Manoj Sharma vs State & Ors

complainant have compromised and settled the 2

matter between themselves, is the question

which arises for decision in this appeal.

3. The identical question fell for the

consideration of this Court in the case of B.S.

Joshi vs. State of Haryana,[2003 (4) SCC 675]

wherein also the question arose as to whether

criminal proceedings or a First Information

Report or complaint filed under Section 498-A

and 406 IPC by the wife could be quashed under

Section 482 CrPC on account of the fact that

the offences complained of were not

compoundable under Section 320 of the Code.

The objection taken in the said case has also

been raised by Mr. B.B. Singh, learned advocate

for the respondent State.

4. In B.S. Joshi's case, this Court drew a

distinction between compounding an offence as

permitted under Section 320 CrPC and quashing

of the complaint or criminal proceedings under

Section 482 CrPC as also Article 226 of the 3

Constitution. Pointing out that the appellant

in the said case had not prayed for compounding

the offence as the same was not compoundable,

this Court observed with reference to the

earlier decision in Pepsi Food Limited vs.

Special Judicial Magistrate, [1998 (5) SCC

749], that where the Court will exercise

jurisdiction under Section 482 of the Code

could not be inflexible or rigid formulae to be

followed by the Courts could not be laid down.

Exercise of such power would depend upon the

facts and circumstances of each case but with

the sole object of preventing abuse of the

process of any Court, or otherwise to secure

the ends of justice. It was also observed that

it is well settled that these powers have no

bar, but the same was required to be exercised

with utmost care and caution. Accordingly, the

learned Judges held that the power of the High

Court under Section 482 of the Code to quash

Criminal proceedings or FIR or complaint were 4

not circumscribed by Section 320 of the Code of

Criminal Procedure.

5. While the appellant herein strongly relied on

the decision in B.S. Joshi's case. Mr. B.B.

Singh, learned counsel appearing for the

respondent-State urged that having regard to

the specific provision in the Code regarding

compounding of offences, and indicating what

offences may be compromised either with or

without the leave of the Court, possibly the

decision rendered in B.S. Joshi's case required

a second look. Relying on the decision of this

Court in Inspector of Police, CBI vs.

Rajagopal, [2002 (9) SCC 533], K.G. Prem

Shankar vs. Inspector of Police and Anr. [JT

2002 (7) SC 30] and also Textile Labour

Association and Anr. Vs. Official Liquidator

and Anr. [JT 2004 (suppl.1) SC 1], Mr. Singh

submitted that in B.S. Joshi's case there was a

departure from the view taken in the first of

the two aforesaid cases.

5

6. We have carefully considered the submissions

made on behalf of the respective parties and

the facts involved in this case, and we are not

inclined to accept Mr. Singh's contention that

the decision in B.S. Joshi's case requires

reconsideration, at least not in the facts of

this case. What was decided in B.S. Joshi's

case was the power and authority of the High

Court to exercise jurisdiction under Section

482 CrPC or under Article 226 of the

Constitution to quash offences which are not

compoundable. The law stated in the said case

simply indicates the powers of the High Court

to quash any criminal proceeding or First

Information Report or complaint whether it be

compoundable or not. The ultimate exercise of

discretion under Section 482 CrPC or under

Article 226 of the Constitution is with the

Court which has to exercise such jurisdiction

in the facts of each case. It has been

explained that the said power is in no way

limited by the provisions of Section 320 CrPC. 6

We are unable to disagree with such statement

of law. In any event, in this case, we are

only required to consider whether the High

Court had exercised its jurisdiction under

Section 482 Cr.P.C. legally and correctly.

7. In view of the nature of the offences set out

in the complaint, the High Court did not

consider it an appropriate case for exercising

its jurisdiction under Article 226 of the

Constitution for quashing the same.

8. In our view, the High Court's refusal to

exercise its jurisdiction under Article 226 of

the Constitution for quashing the criminal

proceedings cannot be supported. The First

Information Report, which had been lodged by

the complainant indicates a dispute between the

complainant and the accused which is of a

private nature. It is no doubt true that the

First Information Report was the basis of the

investigation by the Police authorities, but 7

the dispute between the parties remained one of

a personal nature. Once the complainant

decided not to pursue the matter further, the

High Court could have taken a more pragmatic

view of the matter. We do not suggest that

while exercising its powers under Article 226

of the Constitution the High Court could not

have refused to quash the First Information

Report, but what we do say is that the matter

could have been considered by the High Court

with greater pragmatism in the facts of the

case. As we have indicated hereinbefore, the

exercise of power under Section 482 Cr.P.C. or

Article 226 of the Constitution is

discretionary to be exercised in the facts of

each case.

