Author: Sparsh Gupta
Introduction
In general, Section 482 Cr.P.C provides for quashing the F.I.R, a criminal proceeding or a complaint, by the High Court and it is not to be baffled with the power vested in a criminal court under Section 320 Cr.P.C.
Section 482 Cr .P.C provides that 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 and Section 320 Cr PC provides the list of certain offences punishable under the sections of IPC specified in first two columns of the table which may be compounded by the persons mentioned in third column of that table .
An encapsulation of the provisions of Section 482 Cr P C explains that a High Court vests with the power to quash the FIR, a criminal proceeding or a complaint by taking note of the fact that the offender and the victim have settled their disputes amongst themselves even if such offences did not fall in the list of compoundable offences. It is also commentated by the courts all over the country that the continuity of such cases, which have already been resolved between the parties shall be nothing but an exercise in futility and it shall be required by the courts that disputes between parties are put to an end in the interest of justice and peace is restored as was held by the Hon’ble Supreme Court of India in the case of Gian Singh Vs State of Punjab.[1]
The aforesaid decision of Hon’ble Supreme Court gave birth to a query whether Section 320 Cr.P.C would act as an impediment before quashing powers of High Court u/s 482 Cr.P.C as what is the purpose of having the offences being segregated into compoundable and non compoundable when FIR/ complaints pertaining to offences of both the categories are quashed? The query already stood resolved and comprehended in detail by the Hon’ble Supreme Court of India in the case of ‘B S Joshi and others Vs State of Haryana and others’[2], whereby the criminal proceedings between husband and wife were quashed by a joint request of amicable settlement and the Hon’ble Supreme Court held as under :
‘.. for the purpose of securing the ends of justice, quashing of FIR becomes necessary , Section 320 would not be a bar to the exercise of power of quashing it…’
Evolution of Sec 482
It was further observed by the Court in the B S Joshi case (supra) that there was no chance of conviction when the complainant was not likely to support the prosecution as she had already resolved disputes with her husband. The similar analogy was drawn in a number of cases, wherein the court was convinced that the prosecution lost their pillar of support from complainant and there was no point in taking the prosecution further. Some of the cases are referred to as under :
- Prem Chand Sharma and others v. State of Punjab and another[3]
- Gopakur B Nair v. Central Bureau of Investigation and another[4]
- Shri B S Yeddyurappa v. Anti- Corruption Bureau[5]
- Parveen Oberoi and others v. State and another[6]
- Sarwan Lal v. State of Punjab and another[7]
From the aforesaid decisions, the law appears to be well settled that wherever chances of conviction are bleak and no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may after taking into consideration the special facts of the case, can quash the proceedings u/s 482 Cr.P.C whether it is compoundable or non compoundable.
To understand more about compoundability of offences, it is necessary to understand the background of Section 320 Cr.P.C. An analysis of Section 320 Cr P C reveals that as a result of compounding of offences under Section 320, the accused will be acquitted of offence and the court shall lose its jurisdiction to proceed with the case. In the case of ‘Ramgopal Vs State of MP’ [8], it was noted by the Hon’ble Supreme Court of India that there are several offences under Indian Penal Code that are non-compoundable inclusive of offences punishable under Section 498A, Section 326 IPC, which can be made compounable by introducing a suitable amendment in statute. Similarly, in the case of ‘Diwakar Singh Vs State of Bihar’ [9], it was observed that Section 324 IPC and other similar offences must be made compoundable .
Earlier in Old Cr P C, 1898, Section 345 dealt with compounding of offences and there were list of 22 offences under IPC which could be compounded by aggrieved party without permission of court and Sub-section (2) of Section 345, enumerated 32 offences which can also be compounded but with the permission of Court. In the new Cr P C 1973, the 21 offences in 1st table and 36 in 2nd table made a total of 57 compoundable offences as compared to 54 of old Code. By the Code of Criminal Procedure (Amendment ) Act of 2005 and 2009, the total number came to 56 with 43 in 1st table and 13 in 2nd table of Section 320 Cr.P.C, 1973[10].
The 237th Report on Compounding of (IPC) offences[11] reiterated a recommendation in 154th Report Of Law Commission[12] , whereby in para 11 of Chapter XII, it was suggested by senior police officers that Investigation officers shall be given the power to compound offences, which fell in compounding category, at the investigation stage and a report shall be submitted to Magistrate, who will give final effect to composition of such offence resulting in quicker disposal of cases. This suggestion founds a place in the report (supra) by National Police Commission, whereby the said provision was also proposed in 1994 (Cr P C) Amendment Bill, but could not attain finality.
Back to Section 482 Cr P C, the scale of inherent powers of High Court is very well stated in the case of Gian Singh Vs State of Punjab[13] as under :
“… Inherent power is of wide plentitude 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..”
