstances the appeal was liable to be dismissed.
27.Having carefully considered the facts of the case and the submissions of leaned counsel in regard thereto, we are of the view that, although, technically there is force in the submissions made by the learned Additional Solicitor General, the facts of the case warrant interference in these proceedings.
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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 where under 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 the overall view of the facts as indicated herein above 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."
15. In view of the ratio laid down by the Honourable Supreme Court, it has to be held that even in case of non-compoundable offences, the High Court by exercising powers under
Section 482 of the Code of Criminal Procedure, in appropriate cases for the benefit of parties to meet the ends of justice, the proceedings may be quashed. The quashing of the proceedings is possible only when trial has not come to an end. But in this case, the case had ended in conviction. In such circumstances, it is not possible for this Court to permit the parties to compound the non compoundable offences after conviction. In view of the fact that the matter has been compromised between the parties and taking all other circumstances, though the conviction on the accused is confirmed, the sentence imposed on the accused may be modified.
16. The learned counsel for the appellants submitted that the accused have been already in jail for one week. The sentence of imprisonment imposed on the accused for both the offences under
Section 427 IPC and
Section 3(i) of the Public Property (Prevention of Damage and Loss) Act, is reduced to the period already undergone.
17. Considering this submission made by the learned counsel for the appellant that the appellants are poor persons, the fine imposed on them is set aside and the fine amount already paid is directed to be refunded.
18. In the result, the appeal is partly allowed.
trp/ksr