Avinash Sawalka & Anr. vs State Of West Bengal & Anr.

Ananya Bandyopadhyay, J

The instant revisional application is filed by the petitioner praying for quashing of the proceedings being C.G.R. No. 2522/2008 pending before the Learned Judicial Magistrate, 7th Court, Alipore, South 24 Parganas arising out of Lake Police Station Case No. 188 of 2008 dated 26.07.2008 under Sections 324/114 of the Indian Penal Code and all orders passed therein.

Petitioners stated that on the basis of a purported statement of the opposite party no. 2 herein, the instant criminal case being Lake Police Station Case No. 188 of 2008 dated 26.07.2008 dated 26.07.2008 under Sections 324/114 of the Indian Penal Code was registered for investigation against the petitioners.

On conclusion of investigation, the Investigating Agency submitted a Charge-Sheet being Charge-Sheet No. 166/2008 dated 17.08.2008 under Sections 324/114 of the Indian Penal Code against the petitioners herein.

The said Charge-Sheet was filed before the Learned Chief Judicial Magistrate, Alipore, South 24 Parganas and by order dated 06.08.2009, the Learned Magistrate took cognizance of offences punishable under Sections 324/114 of the Indian Penal Code against the petitioners.

Petitioners submitted to be absolutely innocent and to have been falsely implicated in the instant case out of personal grudge and rivalry.

Petitioners submitted that the allegations in the impugned First Information Report, Charge-Sheet and the materials on record do not disclose the essential ingredients of the offences punishable under Sections 324/114 of the Indian Penal code and as such the impugned criminal proceedings pending against the present petitioners is not maintainable in law and is liable to be quashed.

Petitioners submitted that very initiation and/or continuation of the impugned proceedings against the present petitioners are wholly unfounded, without any basis and has occasioned a travesty of justice.

Petitioners submitted that further continuation of the impugned proceedings shall amount to an abuse of the process of the court and it is expedient in the interests of justice that the impugned proceedings and all orders passed therein be quashed and/or set aside in order to prevent the abuse of the process of the court or otherwise to secure the ends of justice.

Petitioners submitted that it is an apposite case where this Hon’ble Court may invoke its inherent powers under Section 482 of the Code of Criminal Procedure and quash and/or set aside the impugned proceedings and all orders passed therein to prevent the abuse of the process of the court or otherwise to secure the ends of justice.

During the pendency of the hearing of the instant criminal revisional application being CRR 1138 of 2014, the petitioner as well as the opposite party filed an application vide CRAN 2 of 2023 in order to effectuate a compromise to have been arrived by and between the parties with the permission of this Hon’ble Court.

It has been further contended that the intervention of friends and well wishers resolved the misunderstanding and discord between the parties and this Hon’ble Court exercising inherent powers under Section 482 of the Code of Criminal Procedure can quash the impugned proceedings on the basis of amicable settlement and or compromise between the parties.

At the outset it is to be clarified as to whether offences under Section 324 of the Indian Penal Code can be compounded after the promulgation of the Code of Criminal Procedure of the Amended Act, 2005.

In the instant case, the incident occurred on 25/26. 7.2008. The Learned Advocates for the both the parties submitted that the dispute between the parties have been amicably resolved and to continue with the impugned proceedings and/or trial shall be a futile exercise and thereafter the impugned proceedings are liable to be quashed.

It is further submitted neither any public property nor any public policy was involved in the nature of the allegations described against the petitioner nos. 1 and 2. The dispute between the parties are absolutely private in nature and this Court under Section 482 of the Code of Criminal Procedure can exercise powers to quash the impugned proceedings on the ground of amicable settlement arrived between the parties.

In the case of Bineesh Vs. State of Kerala 2012 SCC OnLine Ker 31734, it has been held as follows:

“4. The question is whether the said petition for permission to compound the offence under section 324 IPC is allowable after the coming into force of the Code of Criminal Procedure (Amendment) Act, 2005 (Act 25 of 2005) from 31.12.2009. If the answer is in the affirmative it would spare a consideration of this revision petition on merits as the composition of the offence will have the effect of an acquittal of the revision petitioners.

