Shiji @ Pappu & Ors vs Radhika & Anr

Shiji @ Pappu and Ors. ...Appellants

Versus

Radhika and Anr. ...Respondents

J U D G M E N T

T.S. THAKUR, J.

1. Leave granted.

2. This appeal arises out of an order passed by the High

Court of Kerala at Ernakulam, whereby Criminal M.C. no. 3715

of 2010 filed under Section 482 of the Code of Criminal

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Procedure, 1973, with a prayer for quashing criminal

proceedings in FIR No.6/2010 alleging commission of offences

punishable under Sections 354 and 394 of the IPC, has been

dismissed. The High Court has taken the view that the

offences with which the appellants stand charged, are not

'personal in nature' so as to justify quashing the pending

criminal proceedings on the basis of a compromise arrived at

between the first informant-complainant and the appellants.

The only question that, therefore, arises for consideration is

whether the criminal proceedings in question could be quashed

in the facts and circumstances of the case having regard to the

settlement that the parties had arrived at.

3. Respondent-Radhika filed an oral complaint in the Police

Station at Nemom in the State of Kerala, stating that she had

accompanied her husband to see a site which the latter had

acquired at Punjakari. Upon arrival at the site, her husband and

brother Rajesh went inside the plot while she waited for them

near the car parked close by. Three youngsters at this stage

appeared on a motorbike, one of whom snatched the purse and

mobile phone from her hands while the other hit her on the

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cheek and hand. She raised an alarm that brought her husband

and brother rushing to the car by which time the offenders

escaped towards Karumam on a motorcycle. The complainant

gave the registration number of the motorbike to the police

and sought action against the appellants who were named by

her in the statement made before the Additional Police Sub-

Inspector attached to the Nemom Police Station. FIR

No.6/2010 was, on the basis of that statement, registered in

the police station and investigation started. A charge sheet

was, in due course, filed against the appellants before the

Judicial Magistrate First Class, Neyyattinkara, eventually

numbered CC 183/2010.

4. During the pendency of the criminal proceedings

aforementioned, the parties appear to have amicably settled

the matter among themselves. Criminal M.C. No.3715 of 2010

under Section 482 Cr.P.C. was on that basis filed before the

High Court of Kerala at Ernakulam for quashing of the

complaint pending before the Judicial Magistrate First Class,

Neyyattinkara. That prayer was made primarily on the premise

that appellant No.1 Shiji @ Pappu who also owns a parcel of

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land adjacent to the property purchased by the respondent-

Radhika, had some dispute in regard to the road leading to the

two properties. An altercation had in that connection taken

place between the appellants on the one hand and the husband

and brother of the respondent on the other, culminating in the

registration of the FIR mentioned above. The petition further

stated that all disputes civil and criminal between the parties

had been settled amicably and that the respondent had no

grievance against the appellants in relation to the access to the

plots in question and that the respondent had no objection to

the criminal proceedings against the appellants being quashed

by the High Court in exercise of its power under Section 482

Cr.P.C. The petition further stated that the disputes between

the parties being personal in nature the same could be taken

as settled and the proceedings put to an end relying upon the

decision of this Court in Madan Mohan Abbot v. State of

Punjab (2008) 4 SCC 582. An affidavit sworn by the

respondent stating that the matter stood settled between the

parties was also filed by the appellants before the High Court.

The High Court has upon consideration declined the prayer

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made by the appellants holding that the offences committed by

the appellants were not of a personal nature so as to justify

quashing of the proceedings in exercise of its extra-ordinary

jurisdiction under Section 482 Cr.P.C.

5. We have heard learned counsel for the parties and

perused the impugned order. Section 320 of the Cr.P.C. enlists

offences that are compoundable with the permission of the

Court before whom the prosecution is pending and those that

can be compounded even without such permission. An offence

punishable under Section 354 of the IPC is in terms of Section

320(2) of the Code compoundable at the instance of the

woman against whom the offence is committed. To that extent,

therefore, there is no difficulty in either quashing the

proceedings or compounding the offence under Section 354, of

which the appellants are accused, having regard to the fact

that the alleged victim of the offence has settled the matter

with the alleged assailants. An offence punishable under

Section 394 IPC is not, however, compoundable with or without

the permission of the Court concerned. The question is whether

the High Court could and ought to have exercised its power

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under Section 482 Cr.P.C. for quashing the prosecution under

the said provision in the light of the compromise that the

parties have arrived at.

