2007 Supreme(Raj) 1518
RAJASTHAN HIGH COURT
R.S.Chauhan, J.
Majlis & Ors. - Appellants
Versus
State of Raj. & Ors. - Respondents
S.B. Cr. Misc Petition No. 350, 1474, 1496, 1628 and 29 of 2005/2006.
Decided On : 12-01-2007
For the Petitioner:Mr. S.R. Bajwa, Sr. Advocate with Mr. Vivek Bajwa, Mr. Biri Singh Sinsinwar, Mr. S. K. Gupta, Mr. Samander Singh, Mr. Ravi Yadav, Mr. Bipin Gupta, Mr. Akhil Simolote, Mr. H.P. Verma, Mr. Rajneesh Gupta, Mr. V.S. Chauhan, Advocates.
For the State: Mr. Arun Sharma, Public Prosecutor.
For the Respondent: Mr. Anshuman Saxena assisting the Court.
Headnote:
(a) Criminal Procedure Code, 1973 – S. 320 and 482 – Compromise in non – compoundable offences – Sec.482 quashing power – cases not compoundable u/s.320 – despite clear bar can such power be invoked? – held, High Court can invoke sec.482 inherent power notwithstanding such bar – thus quashing a criminal proceeding if parties compromise – compounding and quashing based on compromise – explained.
(b) Criminal Procedure Code, 1973 – S. 320(9) and 482 – Indian Penal Code, 1860 – S. 420, 467, 466, 471 and 120B – parties compromise – trial court rejects compounding application stating such offence non – compoundable u/s.320(9) CrPC – since parties compromised – quashes criminal proceedings - Indian Penal Code, 1860 – S. 323, 326 and 341 – Parties compromised during appeal pendency – compounding permitted by appellate court u/s.323 but not u/s.326 – quashing application undecided – considering parties are of same village and having compromised – no reason to withhold – application to be decided within 2 weeks by lower appellate court - Indian Penal Code, 1860 – S. 143, 323, 341 and 326 – Quashing of FIR – Joint family brawl – FIR lodged – investigation underway – parties compromised – police refuse closing investigation – held, when family members compromised no purpose continuing trial – FIR quashed. - Criminal Procedure Code, 1973 – S. 320 – Indian Penal Code, 1860 – S. 323, 324, 336, 341 and 458 – Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989 – S. 3(1)(10) and 3(2)(5) – Application by parties under – S. 320, Criminal Procedure Code – Offences u/s. 323, 341 IPC compounded by Trial court – refused on other offences – respondents no. 2 and 3 police officers – petition by the victim – held, petition presumed under pressure from respondents 2 and 3 – no evident possibility witness influenced by accused for quashing petition – trial court directs to ensure witness protection during trial.
JUDGMENT
1. - Whether to quash a criminal proceeding on the ground of a compromise struck between the accused and the complainant/victim or not is the legal issue before this Court. Some times, this Court has quashed the proceedings on the ground of such compromise. Other times, this Court and the Apex Court have refused to do so on the ground that the offence in non-compoundable under Section 320 of the Code of Criminal Procedure (henceforth to be referred to as 'the Code', for short). While hearing the arguments in the above cases the counsels for the petitioners relied on the case of (1) Abdul Nadim & Anr. Vs. State of Rajasthan & Ors.(2001 (1) RCC 387) , and on (2) Banwari & Ors.Vs. State of Rajasthan (2002 (2) RCC 754) to buttress their contention that even in the case of offense falling under Section 308 or under Section 326 Indian Penal Code, this Court has quashed the trial on the ground of compromise between the parties. Similarly they have relied on the case of (3) B.S. Joshi and Ors.Vs. State of Haryana and Anr. ((2003) 4 SCC 675) to show that even the Apex Court had quashed the criminal proceeding for offence under Section 498-A and 406 Indian Penal Code, although the offenses were non-compoundable under Section 320 of the Code. On the other hand, the learned Public Prosecutor has relied on the case of (4) Mohan Singh and Ors.Vs. State of Rajasthan 1992 (1) RLR 1 = 1993 Cri. L.J. 3193) , a Full Bench decision of this Court and on the case of (5) Bankat and Anr. V. State of Maharashtra ((2005) 1 SCC 343) to argue that a case cannot be compounded when the offense is not covered under Section 320 of the Code. Since the contentions were equally weighty, since the case law was equally divided, it was felt necessary to invite the learned members of the Bar to assist the Court in deciding the following legal issues:-
1. While Section 320 of the Code permits "compounding of cases", many of the courts are quashing the criminal trials on the ground of compromise reached between the parties. What is the difference between the Compounding and the quashing of cases on the basis of compromise?
2. Can the power under Section 482 of the Code be invoked to quash a trial in those cases which are not covered by Section 320 of the Code?
3. What is the scope of this inherent power?
4. Can such a power be invoked despite the clear ban on the use of power to compound the case?
5. What guidelines should be laid down for the exercise of this power?
2. Without first entering into the factual matrix of the individual cases, initially this Court will deal with the respective contentions of the parties, it would then discuss the legal issues, and subsequently deal with the individual petitions.
3. Mr. S.R. Bajwa, Senior Advocate, has raised plethora of contentions before this Court; firstly, a distinction has to be made between compromising of a case, compounding of a case and withdrawal of a case. Secondly, Section 320 of the Code bestows a limited power on the court to compound the offences enumerated therein. Section 482 of the Code, on the other hand, does not confer a new power, but merely saves the inherent power which the court possessed before the enactment of the Code. Thus, the power under Section 482 is vast, is unlimited although a guided one. The section begins with a non-obstante clause, it unequivocally proclaims that "Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court..." Hence, the bar contained in Section 320(9) of the Code does not hamper the power of the Court to quash a criminal proceeding on the ground of parties having compromised. Thirdly, the cardinal function of the court is to do substantial justice between the parties. In case the parties have compromised between themselves, the continuation of the trial would be a futile exercise. In fact, it would have two adverse consequences, Firstly, the witnesses would be motivated to change their stand before the trial court, they
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