Certain facts and factors require compendious narration to answer the aforesaid question. Offences which are covered by the Table under sub-section (1) and the Table under subsection (2), of section 320 of the Cr.P.C. can be compounded by the person specified in third column of the said tables. The offences covered by the Table under sub-section (1) are compoundable without permission of the court and offences covered by the Table under sub-section (2) are compoundable only with the permission of the court. Evidently, offence under section 324 IPC was compoundable with permission of the court till the coming into force of the Code of Criminal Procedure (Amendment) Act, 2005 (Act 25 of 2005). Act 25 of 2005 brought in amendment to the Table appended to sub-section (2) of section 320 of Cr.P.C. so as to make the offence under section 324 IPC non- compoundable. Though Act 25 of 2005 was published on 23.6.2006 it was to take its effect only from the date of its notification. In this context, the decision of the Hon'ble Apex Court in Mathura Singh v. State of U.P., 2009 (2) KHC 759 assumes relevance. It was decided on 27.4.2009. Taking note of the fact that Act 25 of 2005 was not brought into force by notification, offence under section 324 IPC was held still compoundable, with the permission of the court. Later, it was notified on 31.12.2009. Thus, obviously, the offence under section 324 IPC became non- compoundable on 31.12.2009. But, the point to be decided is whether Cri.M.A. No. 2665 of 2012 filed jointly by the revision petitioners and the second respondent to whom hurt was caused, is allowable after the coming into force of Act 25 of 2005 on the ground that the offence under section 324 IPC was committed on 5.11.2007. The learned counsel for the petitioners relied on the decision of the Hon'ble Apex Court in Hirabhai Jhaverbhai v. State of Gujarat ((2010) 6 SCC 688) to canvass the position that the said offence being one committed when the offence under section 324 IPC was compoundable, can still be compounded with the permission of the court. That case was decided by the Hon'ble Apex Court on 9.4.2010.

I have heard the learned counsel for the petitioners, the learned counsel for the second respondent and also the learned Public Prosecutor.

The learned counsel for the petitioners laid emphasis, particularly on paragraph 5 of Hirabhai’s case (supra) that reads thus:-

“5. This Court finds that after coming into force of the Code of Criminal Procedure (Amendment) Act, 2005 from 23.6.2006 the offence under Section 324 IPC is made noncompoundable. However, in this case the offence under Section 324 IPC was committed on 23.7.1986 on which date it was compoundable with the permission of the court. As the Code of Criminal Procedure (Amendment) Act, 2005 is not applicable to the facts of the case, the offence under Section 324 IPC would be compoundable with the permission of the court.”

As a general rule, alterations in the form of procedure are retrospective in character in respect of all concerned pending matters unless there is some good reason or other why they should not be. In this case, I do not have to endeavour much on that issue in view of the decisions of the Hon'ble Apex Court in Mathura Singh's case (supra) and Hirabhai's case (supra). It was held in Hirabhai's case (supra) that the amendment brought into section 320(2) of the Cr.P.C. took its effect only from the date of notification. In fact, the Code of Criminal Procedure (Amendment) Act, 2005, (Act 25 of 2005) itself makes it clear that the amendments made thereunder would take effect only from the date of notification. In the decision in Hirabhai's case (supra) the date of commission of offence was 23.7.1986. Paragraph 5 extracted above would reveal that the Hon'ble Apex Court found that after the coming into force of the Code of Criminal Procedure (Amendment) Act, 2005 from 23.6.2006 the offence under section 324 IPC was made non-compoundable. A careful reading of paragraph 14 in Mathura Singh's case (supra) would set at naught the little doubt that may be created with respect to the date of coming into force of Act 25 of 2005.

“14. It requires to be noticed that the Cr.P.C. (Amendment) Act, 2005 (Act 25 of 2005) amended S.320 of the Code and in the table under sub-section (2)(a) the words "voluntarily causing hurt by dangerous weapons or means" in Column 1 and the entries relating thereto in Columns 2 and 3 have been omitted. But the said amendment by Act 25 of 2005 has not yet been brought into force. Therefore, the offence under S.324 IPC is still compoundable with the permission of the Court.”