6. Learned counsel for the appellants submitted that the first

informant-complainant had, in the affidavit filed before this

Court, clearly admitted that the complaint in question was

lodged by her on account of a misunderstanding and

misconception about the facts and that the offences of which

the appellants stand accused are purely personal in nature

arising out of personal disputes between the parties. It was

also evident that the complainant was no longer supporting the

version on which the prosecution rested its case against the

appellants. According to the learned counsel there was no

question of the Trial Court recording a conviction against the

appellants in the light of what the complainant had stated on

affidavit. That was all the more so, when the other two

prosecution witnesses were none other than the husband and

the brother of the complainant who too were not supporting

the charges against the appellants. Such being the case,

continuance of criminal trial against the appellants was nothing

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but an abuse of the process of law and waste of valuable time

of the Courts below. Exercise of power by the High Court under

Section 482 Cr.P.C. to prevent such abuse is perfectly justified,

contended the learned counsel. Reliance in support was placed

by the learned counsel upon the decision of this Court in

Madan Mohan Abbot's case (supra).

7. This Court has, in several decisions, declared that offences

under Section 320 Cr.P.C. which are not compoundable with or

without the permission of the Court cannot be allowed to be

compounded. In Ram Lal and Anr. v. State of J & K (1999)

2 SCC 213, this Court referred to Section 320(9) of the Cr.P.C.

to declare that such offences as are made compoundable under

Section 320 can alone be compounded and none else. This

Court declared two earlier decisions rendered in Y. Suresh

Babu v. State of Andhra Pradesh, JT (1987) 2 SC 361 and

Mahesh Chand v. State of Rajasthan, 1990 Supp. SCC

681, to be per incuriam in as much as the same permitted

composition of offences not otherwise compoundable under

Section 320 of the Cr.P.C. What is important, however, is that

in Ram Lal's case (supra) the parties had settled the dispute

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among themselves after the appellants stood convicted under

Section 326 IPC. The mutual settlement was then sought to be

made a basis for compounding of the offence in appeal arising

out of the order of conviction and sentence imposed upon the

accused. This Court observed that since the offence was non-

compoundable, the court could not permit the same to be

compounded, in the teeth of Section 320. Even so, the

compromise was taken as an extenuating circumstance which

the court took into consideration to reduce the punishment

awarded to the appellant to the period already undergone. To

the same effect is the decision of this Court in Ishwar Singh

v. State of Madhya Pradesh (2008) 15 SCC 667; where

this Court said:

"14. In our considered opinion, it would not be

appropriate to order compounding of an offence not

compoundable under the Code ignoring and keeping

aside statutory provisions. In our judgment, however,

limited submission of the learned counsel for the

appellant deserves consideration that while imposing

substantive sentence, the factum of compromise

between the parties is indeed a relevant circumstance

which the Court may keep in mind."

8. There is another line of decisions in which this Court has

taken note of the compromise arrived at between the parties

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and quashed the prosecution in exercise of powers vested in

the High Court under Section 482 Cr.P.C. In State of

Karnataka v. L. Muniswamy & Ors. (1977) 2 SCC 699 this

Court held that the High Court was entitled to quash the

proceedings if it came to the conclusion that the ends of justice

so required. This Court observed:

".....Section 482 of the new Code, which corresponds to

Section 561-A o the Code of 1898, 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."

In the exercise of this wholesome power, the High

Court is entitled to quash a proceeding if it comes to

the conclusion that allowing the proceeding to continue

would be an abuse of the process of the Court or that

the ends of justice require that the proceeding ought to

be quashed. The saving of the High Court's inherent

powers, both in civil and criminal matters is designed to

achieve a salutary public purpose which is that a court

proceeding ought not to be permitted to degenerate

into a weapon of harassment or persecution. In a

criminal case, the veiled object behind a lame

prosecution, the very nature of the material on which

the structure of the prosecution rests and the like

would justify the High Court in quashing the proceeding

in the interest of justice. The ends of justice are higher

than the ends of mere law though justice has got to be

administered according to laws made by the legislature.