9. In the facts of this case we are of the view

that continuing with the criminal proceedings

would be an exercise in futility.

8

10. We, accordingly, allow the appeal and set aside

the order of the High Court and quash the

criminal proceedings pending before the learned

Additional Chief Metropolitan Magistrate,

Karkardooma Court, Delhi, in FIR No.50 of 1997

dated 31st January, 1997 P.S. Vivek Vihar (East

Delhi).

_________________J.

(ALTAMAS KABIR)

New Delhi

Dated:October 16, 2008 9

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.___________OF 2008 [@ Special Leave Petition(Criminal_ No. 5265 of 2007]

Manoj Sharma .. Appellant

-versus

State & Others ..

Respondents

J U D G M EN T

Markandey Katju, J.

1. I have read the judgment of my learned brother Hon. Kabir, J. and I

respectfully agree with his conclusion that the appeal should be allowed and 10

the judgment of the High Court as well as the criminal proceedings pending

before the Additional Chief Metropolitan Magistrate, Karkardooma Court,

Delhi in FIR No. 50 of 1997 dated 31st January, 1997 P.O. Vivek Vihar

(East Delhi) against the appellant should be quashed.

2. However, I wish to give a separate concurring judgment in view of

the importance of the issue involved in this case.

3. The question involved in this case is whether an FIR under Section

420/468/471/34/120-B IPC can be quashed under Section 482 Cr.P.C. or

Article 226 of the Constitution when the accused and the complainant have

compromised and settled the matter between themselves.

4. The allegations in the FIR are as follows:

"Statement of Sanjay Pal S/o Mahendra singh Pal R/o House No. A-25, Jhilmil Colony, Vivek Vihar, Delhi, stated that I reside at the above mentioned address with my family. I got financed a Maruti Van bearing No. DL- 1CB-4065 from Shri Manoj Kumar Sharma - Vijay Lakshmi Finance & Investment Company before two years back for a consideration amount of Rs. 30,000/- and I paid Rs. 3954/- as first installment. After that Shri Man Mohan Sharma R/o D-131, Jhilmil Colony, came and told me that your finance is fabricated one, that is why your vehicle has not been financed by me from Real Auto Deals which is run by my brother-in-law. I have received the payment given by you and your file. He asked me to give return the first R.C. He gave me the 11

new R.C.. I returned him the old R.C. He suggested me that now the financer of your vehicle is Real Auto Deals. I was shocked that how the vehicle got transferred without signing any form and paper. Man Mohan Sharma used to receive the installments in cash every month from me. The receipts issued to me put up with neither rubber stamp nor used the letter head of Real Auto Deals. The cheques received from me, encashed him in different-different names instead depositing in the account of Real Auto Deals. When it has come to my notice that he is playing fraud with me, then visited the bank and got stopped the payment of the cheques. He came to me when the cheque was dishonoured and asked me why you stop the payment. I explained him that I have already sent you a notice stating that I will make the payments of the installments in the name of Real Auto Deals but you are not doing so, therefore, I got stopped the payments. Thereafter, on 27.12.1995 at about 10 O'clock he came to me in Jhilmil along with an unknown person, I can recognize him if he comes to me, took my said Maruti Van with his help without my consent by showing me a paper duly stamped by the police. Vijay Lakshmi Finance, Real Auto Deals and Man Mohan Sharma, have sold my vehicle to some other place by making my forged signatures and by playing fraud with me, in connivance of each other. The appropriate legal action may kindly be taken against all these persons. Statement heard which is correct. Sd/- English. Sanjay Pal 31.1.97 Attested Sd/- Snglish Satya Narayan ASI 31.1.97".

5. A perusal of the FIR shows that the allegations against the appellant

were that he forged documents in respect of a vehicle and thereafter

indulged in cheating and deposited the cheques received from the

complainant against financing of the vehicle in different accounts. It is also 12

alleged in the FIR that the appellant sold the vehicle of the complainant to

some other party by making forged signature and by playing fraud with him.

6. On the basis of the above FIR charges were framed against the

appellant and co-accused Man Mohan Sharma.

7. The appellant filed a writ petition before the High Court for quashing

the FIR on the ground that the matter had been compromised between the

complainant and the accused. In that writ petition an affidavit was filed by

the complainant stating that in view of the settlement between the parties he

is withdrawing the allegations against both the writ petitioners and he is

also withdrawing the FIR. As per the amicable settlement a sum of Rs.