The Hon’ble Supreme Court in the case of ‘Pepsi Foods Ltd and another Vs Special Judicial magistrate and others’[14] has very specifically stated that power of Court under Section 482 of Code have no limits and is not flexible though exercise of such powers would depend upon facts and circumstances of each case, the sole purpose being to prevent the abuse of purpose of Court.
However, there is no prescribed category of cases, in which power to quash the criminal proceedings or complaint can be exercised. There are certain criminal offences which are not private in nature and have a serious and adverse but still the FIRs have been quashed by Hon’ble Courts. In offences charged under Section 420 IPC , which although considered to be a ‘compoundable’ and a non bailable offence, providing for imprisonment upto 7 years , shows that the recommendations in 41st Report Of Law Commission[15] were not agreed to formulate a general rule that all offences which are punishable with maximum imprisonment of upto 3 years shall be compoundable.
Similar is the category of offences u/s 467, 468, 471 IPC which are non compoundable and the FIR have been quashed pursuant to a compromise. Following cases are glaring examples of these :
- Ajay Kumar and others Vs State and others [16]
- B K Sondhi Vs State[17]
- Yog Raj arora Vs State [18]
- Rachna Gera and others Vs State and others [19]
- Neelu Gupta and others Vs State [20]
- Ansal Buildwell Ltd Vs State [21]
- Jagdish Channana and others Vs State of Haryana [22]
- CBI Vs Duncans Agro Industries[23]
In the case of Gian Singh Vs State of Punjab[24], at para 57, it has been observed by the Hon’ble Supreme Court of India that 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 FIRs of non-compoundable offences r/w special legislations like P C Act have also been quashed. In the case of ‘Nikhil Merchant Vs Central Bureau of Investigation and another’[25] Central Bureau of Investigation filed a charge sheet u/s 120-B r/w 420, 467, 468, 471 IPC r/w 5 (2), 5 (1) of PC Act, 1947 and 13 (2) r/w 13 (1)(b) of P C Act, 1988 and as a result of compromise between complainant bank and all the 5 accused, the FIR was quashed . Similarly in the case of ‘Central Bureau of Investigation Vs A Ravishankar Prasad and others’[26] the accused were charged with Section 120B r/w 420 IPC , Section 13 (2) R/w Section 13 (1) (d) P C Act, the Complainant Bank entered into comprising with accused and the FIR was quashed.
Going through the above list of cases, it can be clearly drawn that even if non- compoundable offences were enlisted, the underlying principle is the one recommended by Law Commission in its 41st Report[27] in Chapter 24 of Compounding of offences which stated as follows:
‘… the broad principle that forms the basis of present scheme is that where offence is essentially of a private nature and relatively not serious it is compoundable.’
There are certain offences which are dreadful in nature affects the society at large as they are offences against the life of person and still the FIRs charging with those offences are quashed, as is seen from the case of ‘Mahesh Chand and another Vs State of Rajasthan’ [28], the accused was convicted u/s 307 IPC but the same was compounded with the permission of the Court. Similarly, in the case of ‘Yogendra Yadav and others Vs State of Jharkhand and another’[29], the accused was charged with 326 r/w/ 307 IPC, the High Court while quashing the FIR stated as under:
“in a given case, the High Court can quash a criminal proceeding in exercise of its power under Section 482 of the Code having regard to the fact that the parties have amicably settled their disputes and the victim has no objection, even though the offences are non-compoundable. In which cases the High Court can exercise its discretion to quash the proceedings will depend on facts and circumstances of each case. Offences which involve moral turpitude, grave offences like rape, murder etc. cannot be effaced by quashing the proceedings because that will have harmful effect on the society. Such offences cannot be said to be restricted to two individuals or two groups. If such offences are quashed, it may send wrong signal to the society. However, when the High Court is convinced that the offences are entirely personal in nature and, therefore, do not affect public peace or tranquility and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, it should not hesitate to quash them. In such cases, the prosecution becomes a lame prosecution. Pursuing such a lame prosecution would be waste of time and energy. That will also unsettle the compromise and obstruct restoration of peace”
As regards to the most heinous crime against the society i.e rape, the Hon’ble Supreme Court of India in the case of ‘State of Madhya Pradesh Vs Madan Lal’[30] , very categorically stated ‘that in a case of rape or attempt of rape, the conception of compromise under no circumstances can really be thought of’. The Court classified these kinds of offences that suffocate the breath of life and sully the reputation. It has been reiterated by the courts a number of times that no compromise in the case of rape shall be allowed to take place between the victim and accused and the view was duly acknowledged in the cases like ‘Bodhi Sattua Gautam Vs Subhra Chakraborty’ [31] and ‘State Vs Gurmeet Singh’[32], whereby it has been held that women have been at the receiving end of being considered as equal citizens are still considered at disadvantaged position because of certain social barriers as they face wrath of society at every level but as they have many personalities combined as of daughter, sister, wife, mother, their honour, dignity cannot be touched and thus rape is not only physical harm against her but it degrades her soul with such a heinous crime. It was further held by SC in the case of Bodhi Sattua while dismissing the petition seeking quashing of FIR in a rape case by the accused, that quashing of FIR Chargesshet pursuant to compensation, will in such cases embolden the perpetrators of such crimes and thus it shall not be allowed. But on the other hand, in the case of ‘Manoj Vs NCT of Delhi and another’[33], ‘Surendra @Rahul Vs State’[34], the charges of 376 along with other serious offences were quashed by the Courts.