The compelling necessity for making these observations

is that without a proper realisation of the object and

purpose of the provision which seeks to save the

inherent powers of the High Court to do justice

between the State and its subjects it would be

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impossible to appreciate the width and contours of that

salient jurisdiction."

9. In Madhavrao Jiwajirao Scindia and Ors. v.

Sambhajirao Chandrojirao Angre and Ors. (1988) 1 SCC

692, this Court held that the High Court should take into

account any special features which appear in a particular case

to consider whether it is expedient and in the interest of justice

to permit a prosecution to continue or quash the prosecution

where in its opinion the chances of an ultimate conviction are

bleak. This Court observed:

"7. The legal position is well settled that when a

prosecution at the initial stage is asked to be quashed,

the test to be applied by the court is as to whether the

uncontroverted allegations as made prima facie

establish the offence. It is also for the court to take into

consideration any special features which appear in a

particular case to consider whether it is expedient and

in the interest of justice to permit a prosecution to

continue. This is so on the basis that the court cannot

be utilised for any oblique purpose and where in the

opinion of the court chances of an ultimate conviction

are bleak and, therefore, no useful purpose is likely to

be served by allowing a criminal prosecution to

continue, the court may while taking into consideration

the special facts of a case also quash the proceeding

even though it may be at a preliminary stage."

10. In B.S Joshi and Ors. v. State of Haryana, (2003) 4

SCC 675, the question that fell for consideration before this

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Court was whether the inherent powers vested in the High

Court under Section 482 Cr.P.C. could be exercised to quash

non-compoundable offences. The High Court had, in that case

relying upon the decision of this Court in Madhu Limaye v.

The State of Maharashtra, (1977) 4 SC 551, held that

since offences under Sections 498-A and 406 IPC were not

compoundable, it was not permissible in law to quash the FIR

on the ground that there has been a settlement between the

parties. This Court declared that the decisions in Madhu

Limaye's case (supra) had been misread and misapplied by

the High Court and that the judgment of this Court in Madhu

Limaye's case (supra) clearly supported the view that nothing

contained in Section 320(2) can limit or affect the exercise of

inherent power of the High Court if interference by the High

Court was considered necessary for the parties to secure the

ends of justice. This Court observed:

"8. It is, thus, clear that Madhu Limaye case (1977)

4 SC 551 does not lay down any general proposition

limiting power of quashing the criminal proceedings or

FIR or complaint as vested in Section 482 of the Code

or extraordinary power under Article 226 of the

Constitution of India. We are, therefore, of the view

that if 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 is,

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however, a different matter depending upon the facts

and circumstances of each case whether to exercise or

not such a power.

15. In view of the above discussion, we hold that the

High Court in exercise of its inherent powers can quash

criminal proceedings or FIR or complaint and Section

320 of the Code does not limit or affect the powers

under Section 482 of the Code."

11. That brings to the decision of this Court in Madan Mohan

Abbot' case (supra) whereby the High Court had declined the

prayer for quashing of the prosecution for offences punishable

under Sections 379, 406, 409, 418, 506/34 IPC despite a

compromise entered into between the complainant and the

accused. The High Court had taken the view that since the

offence punishable under Section 406 was not compoundable

the settlement between the parties could not be recognized nor

the pending proceedings quashed. This Court summed up the

approach to be adopted in such cases in the following words:

"6. We need to emphasise that it is perhaps advisable

that in disputes where the question involved is of a

purely personal nature, the court should ordinarily

accept the terms of the compromise even in criminal

proceedings as keeping the matter alive with no

possibility of a result in favour of the prosecution is a

luxury which the courts, grossly overburdened as they

are, cannot afford and that the time so saved can be

utilised in deciding more effective and meaningful

litigation. This is a common sense approach to the

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matter based on ground of realities and bereft of the

technicalities of the law.

7. We see from the impugned order that the learned

Judge has confused compounding of an offence with

the quashing of proceedings. The outer limit of Rs 250

which has led to the dismissal of the application is an

irrelevant factor in the later case. We, accordingly,

allow the appeal and in the peculiar facts of the case

direct that FIR No. 155 dated 17-11-2001 PS Kotwali,

Amritsar and all proceedings connected therewith shall

be deemed to be quashed."

