Abdul Wahid and Another vs State of U.P. and Another

Ravindra Singh, J.—Heard Sri. A.B.L. Gaur, senior advocate, assisted by Sri. Saurabh Gaur, learned Counsel for the applicants, learned A.G.A. for the State of U.P.

This application has been filed with a prayer to quash the impugned order dated 20.1.2010, passed by the First Additional Sessions Judge, Bulandshahr in S.T. No. 649 of 2005, u/s 307, I.P.C. whereby the application for compounding the aforementioned offence has been rejected.

That facts in brief of this case are that the F.I.R. has been lodged by O.P. No. 2, Farid against the applicants on 23.5.2004 in Case Crime No. 367 of 2004 u/s 307, I.P.C. P.S. Kotwali Nagar, district Bulandshahr alleging therein that on 23.5.2004 at about 12''O clock in day, applicants came in a vehicle No. U.P.-14H-3030, their other associates were boarding in another Gypsy No. A.P.-04-0707, they overtook the motorcycle of the son of the first informant, and got his motorcycle stopped, the applicant Abdul Wahid was armed with rifle, both the applicants discharged shots, consequently, the injured sustained injury on his chest and arms, the applicants were apprehended on the spot alongwith their firearms, according to the medical examination report the injured Farid sustained firearm wound of entry on the left upper arm having its exit wound injury No. 2, after investigation the charge-sheet has been submitted u/s 307, I.P.C. on which the learned Magistrate concerned has taken cognizance, thereafter, the case has been committed to the court of Sessions where charge u/s 307, I.P.C. has been framed at the stage of the trial, the application has been moved by the applicants and O.P. No. 2 that the above mentioned offence may be compounded because its cross case S.T. No. 54 of 2007 has been decided in acquittal because the witnesses were declared hostile, on the basis of the medical examination report, offence u/s 324, I.P.C. is made out, the same may be compounded with the permission of the Court, the application moved by the applicant and O. P. No. 2 has been rejected by the Vth Additional Sessions Judge, Bulandshahr on 20.1.2010 by observing that the charge has been framed u/s 307, I.P.C., the same is non-compoundable, against the order dated 20.1.2010 present application has been filed by the applicants.

It is contended by the learned Counsel for the applicants that in the present case both the parties have entered into a compromise, there were cross cases, after compromise the evidence of the cross case was recorded in which all the witnesses of facts have been declared hostile. In the present case before entering into the compromise the statement of the witnesses of the facts have been recorded that is why they have supported the prosecution story. The accused of the cross case have been acquitted, in case the present case is not compounded, the applicants shall suffer irreparable loss. In support of the above contention Sri. A.B.L. Gaur, senior advocate cited the following cases :

I. Monu and Ors. v. State of U.P. 2007 (7) ADJ 39, in which the reliance has been placed by another brother Judge of this Court, in case of Madhavrao Jiwajirao Scindia and Ors. v. Sambhajirao Chandrojirao Angre and Ors. in which it was held by the Supreme Court that it is for the High Court to take into consideration any special feature, which appear in a particular case, to consider whether it is expedient and in the interest of justice to permit the prosecution to continue where in the opinion of the Court chance of ultimate conviction is bleak and therefore, no useful purpose is likely to be served by allowing the criminal prosecution to continue, the Court may quash the proceedings. Reliance has been made in the case of B.S. Joshi and Ors. v. State of Haryana XLVI (2003) ACC 779 : 2003 (2) ACR 1305 (SC).

II. Yahya Khan and Raziullah Khan v. State of U.P. LVI (2006) ACC 853 : 2007 (1) ACR 804, in which the prayer for re-summoning the witnesses on the basis of compromise of the applicant was allowed.

III. Sardar Avtar Singh Chhabra and Anr. v. State of U.P. and Anr. 2009 (5) ADJ 679 (LB), in which a complaint under Sections 323, 504, 506, 427, 406 and 420, I.P.C. and Section 3(1)(x) of S.C. & S.T. Act was quashed by another Bench of this Court.

IV. Manoj and Anr. v. State of M.P. JT 2008 (10) SC 506, in which the matter was compounded by altering the conviction from Section 307/34, I.P.C. to Section 324/34, I.P.C.