As noted earlier, Mathura Singh's case (supra) was decided by the Hon'ble Apex court on 27.4.2009. Virtually, the Hon'ble Apex Court in both the aforesaid decisions held that an offence under section 324 IPC committed prior to the coming into force of Act 25 of 2005 would continue to be compoundable with the permission of the court. Act 25 of 2005 itself made it clear that the amendments brought in by that Amendment Act would take its effect only from the date of notification. Moreover, it is obvious from the decision in Hirabhai's case (supra) that the relevant factor deciding whether an offence under section 324 IPC is compoundable or noncompoundable is the date of its commission. The extracted portion of the decision "However, in this case the offence under section 324 IPC was committed on 23.7.1986 on which date it was compoundable with the permission of the court" would undoubtedly suggest that the answer to the question whether an offence under section 324 IPC could be compounded with the permission of the court, would depend upon the answer to the question whether on the date of commission of the offence it was compoundable with the permission of the court. Thus, the cumulative effect of the decisions of the Hon'ble Apex Court referred supra, constrain me to come to the conclusion that despite the coming into force of Act 25 of 2005 with effect from 31.12.2009 an offence under section 324 IPC could be compounded with the permission of the court if the date of commission of the said offence is prior to 31.12.2009. In that view of the matter, the offence in this case being one committed on 5.11.2007, I am of the considered view that the offence under section 324 IPC could be compounded by the second respondent on whom hurt was caused, with the permission of the court.

Now, the question whether Crl.M.A. No. 2665 of 2012 which carries the prayer for permission to compound the offence is to be allowed or not. The policy of law embodied in section 320 Cr.P.C. is to promote friendliness between the parties and to restore peace between them. In this case, the compromise duly verified by the parties that was brought on record through the said joint application would undoubtedly show that the second respondent, the person on whom hurt was caused, has volunteered to compound the offence with the revision petitioners. I am convinced that no rancour now rests in their hearts and as such, it is a fit case to grant permission to compound the offence. Resultantly, the offence under section 324 IPC against the revision petitioners is compounded and the conviction and sentence against them passed in C.C. No. 1140 of 2008 dated 31.8.2009 of the Judicial First Class Magistrate Court-1, Chengannur and confirmed by the judgment in Crl.A. No, 415 of 2009 of the Court of the Additional District & Sessions (Ad-Hoc) Judge, Mavelikkara are set aside. The composition of the offence shall have the effect of an acquittal of the revision petitioners with whom the offence has been compounded in terms of sub-section (8) of section 320 of Cr.P.C. The bail bonds, if any, will stand cancelled. If the revision petitioners had deposited any amount pursuant to the order dated 6.3.2012, the same shall be refunded to them on proper application.”

The Hon’ble Gauhati High Court in Prabhat Das v. State of Tripura 2013 SCC OnLine Gau 329, it has been held as hereunder.

“12. In the case of Hirabhai Jhaverbhai v. The State of Gujarat reported in (2010) 6 SCC 688: ((2010) 6 SCC 688: AIR 2010 SC 2321). The Apex court considered the same issue and in para 5 observed thus;-

"This Court finds that after coming into force of the Code of Criminal Procedure (Amendment) Act, 2005 from 23.06.2006 the offence under Section 324 IPC is made non-compoundable. However, in this case the offence under Section 324, IPC was committed on 23.07.1986 on which date it was compoundable with the permission of the Court. As the Code of Criminal Procedure (Amendment Act), 2005 is not applicable to the facts of the case, the offence under Section 324, IPC would be compoundable with the permission of the Court."

In both the above reported cases, the Apex Court considered that since the offence committed under Section 324 of IPC was before Amendment Act came into force, it was compoundable with the permission of the Court pursuant to the provisions prescribed under sub-section (2) of Section 320 of Cr.P.C. as was in force before the Code of Criminal Procedure Amendment Act, 2005 came into effect on 31.12.2009.

Relying on the law laid down by the Apex Court, the Hon'ble High Court of Kerala in the case of Bineesh, (2012 Cri LJ 4128) (supra) in almost under similar facts and circumstances of this case, allowed the petition by which the parties prayed for permission to compound the offence.

