Compromise by itself is not sufficient to set aside the order of conviction for a non-compoundable offence.

JUDGMENT :

A.S. CHANDURKAR, J.

1. The contentious issue as regards the scope of power exercisable under Section 482 of the Code of Criminal Procedure, 1973 (for short, ‘the Code’) when a prayer is made for quashing criminal proceedings/conviction at the instance of a convict after his conviction for a non-compoundable offence on account of settlement between the convict and the victim/complainant falls for determination before this larger bench.

Decisions leading to the reference:-

2. At the outset we may refer to the decisions that have led to making of the present reference.

In Criminal Application No.0382 of 2018 (Udhav Kisanrao Ghodse Vs. State of Maharashtra) the accused were tried for having committed offence punishable under Section 323 of the Indian Penal Code (for short, ‘the Penal Code’). In addition the accused no.1 was convicted for committing offence punishable under Sections 447 and 354 of the Penal Code. The order of conviction was challenged before the Sessions Court by preferring an appeal. During the pendency of the appeal, the accused and the informant arrived at a compromise and the said parties approached this Court under Section 482 of the Code especially in the backdrop of the fact that the offence under Section 354 of the Penal Code was non-compoundable. The Division Bench at Aurangabad, after referring to the decision of the Full Bench in Abasaheb Yadav Honmane Vs. State of Maharashtra 2008 (2) Mh.L.J.856 as well as decision in Gian Singh Vs. State of Punjab and anr. (2002) 10 SCC 303, vide its judgment dated 26.02.2018 proceeded to hold that since the parties had decided to maintain good and cordial relations in future and such thought was necessary for the society, inherent powers under Section 482 of the Code were required to be invoked. Accordingly the informant was permitted to compound all the offences including the one under Section 354 of the Penal Code. Consequently the judgment of conviction recorded by the learned Magistrate was set aside.

In Criminal Application (APL) No.750/2019 (Ajmatkhan S/o. Rahematkhan, & Anr. Vs. State of Maharashtra) the accused had been convicted by the learned Magistrate for the offence punishable under Sections 354 and 452 of the Penal Code. The appeal preferred by the convicts came to be dismissed by the Sessions Court. Thereafter the convicts and the informant approached this Court under Section 482 of the Code and by relying upon the decision in Udhav K. Ghodse (supra) sought quashing of the entire proceedings. The Division Bench at Nagpur by its order dated 06.08.2019 relying upon the said judgment and finding such approach necessary for the society permitted the informant to compound the offence punishable under Sections 354 and 452 of the Penal Code. The judgment of conviction passed by the learned Magistrate as well as the judgment of the Sessions Court in appeal came to be set aside and the convicts were acquitted of all the offences.

Thereafter in Criminal Application (APL) No.1028/2019 (Shivaji Haribhau Jawanjal Vs. State of Maharashtra) an accused who was prosecuted for the offences punishable under Sections 323, 354, 452 and 506 of the Penal Code came to be convicted by the learned Magistrate. The conviction was maintained by the Sessions Court in the appeal. A revision application challenging the order of conviction was preferred by the convict and was pending before the learned Single Judge. The convict and the complainant then approached this Court jointly under Section 482 of the Code on the ground that they had arrived at a settlement and with a view to maintain cordial relations they sought invocation of jurisdiction of this Court. The Division Bench at Nagpur by its judgment dated 12.02.2020 after referring to the judgment of the Division Bench in Kiran Tulshiram Ingale vs. Anupama P. Gaikwad and Ors. 2006 (2) Mh.L.J.(Cri) 402 held that the power under Section 482 of the Code for quashing the proceedings could be exercised even after conviction of an a