Chiman Singh and Others vs State of Rajasthan

Joshi, J.—The instant criminal miscellaneous petition has been preferred u/s 482 Cr.P.C. against the order dated 20th June, 2003 passed by the Additional Chief Judicial Magistrate, Bhim in criminal case No. 434/2002 "State v. Chiman Singh", whereby the application u/s 320 Cr.P.C. was rejected on the ground that the offence u/s 498A IPC is not compoundable and the case was fixed for recording the evidence on 10.7.2003.

It was contended by the learned counsel for the petitioner Mr. Sandeep Saruparia that the matter has been compromised and an application for permission to compound the offence u/s 498A IPC was submitted before the trial Court and such application ought to have been accepted and accused should have been acquitted of the charge levelled against him. He has therefore, prayed that the impugned order may be quashed and set aside as it is incorrect, illegal and improper.

The learned Public Prosecutor opposed the petition.

Section 498A IPC is not compoundable in view of the provisions of Section 320 Cr.P.C. and therefore, the trial court was competent to pass the impugned order. But, the question is whether it is expedient in the interest of justice that the proceedings be allowed to continue even the matter has been compromised?

Learned counsel for the petitioner has placed reliance on the decision of this Court in Govinda and Anr. v. State of Rajasthan, 2002 (2) WLC 438 and argued that the Court cannot under inherent powers direct appellate court to record compromise but, in view of the marital offence, order to quash proceedings can be made in the interest of peace between the parties since continuance of proceedings would only amount to abuse of process of the Court.

In Saleem and Ors. v. The State of Rajasthan and Ors., RLW 1998 (1) 202 it has been held that the Court has inherent powers to quash the proceedings, though the offence is not compoundable. Inherent powers can be exercised to prevent the abuse of the process or otherwise to secure the ends of justice. Though the offence u/s 498A IPC is not compoundable as per Section 320 Cr.P.C., but the Court is competent to quash the proceedings in exercise of its inherent jurisdiction.

In Manoj Kumar Vs. State of Rajasthan, this Court quashed the proceedings u/s 498A IPC in view of the compromise between the parties exercising its powers u/s 482 Cr.P.C. and proceedings of criminal case No. 137/97 u/s 498A, IPC pending in the court of A.C.J.M. No. 2, Jodhpur and the order of the learned District Judge, Jodhpur dated 12.6.1998 were quashed.

In Jai Kishan v. State of Rajasthan, RLR 2000(3) 451, the proceedings were quashed by the Court u/s 482 Cr.P.C. in view of the compromise between the parties for the offences u/s 498A and 406 IPC.

In Rameshwar v. State of Rajasthan, 2001 Cr.L.R. (Raj.)260 permission to compound offence u/s 498A IPC was granted by this Court in exercise of its inherent jurisdiction.

To the same effect is the judgment in Suresh Chand and Ors. v. State of Rajasthan, 1999(2) RCC 1153 and criminal proceedings u/s 498-A IPC were dropped u/s 482 Cr.P.C. by this Court.

In Ramsharan v. State of Rajasthan, 1996 RCC 349 it was held that no case u/s 498-A was made out on facts and therefore, proceedings were quashed and petitioner was discharged of the offence u/s 498-A IPC.

In Ramswaroop v. State of Rajasthan, 2001 Cr.L.R. (Raj.) 517, RLW 2001(4) Raj. 384, the wife started living with husband and performing her conjugal duties and with their union a female child was born. The Magistrate rejected compromise entered into between the appellant and wife on ground that the offence u/s 498-A is not compoundable. The order of Magistrate was set aside and criminal proceedings pending against husband before the trial Court were quashed by this Court exercising its jurisdiction u/s 482 Cr.P.C.

It was held in Ghanshyam Saini v. State of Rajasthan, 2001 Cr.L.R. (Raj.) 283 RLW 2000(2) Raj. 1067 that though the offence u/s 498-A IPC is not compoundable, yet it was thought by this Court to be a fit case to allow the compromise and appellate Court was directed to decide the appeal as matter having been compounded and pass necessary order and miscellaneous petition was disposed of.

In Kailash Chandra v. Basanti, 1989 Cri.L.J. 676 it was held that when the dispute was between husband and wife and after reconciliation, both the parties are residing peacefully as husband and wife and their relations are very cordial, it is proper that the trial Court should permit the parties to compound the offence u/s 498-A and 120B of the Indian Penal Code.