45,000/- would be paid to the appellant Manoj Sharma and a further sum of

Rs. 45,000/- would be paid to the co-accused Man Mohan Sharma.

8. However, the Delhi High Court by the impugned judgment dated

17.8.2007 rejected the writ petition and hence this appeal.

9. It may be mentioned that under Section 320(1) Cr.P.C. certain

offences in the IPC can be compounded by the persons mentioned in the 3rd

column of the table in that provision. Also, in view of Section 320(2) 13

certain other offences can be compounded with the permission of the Court.

However, Section 320 (9) specifically states:

"No offence shall be compounded except as provided by this Section".

10. A perusal of Section 320 shows that offences under Section 468, 471,

34 and 120-B IPC (with are mentioned in the FIR in question) cannot even

be compounded with the permission of the Court. In fact, Section 320(9)

Cr.P.C. expressly states that no offence shall be compounded except as

provided by this Section. It apparently follows, therefore, that except for

Section 420 IPC, which can be compounded with the permission of the

Court in view of Section 320(2), the other provisions mentioned in the FIR

in question could not be compounded even with the permission of the Court.

It, prima facie, seems to follow that the offences mentioned in the FIR were

not compoundable except in relation to the allegations about Section 420

IPC.

11. There are other provisions in the IPC e.g. Section 498A which

apparently cannot be compounded even with the permission of the Court in

view of Section 320 (9) Cr.P.C.

14

12. However, this was creating a lot of difficulty and hardship to the

public and hence a way out was found by this Court in B.S. Joshi and others

vs. State of Haryana 2003(4) SCC 675 [= JT 2003(3) SC 277 = AIR 2003

SC 1386]. In that decision this Court referred to its own earlier decision in

Madhu Limaye vs. State of Maharashtra 1977 (4) SCC 551 in which it was

held (vide para 8) that the power under Section 482 should not be exercised

when there is an express bar in some other provision of the Code. The

Court in B.S. Joshi's case (supra) also referred to the decision in Surendra

Nath Mohanty vs. State of Orissa AIR 1999 SC 2181 which held that since

the offence under Section 326 IPC is not compoundable the High Court

cannot compound the offence.

13. Despite the above decisions this Court in B.S. Joshi's case (supra)

relying on its own decision in State of Karanataka vs. L. Muniswamy 1977

(2) SCC 699 observed that the High Court under Section 482 Cr.P.C. can

quash the criminal proceedings if it comes to the conclusion that the ends of

justice so requires e.g. where there would almost be no chance of

conviction. In a case under Section 498A IPC if the parties enter into a

compromise the chances of an ultimate conviction are bleak, and hence no

useful purpose would be served by allowing the criminal proceedings to

continue. They should, therefore, be quashed by exercising power under 15 Section 482 Cr.P.C. The Court also relied on the decisions in Madhavrao

Jiwajirao Scindia vs. Sambhajirao Chandrojirao Angre 1988 1 SCC 692,

G.V. Rao vs. L.H.V. Prasad (2000) 3 SCC 693 for taking the same view.

14. In B.S. Joshi's case (supra) this Court devised a creative solution to

the problem and quashed the proceedings in exercise of its power under

Section 482 Cr.P.C.. The said decision was followed by this Court in Nikhil

Merchant vs. Central Bureau of Investigation & another JT 2008 (9) SC

192.

15. Shri B.B. Singh, learned counsel for the respondent submitted that the

High Court or even this Court would not be justified in giving directions to

quash a criminal proceeding in view of the compromise between the parties

when the offence has been expressly made non-compoundable by Section

320 Cr.P.C. He urged that the Court cannot ignore any substantive statutory

provision dealing with the subject and cannot issue a writ or a direction in

violation of the statute.

16. Ordinarily we would have agreed with Mr. B.B. Singh. The doctrine

of judicial restraint which has been emphasized repeatedly by this Court e.g.

in Divisional Manager, Aravali Golf Club & another vs. Chander Hass & 16

another JT 2008(3) SC 221, Government of Andhra Pradesh & others vs.

Smt. P. Laxmi Devi JT 2008 (2) SC 639 restricts the power of the Court

and does not permit the Court to ordinarily encroach into the legislative or

executive domain. As observed by this Court in the above decisions, there

is a broad separation of powers in the Constitution and it would not be

proper for one organ of the State to encroach into the domain of another

organ.