12. To the same effect is the decision of this Court in Nikhil

Merchant v. CBI 2008(9) SCC 677 where relying upon the

decision in B.S. Joshi (supra), this Court took note of the

settlement arrived at between the parties and quashed the

criminal proceedings for offences punishable under Sections

420, 467, 468 and 471 read with Section 120-B of IPC and held

that since the criminal proceedings had the overtone of a civil

dispute which had been amicably settled between the parties it

was a fit case where technicality should not be allowed to stand

in the way of quashing of the criminal proceedings since the

continuance of the same after the compromise arrived at

between the parties would be a futile exercise. We may also

at this stage refer to the decision of this Court in Manoj

Sharma v. State and Ors. (2008) 16 SCC 1. This court

observed:

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"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 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. xxxxxxxxxxxxxx

9. As we have indicated hereinbefore, the exercise of

power under Section 482 CrPC of Article 226 of the

Constitution is discretionary to be exercised in the facts

of each case. In the facts of this case we are of the

view that continuing with the criminal proceedings

would be an exercise in futility....."

13. It is manifest that simply because an offence is not

compoundable under Section 320 IPC is by itself no reason for

the High Court to refuse exercise of its power under Section

482 Cr.P.C. That power can in our opinion be exercised in cases

where there is no chance of recording a conviction against the

accused and the entire exercise of a trial is destined to be an

exercise in futility. There is a subtle distinction between

compounding of offences by the parties before the trial Court

or in appeal on one hand and the exercise of power by the High

Court to quash the prosecution under Section 482 Cr.P.C. on

the other. While a Court trying an accused or hearing an appeal

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against conviction, may not be competent to permit

compounding of an offence based on a settlement arrived at

between the parties in cases where the offences are not

compoundable under Section 320, the High Court may quash

the prosecution even in cases where the offences with which

the accused stand charged are non-compoundable. The

inherent powers of the High Court under Section 482 Cr.P.C.

are not for that purpose controlled by Section 320 Cr.P.C.

Having said so, we must hasten to add that the plenitude of

the power under Section 482 Cr.P.C. by itself, makes it

obligatory for the High Court to exercise the same with utmost

care and caution. The width and the nature of the power itself

demands that its exercise is sparing and only in cases where

the High Court is, for reasons to be recorded, of the clear view

that continuance of the prosecution would be nothing but an

abuse of the process of law. It is neither necessary nor proper

for us to enumerate the situations in which the exercise of

power under Section 482 may be justified. All that we need to

say is that the exercise of power must be for securing the ends

of justice and only in cases where refusal to exercise that

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power may result in the abuse of the process of law. The High

court may be justified in declining interference if it is called

upon to appreciate evidence for it cannot assume the role of an

appellate court while dealing with a petition under Section 482

of the Criminal Procedure Code. Subject to the above, the High

Court will have to consider the facts and circumstances of each

case to determine whether it is a fit case in which the inherent

powers may be invoked.

14. Coming to the case at hand we are of the view that the

incident in question had its genesis in a dispute relating to the

access to the two plots which are adjacent to each other. It

was not a case of broad day light robbery for gain. It was a

case which has its origin in the civil dispute between the

parties, which dispute has, it appears, been resolved by them.

That being so, continuance of the prosecution where the

complainant is not ready to support the allegations which are

now described by her as arising out of some "misunderstanding

and misconception" will be a futile exercise that will serve no

purpose. It is noteworthy that the two alleged eye witnesses,

who are closely related to the complainant, are also no longer

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supportive of the prosecution version. The continuance of the

proceedings is thus nothing but an empty formality. Section

482 Cr.P.C. could, in such circumstances, be justifiably invoked

by the High Court to prevent abuse of the process of law and

thereby preventing a wasteful exercise by the Courts below.

15. We accordingly allow this appeal, set aside the impugned

order passed by the High Court and quash the prosecution in

CC 183/2010 pending in the Court of Judicial Magistrate, First

Class, Neyyattinkara.

...................................J.

(CYRIAC JOSEPH)

...................................J.

New Delhi (T.S. THAKUR)

November 14, 2011

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