THE HON’BLE Supreme Court bench
of Justice K.S.Radhakrishnan and Justice
A.K.Sikri has issued fresh guidelines on quashing of criminal proceeding of
a non-compoundable offence by using the inherent powers of High Court under
Section 482 of Criminal Procedure Code, on the basis of a settlement between
the parties. Supreme Court was considering the question whether a serious
offence like S.307 Indian Penal Code [Attempt to murder] be quashed on the
basis of a compromise entered into between the parties. The Court elaborated
the scope of S.320 of the Criminal Procedure Code which allows the compounding
of offences as follows; “There are cases where the power of the High Court
under Section 482 of the Criminal Procedure Code to quash the proceedings in
those offences which are un-compoundable 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 the
offences U/S 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 under Section 320(2) of the Code, compounding is
permissible but it requires the approval of the Court. In so far 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 vs. State of Haryana which has been followed and
further elaborated in so many cases thereafter, which are taken note of in the
discussion that follows hereinafter. At the same time, one has to keep in mind
the subtle distinction between the power of compounding of offences given to
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 solitary and squarely by the compromise
between the parties, in so far as power of quashing under Section 482 of 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 vs. State of Punjab & Anr. Justice Lodha, says
for the Court, and explained the difference between the two provisions in the
following manner: “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” 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 flavor 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”, said the Court.
At the end of the discussion the Court issued the
following guidelines
- Power conferred under Section 482 of the Code is to be
distinguished from the power which lies in the Court to compound the offences
under Section 320 of the Code. No doubt, under Section 482 of the Code, the
High Court has inherent power to quash the criminal proceedings even in those
cases which are not compoundable, where the parties have settled the matter
between themselves. However, this power is to be exercised sparingly and with
caution.
- When the parties have reached the settlement and on
that basis petition for quashing the criminal proceedings is filed, the guiding
factor in such cases would be to secure: (i) ends of justice, or (ii) to
prevent abuse of the process of any Court. While exercising the power the High
Court is to form an opinion on either of the aforesaid two objectives.
- Such a power is not be exercised in those prosecutions
which involve heinous and serious offences of mental depravity or offences like
murder, rape, Decoity, etc. Such offences are not private in nature and have a
serious impact on society. Similarly, for offences alleged to have been
committed under special statute like the Prevention of Corruption Act or the
offences committed by Public Servants while working in that capacity are not to
be quashed merely on the basis of compromise between the victim and the
offender.
- On the other, those criminal cases having
overwhelmingly and pre-dominantly civil character, particularly those arising
out of commercial transactions or arising out of matrimonial relationship or
family disputes should be quashed when the parties have resolved their entire
disputes among themselves.
- While exercising its powers, the High Court is to
examine as to whether the possibility of conviction is remote and bleak and
continuation of criminal cases would put the accused to great oppression and
prejudice and extreme injustice would be caused to him by not quashing the
criminal cases
- Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore is to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the later case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship.
- While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime