C482/1047/2014 of Nand Kishor Vs State Of Uttarakhand AND ANOTHER

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Misc. Application No.1047 of 2014

Nand Kishor

… Applicant

State of Uttarakhand and another … Respondents

Mr. M. K. Ray, Advocate present for the applicant. Mr. Raman Kumar Sah, Deputy Advocate General present for the State. Mr. D. K. Tyagi, Advocate present for the respondent no.2.

U. C. Dhyani, J. (Oral)

1.Applicant-Nand Kishor was convicted for the offences punishable under Sections 420, 468, 471 IPC read with Section 465 IPC and was sentenced accordingly, vide judgment and order dated 16.10.2012 passed by the Chief Judicial Magistrate, Udham Singh Nagar in Criminal Case no.3871/2012. Aggrieved against the same, the convict-applicant preferred criminal appeal before the Sessions Judge, Udham Singh Nagar, which is pending adjudication of said court.

2.In between, compromise took place between the parties. Compounding Application (CRMA No.1321 of 2014) is filed before this Court to show that the parties have settled their disputes amicably. The said application is supported by the affidavits of convict-Nand Kishor (applicant herein) and informant/victim (respondent no.2 herein), who are present in person, duly identified by their respective counsel. The informant/victim submitted before this Court that he does not wish to prosecute the applicant, in as much as, compromise has taken place between them. The informant prayed that he may be permitted to compound the offences proved against the applicant, the application under Section 482 Cr.P.C. be allowed

and the conviction as well as the sentence awarded to the applicant-convict be set aside.

3.The offences under Sections 468, 471 IPC read with Section 465 IPC are non-compoundable offences. The offence punishable under Section 420 IPC is, however, compoundable offence (with the permission of the Court) within the scheme of Section 320 Cr.P.C., provided the person cheated is ready to compound the offence.

4.The question is – whether the informant/victim should be permitted to compound such offences against the applicant or not?

5.In ordinary course, had the applicant not been convicted, the Court would have easily granted permission to the victim to compound such offences proved against the applicant in view of the decisions of Hon’ble Apex Court in Gian Singh vs. State of Punjab and another, (2013) 1 SCC (Cri) 160 and Nikhil Merchant vs. Central Bureau of Investigation and another, (2008) 9 SCC 667. Hon’ble Apex Court in Nikhil Merchant’s case (supra)held that Section 320 Cr.P.C. will not come in the way of High Court in exercising it’s inherent jurisdiction under Section 482 Cr.P.C.

6.In the instant case, the situation is somewhat different. The applicant is convict. In such situation, sub-section (5) of Section 320 Cr.P.C. comes to the aid of this Court. Sub-section (5) of Section 320 Cr.P.C. reads as under:

“(5) When the accused has been committed for trial or when he has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court to which he is committed, or, as the case may be, before which the appeal is to be heard.”

7.Since three of the offences proved against the applicant are non-compoundable offences within the scheme of Section 320 Cr.P.C., it would not have been possible for the lower appellate court to compound such offences. It is on account of this reason that the applicant has come before this Court under Section 482 Cr.P.C. The philosophy propounded by Hon’ble Apex Court in Gian Singh’s case (supra) and Narendra Singh and others vs. State of Punjab and another, (2014) 6 SCC 466 is that when the victim is not interested in prosecuting the accused, it is of no use asking him to pursue the criminal proceedings. This is, however, subject to certain exceptions. In the instant case, if the criminal appeal pending before the Sessions Judge, Udham Singh Nagar is heard on merits and learned counsel for the victim argues there that he is not interested in maintaining the prosecution of the applicant, the court below would have no other option, but, to acquit the accused and to allow his appeal. Thus, the convict will be set free under the garb of the fact that settlement has been taken place between the convict and the informant. The inherent power conferred under Section 482 Cr.P.C. is meant for meeting such exigencies. It will be worthwhile to reproduce the observations made by Hon’ble Apex

Court in Gian Singh’s case (supra) as hereinunder:

“The position that emerges from the above discussion can be summarized thus: the power of the High Court in quashing criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude 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. In what cases power to quash the criminal proceeding or complaint of F.I.R. may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime.Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statues 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 the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceedings or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.”

8. The present case is thus covered by the decisions of Apex Court in Gian Singh’s case (supra) and Narendra Singh’scase (supra).

9.This Court is, therefore, of the opinion that victim-respondent no.2 should be permitted to compound the offences proved against the applicant in order to maintain peace in the society and to secure the ends of justice.

10.In view of the aforesaid discussion, compounding application is allowed. As consequence thereof, application under Section 482 Cr.P.C. too is allowed. The conviction and sentence awarded to the applicant by the trial court, videjudgment and order dated 16.10.2012, is set aside on the basis of compromise between the parties. The criminal appeal filed by the applicant before the lower appellate court is thus rendered infructuous.

(U. C. Dhyani, J.)

Dated 04[th] September, 2014 Rawat