17. Since Section 320 Cr.P.C. has clearly stated which offences are

compoundable and which are not, the High Court or even this Court would

not ordinarily be justified in doing something indirectly which could not be

done directly. Even otherwise, it ordinarily would not be a legitimate

exercise of judicial power under Article 226 of the Constitution or under

Section 482 Cr.P.C. to direct doing something which the Cr.P.C. has

expressly prohibited. Section 320(9) Cr.P.C. expressly states that no

offence shall be compounded except as provided by that Section. Hence, in

my opinion, it would ordinarily not be a legitimate exercise of judicial

power to direct compounding of a non-compoundable offence. 17

18. However, it has to be pointed out that Section 320 Cr.P.C. cannot be

read in isolation. It has to be read along with the other provisions in the

Cr.P.C. One such other provision is Section 482 Cr.P.C. which reads:

" Saving of inherent power of High Court. - 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."

19. The words "Nothing in this Code" used in Section 482 is a non

obstante clause, and gives it overriding effect over other provisions in the

Cr.P.C. The words "or otherwise to secure the ends of justice" in Section

482 implies that to secure the interest of justice sometimes (though only in

very rare cases) the High Court can pass an order in violation of a provision

in the Cr.P.C.

20. It is true that in certain decisions of this Court it has been observed

that the power under Section 482 Cr.P.C. cannot be exercised to do

something which is expressly barred under the Code vide Mosst. Simrikhia

vs. Dolley Mukherjee AIR 1990 SC 1605 (vide paras 2 & 4), R.P. Kapur vs.

State of Punjab AIR 1960 SC 866 (vide para 6), Sooraj Devi vs. Pyare Lal

& another AIR 1981 SC 736 (vide para 5) etc. 18

21. However, in my opinion these judgments cannot be read as a Euclid's

formula since it is well settled that judgments of a Court cannot be read

mechanically and like a Euclid's theorem vide Dr. Rajbir Singh Dalal vs.

Chaudhari Devi Lal University 2008(8) JT 621, Bharat Petroleum

Corporation Ltd. & another vs. N.R. Vairamani and another AIR 2004 SC

4778. In rare and exceptional cases a departure can be made from the

principle laid down in the decisions referred to in para 20, as observed in

B.S. Joshi's case (supra), which has also been followed in other decisions

e.g. Nikhil Merchant's case (supra). Even in the judgment of this Court in

Divisional Manager Aravalli Golf Club (supra) where emphasis has been

laid on judicial restraint it has been mentioned that sometimes judicial

activism can be resorted to by the Court where the situation forcefully

requires it in the interest of the country or society (vide para 39 of the said

judgment). Judicial activism was rightly resorted to by the U.S. Supreme

Court in Brown vs. Board of Education 347 U.S. 483, Miranda vs.

Arizona 384 U.S. 436, Roe vs. Wade 410 U.S. 113, etc. and by Lord

Denning in England in several of his decisions.

22. While in the present case I respectfully agree with my learned brother

Hon'ble Kabir J. that the criminal proceedings deserve to be quashed, the 19

question may have to be decided in some subsequent decision or decisions

(preferably by a larger Bench) as to which non-compoundable cases can be

quashed under Section 482 Cr.P.C. or Article 226 of the Constitution on the

basis that the parties have entered into a compromise.

23. There can be no doubt that a case under Section 302 IPC or other

serious offences like those under Sections 395, 307 or 304B cannot be

compounded and hence proceedings in those provisions cannot be quashed

by the High Court in exercise of its power under Section 482 Cr.P.C. or in

writ jurisdiction on the basis of compromise. However, in some other cases,

(like those akin to a civil nature) the proceedings can be quashed by the

High Court if the parties have come to an amicable settlement even though

the provisions are not compoundable. Where a line is to be drawn will have

to be decided in some later decisions of this Court, preferably by a larger

bench (so as to make it more authoritative). Some guidelines will have to

be evolved in this connection and the matter cannot be left at the sole

unguided discretion of Judges, otherwise there may be conflicting decisions

and judicial anarchy. A judicial discretion has to be exercised on some

objective guiding principles and criteria, and not on the whims and fancies

of individual Judges. Discretion, after all, cannot be the Chancellor's foot. 20

24. I am expressing this opinion because Shri B.B. Singh, learned counsel

for the respondent has rightly expressed his concern that the decision in B.S.

Joshi's case (supra) should not be understood to have meant that Judges can

quash any kind of criminal case merely because there has been a

compromise between the parties. After all, a crime is an offence against

society, and not merely against a private individual.

25. With these observations, I respectfully agree with my learned brother

Hon'ble Kabir J. that this appeal is to be allowed and the criminal

proceedings in question are to be quashed. Appeal allowed. No costs.

................................J. (Markandey Katju) New Delhi;

16th October, 2008