Per contra, in Mohan Singh v. State, 1993 Cr.L.J. 3193 it has been held that the offences which are not compoundable u/s 320(1) or (2) of Cr.P.C., permission cannot be granted by this Court in exercise of its inherent powers u/s 482 Cr.P.C. The judgment was delivered by a Full Bench of this Court referring several decisions on the point. It was further held that the principles that govern the exercise of inherent powers are as follows :-

"(i) That the High Court possesses the inherent power to be exercised ''ex debito justiae'' to do the real and substantial justice for the administration of which alone court exists. But, such powers do not confer any arbitrary jurisdiction on the High Court to act according to its whim or caprice;

(ii) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;

(iii) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party; and

(iv) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code."

It was held by the Apex Court in Ramlal v. State of Jammu and Kashmir, AIR 1999 SCW 2199, that the offence which is not compoundable u/s 320 Cr.P.C., cannot be made compoundable with permission of the Court. It was further held that an offence u/s 326 IPC, though not compoundable, but considering the fact that parties have come to settlement and victims were having no grievance against accused and latter having undergone imprisonment of about six months, sentence was reduced to the period already undergone. It was further held that the judgments of Y. Suresh Babu v. State of A.P., JT (1987) 2 (SC) and judgment in AIR 1988 2111 (SC) were held per inquriam, in which the permission was granted to compound the offence, which was not compoundable under the provisions of Section 320 Cr.P.C. Sub-section (9) of Section 320 Cr.P.C. imposes a legislative ban in the following terms:

"(9) no offence shall be compoundable except as provided by this Section."

Further, by a bench of three Judges, it was held by the Apex Court in Surendra Nath Mohanti v. State of Orissa-(C), that offence u/s 326 IPC is not compoundable under the provisions of Section 320 Cr.P.C. Therefore, the sentence was reduced to the period already undergone and the judgments rendered in Y. Suresh Babu v. State of A.P. (supra), Rampujan v. State of U.P. (supra), and Mahesh Chand v. State of Rajasthan (supra), were over-ruled. It was further held that judgment delivered in Y. Suresh Babu''s case (supra), was per inquriam. The reliance was placed on the case of Ramlal v. State of J and K, AIR 1999 SCW 566.

In the case of State of Himachal Pradesh Vs. Kartar Singh and Others, the orders of Sessions Judge allowing compounding of offence u/s 498 IPC was held beyond jurisdiction. However, the High Court u/s 482 Cr.P.C. permitted complainant to compound the matter in the interest of justice. It is relevant to mention here that the judgment is not in consonance with the judgments delivered by the Apex Court and the Full Bench of this Court.

In Jalaluddin Vs. State of U.P., it was held that offence u/s 326 IPC is not compoundable. However, being close relatives, sentence was reduced to the period already undergone.

In Raghunandan v. State of A.P., 2000(1) R.L.R. 301 conviction of the husband u/s 498 IPC was not disturbed and allowed to stand, but the sentence was reduced to the period already undergone as the wife approached the Court that she wished to live with her husband peacefully.

Recently, in B.S. Joshi and Others Vs. State of Haryana and Another, it was held by the Apex Court as under :-

"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, however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power.

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While exercising inherent power of quashing u/s 482, it is for the High 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. Where, in the opinion of the Court, chances of an ultimate conviction is 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 proceedings.

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The special features in such matrimonial matters are evident. It becomes the duty of the court to encourage genuine settlements of matrimonial disputes."

In the case in hand, it does not appear that the proposed settlement/compromise filed by the parties is not genuine.

Thus, looking to the Full Bench decision of this Court and the judgments rendered by the Hon''ble Supreme Court in B.S. Joshi''s case (supra), an offence (in this case Section 498-A), Which is though not compoundable under the provisions of Section 320 Cr.P.C. but, in the interest of justice to prevent the abuse of the process of the Court and to secure the ends of justice, the proceedings pending in the Court of learned Additional Chief Judicial Magistrate, Bhim in criminal case No. 434/2002 are liable to be quashed in exercise of inherent jurisdiction of the Court and are hereby quashed. The petition is accordingly allowed.