Coming to other offences against women, as Section 9 of Family Courts Act, 1984 , Section 23 (2) of Hindu Marriage Act, 1955, Section 34 (2) of Special Marriage Act, 1954, imposes the obligations on the Court to take necessary steps to facilitate reconciliation or any kind of settlement between the parties (husband and wife) but with regard to Section 498 A, Justice Malimath Committee’s Report on Reforms of Criminal Justice System[35] pointed in the favour of making 498-A both bailable and compoundable to give a chance to spouse to come back together. But as per the 237th Report of Law Commission[36], it was observed that a wife who had suffered at the hands of husband cannot be expected to forget the past and agree to live amicably with her husband without rancour or revenge and secondly compoundability of 498-A would amount to legal recognition of violence against women and as a result of which, these were not made compoundable.
Conclusion
Thus , it can be concluded after going through the guidelines laid down by Hon’ble Supreme Court of India in the case of ‘Narinder Singh Vs State of Punjab and another’[37] regarding applicability of Section 482 Cr P C , that it is a fact that the purpose of law is deterrence constrained by the considerations of justice and if there has to be mercy, forgiveness and compassion in law, the deterrent theory cannot prevail and thereby enlarging the scope of heinous crimes against society . The cases involving heinous crimes must have the deterrence as paramount purpose of punishment and even if the victim or its family agrees to forgive the accused, the law needs to step in to keep the record straight of not accepting the same and to deal strictly with the wrongdoers. The reduction of commission of such offences involving murder, rape, other sexual offences is very necessary. However, there are other offences, which fall in the “correctional” objective of criminal law and punishment must be fair and conducive to them and if the Court opines that the settlement between the parties would lead to a more good and better relations between them and there would be no recurrence of any crime encounters between them, they may hold settlement to be on a better pedestal and quash the criminal proceedings. Thus, the courts have the hardened and responsible job to examine all the parameters and keep a delicate balance between the two conflicting interests and decide as to which course of action it should take in a particular case.
[1] 2012 (4) RCR (Cr.) 543
[2] (2003) 4 SCC 675
[3] CRM-M No.12098 of 2012 Decided on 3.9.2013
[4] Crl.A 831 of 2014 Decided on 7.4.2014
[5] W.P.No.37544 of 2017 Decided on 22.9.2017
[6] Crl.M.C No.2878 of 2011 , Decided on 30.8.2011
[7] CRM-M-6347 of 2011 Decided on 12.5.2011
[8] 2010 (7) SCALE 711
[9] Criminal Appeal No.433 of 2004 Decided on 18.8.2010
[10] 237th Report on Compounding of (IPC) offences Dt.30.12.2011, para 3
[11] Dt.30.12.2011
[12] 1996
[13] 2012 (4) RCR (Cr) 543
[14] (1998) 5 SCC 549
[15] 1969
[16] 131(2006) DLT 130
[17] 2001 (1) JCC Delhi 73
[18] 2002 (2) JCC 1103
[19] 122 (2005)DLT 412
[20] 2007 (3) JCC 1938
[21] Crl M C No.3517 of 2007 Decided on 21.1.2008
[22] AIR 2008 SC 1968
[23] (1996) 5 SCC 591
[24] 2012 (4) RCR (Cr) 543
[25] (2008) 9 SCC 677
[26] (2009) 6 SCC 351
[27] 1969
[28] 1990 (Supp) SCC 681
[29] (2014) 9 SCC 653
[30] Criminal Appeal No.235 Decided on 1.7.2015
[31] AIR 1996 SC 92
[32] AIR 1997 SC 1588
[33] WP (Crl) 97 of 2008
[34] B.A 883 of 2009 decided on 29.5.2009
[35] March 2003
[36] 30.12.2011
[37] (2014)6 SCC 466
About the Author: Mr Sparsh is a practising advocate in the High Court of Punjab & Haryana(at Chandigarh) as well as in the Supreme Court of India. You may reach him on LinkedIn (Follow the link).
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