In the case at hand, the incident occurred on 21.02.2009. The Sessions Court ultimately found the convict-petitioners guilty of committing offence punishable under Section 447 and 324 of IPC. Section 447 is compoundable all along. Offence under Section

324 was compoundable before the Code of Criminal Procedure (Amendment Act), 2005 (Act 25 of 2005) came into force. Though the Act 25 of 2005 was published on 23.06.2006, it was stipulated that it shall come into effect only from the date of its notification. The Amendment Act was brought into force, by notification w.e.f. 31.12.2009. Evidently, on the date of occurrence, the offence under Section 324 of IPC was compoundable with the permission of the Court in view of the provisions prescribed in the table under Sub- section (2) of Section 320 of Cr.P.C.

The Amendment the date of notification. So, before the date of notification though the amendment was Act of 2005, intended to give effect w.e.f. made and published, it has no force and therefore, the provision which was existing before the date of coming into force and the Amendment Act shall operate. Normally in cases of all compoundable offences, compromise is centres to have a settlement of the dispute between the parties with a view to bring amity between the parties and to maintain peace and tranquillity Compromise, in all cases compoundable in nature, is for the benefit and welfare of the society as a whole and therefore, the Courts may encourage such compounding where the parties voluntarily come forward to do so.

In view of discussions made above, and the law settled down by the Apex Court, the petition made for permission to compound the offence is entertained and allowed.

In effect thereof as prescribed in sub-section (8) of Section 320 of Cr.P.C., the convict-appellant-petitioners are acquitted in view of the compounding of the offence and set at liberty.”

In the case of Shamsher Bahadur Singh Chandel @ Golend Singh Vs. State of M.P. I.L.R. (2014) M.P.,1393, it has been held as follows:

“4….Though the Amendment Act, 2005 was enacted in the year 2005 but it was further amended as Code of Criminal Procedure (Amendment) Amending Act, 2006) (hereinafter referred to as the Amending Act, 2006) whereby it has been enacted that "In exercise of the powers conferred by sub- section (2) of Section 1 of the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005), the Central Government hereby appoints the 23rd June, 2006, as the date on which the provisions of the said Act, except the provisions of Sections 16, 25, 28(a), 28(b), 38, 42(a), 42(b), 42(f)(iii) and (iv) and 44(a), shall come into force."

Learned counsel for the applicant has further submitted that after the aforesaid amendment, the notification of enforcement of Section 28(a) of the Amendment Act, 2005 came into force only on 31.12.2009 by the notification issued by the Ministry of Home Affairs Notification No. S.O. 3313(E), dated the 30th December, 2009. Published in the Gazette of India (Extraordinary) Part II Section 3(ii) dated 30.12.2009 Page 1 (Annexure D-6), therefore, the offence punishable under Section 324 of the IPC was compoundable till 31.12.2009 and in the instant case, the incident had taken place on 16.11.2006, thus, the trial Court has committed illegality in interpreting the aforesaid notification, therefore, the impugned order be set aside to the extent of compoundability of Section 324 of the IPC only.”

Prior to the amendment of Code of Criminal Procedure, 2005 the offence under Section 324 of the Indian Penal Code was compoundable in accordance to the provisions of Section 320 of the Criminal Procedure Code.

However, in view of the above discussions, the date of offence under Section 324 of the Indian Penal Code to have been committed on 26.07.2008 was prior to 31.12.2009, the date on which the Code of Criminal Procedure (Amendment Act), 2005 was notified, the offence under Section 324 of the Indian Penal Code was compoundable.

In view of the aforesaid discussions, CRAN 2 of 2023 is disposed of.

Accordingly, the proceedings being C.G.R. No. 2522/2008 pending before the Learned Judicial Magistrate, 7th Court, Alipore, South 24 Parganas arising out of Lake Police Station Case No. 188 of 2008 dated 26.07.2008 under Sections 324/114 of the Indian Penal Code and all orders passed therein are quashed.

The criminal revisional application being CRR 1138 of 2014 is allowed.

Accordingly, CRR 1138 of 2014 stands disposed of. Connected application, if there be any, also stands disposed of.

There is no order as to cost.

Let the copy of this judgment be sent to the Learned Trial Court as well the police station concerned for necessary information and compliance.

All parties shall act on the server copy of this judgment duly downloaded from the official website of this Court.