V. Manoj Sharma v. State and Ors. JT 2008 (11) SC 675, in which it has been held that in a very rare case the High Court can pass order in violation of the provisions of Code of Criminal Procedure even though as per certain decisions of the Apex Court power u/s 482, Code of Criminal Procedure cannot be exercised to do something which is expressly barred judgments cannot be read as Euclid''s formula and in rare and exceptional cases judicial activisms can be resorted to by the Court where situation warrants it in the interest of country or society.

VI. AIR 1988 2111 (SC) in which it has been held that it would be proper that the trial court should permit the parties to compound the offence permission to compound was granted by the Supreme Court in the facts of the case.

In view of the above mentioned cases it is contended that though the offence u/s 307, I.P.C. is not compoundable, but considering the facts and circumstances of the present case, where on the basis of the compromise another party has been acquitted the learned trial court committed an error by rejecting the application for compounding the offence, the impugned order is illegal the same may be set aside and the trial court may be directed to permit compounding of the above mentioned offence.

In reply to the above contention it is submitted by the learned A.G.A. that in the present case charge-sheet has been submitted u/s 307, I.P.C. the case has been committed to the Courts of Sessions and the charge-sheet has been submitted u/s 307, I.P.C., witnesses of facts have been examined before the Court concerned, they have supported the prosecution story, therefore, the provisions of compounding the offence in the Code of Criminal Procedure, 1973 which is enumerated in Section 320, Code of Criminal Procedure where a table has been given, Section 307, I.P.C. does not come under any table of the offence in which compounding may be done. There is a specific provision barring compounding of the offence in Section 320(9) of the Code of Criminal Procedure which is read as under:

No offence shall be compounded except as provided by this section.

The cases cited by the learned Counsel for applicants are having some peculiar feature in which interference has been made but in the present case there is no peculiar feature in which inherent power u/s 482, Code of Criminal Procedure may be exercised. The learned A.G.A. cited following cases:

I. Badrilal v. State of M.P. (2005) 7 SCC 55, the Apex Court has taken a view that on joint petition of compromise filed on behalf of the parties only bar has been made for recording the compromise the offence u/s 307, I.P.C. is not a compoundable one, compromise cannot be recorded but at the same time, it is well-settled that while awarding sentence the effect of compromise can be taken into consideration.

II. Bankat and Another Vs. State of Maharashtra, in which it has been held by the Apex Court that Sub-section (9) of Section 320, Code of Criminal Procedure specially provides that "no offence shall be compounded except as provided by this section" in view of the aforesaid legislative mandate only offence which are covered by table one or table two provided u/s 320, Code of Criminal Procedure may be compounded and the rest of the offence punishable under I.P.C. cannot be compounded.

It is submitted that in view of the above mentioned cases there is bar on compounding the offence according to Sub-section (9) of Section 320, Code of Criminal Procedure learned trial court has not committed any error in rejecting the application filed by the applicants and O.P. No. 2 for compounding the offence punishable u/s 307, I.P.C. The impugned order is not suffering from any illegality or irregularity, therefore, the prayer for quashing the same is refused.

Considering the facts, circumstances of the case, submission made by the learned Counsel for the applicants, learned A.G.A. and from the perusal of the record it appears that in the present case statement of the witnesses have been recorded by the trial court, thereafter, a joint application for compounding the offence u/s 307, I.P.C. has been filed by the applicants and O.P. No. 2, the same has been rejected, the cases cited by the learned Counsel for the applicants are not applicable in the present case because all the cases in which compounding was permitted in non-compoundable offence treating as special case because there is specific bar under Sub-section (9) of Section 320, Code of Criminal Procedure that no offence shall be compoundable except as provided by this section. But Section 307, I.P.C. is not mentioned in any of the table for compounding purpose. It is non-compoundable offence at the stage of trial, a charge may be altered, but in the present case it has not happened. There is specific bar in the Code of Criminal Procedure, it must be kept in mind at the time of exercise of inherent power that the power u/s 482, Code of Criminal Procedure may not be exercised where the offence is non-compoundable provided the facts and circumstances of the case are compelling to do so, to meet the ends of justice in a particular case, treating it a special case, the present case cannot be treated as a special case, for the purpose of exercising the power u/s 482, Code of Criminal Procedure in contrary to the provision of Code of Criminal Procedure, whereas it may be one of the consideration to the trial court for the purpose of drawing the final conclusion of the trial, the learned trial court has not committed any error in passing the impugned order, therefore, the prayer for quashing the impugned order dated 20.12.2010 is refused.

Accordingly this application is dismissed.