Gokula Malik @ Mallik And Ors vs State Of Odisha Vs

Savitri Ratho, J

This application under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 has been filed for quashing the order dated 20.03.2025 passed by the learned Additional Sessions Judge -cum- Special Judge, Jajpur Road, in C.T. Special Case No. 144 of 2018 corresponding to Korei P.S. Case No. 161 of 2018 against the petitioners on the ground of compromise between the parties.

The petitioners and the opposite party -informant, Rodani Malik, are co-villagers residing in Village Gopalpur, under Korei Police Station, in District Jajpur, Odisha. There is no blood or family relationship between the parties; however, they are members of the same local community.

ALLEGED OFFENCE

The petitioners are charged under Sections 294/323/341 /354/452/506/34 of IPC read with Section 3(l)(r)(s)/3(2)(va) of the Sc & ST (POA) Act.

BACKGROUND

On 18.08.2018, FIR has been registered by the informant stating that the petitioners and the informant are the co-villagers. The son of the informant had got a work order from the block for construction of the village road. On this issue the petitioners and the son of the informant had a heated exchange of words. It is alleged by the informant that thereafter the petitioners came to the house of the informant and abused her and her family members in filthy language by casting aspersion on her caste, assaulted her and threatened her with dire consequences. So informant has lodged FIR against the petitioners, leading to registration of Korei P.S. Case No. 161 of 2018 against the petitioners. After completion of investigation, chargesheet was submitted.

Charge was framed against the petitioners under Section 294/323/451/506/34 of IPC read with Section 3(l)(r)(s)/3(2)(va) of the SC & ST (POA) Act. After some witnesses had been examined, on the intervention of the villagers, the matter was amicably settled between the petitioners and the family of opposite party No.2. So an application under Section 311 of the Cr.P.C. It was filed in the learned trial court to recall P.Ws.2 to 7 and a compromise petition was also filed.

IMPUGNED ODER

On 20.03.2025, the learned Special Judge, Jajpur Road rejected the application of the petitioner under Section 311 of Cr.P.C. to recall P.Ws. 2 to 7 for further cross-examination on the ground of compromise made earlier, holding that the witnesses cannot be recalled for further cross-examination on the ground of compromise. By the same order, the learned trial Court partly allowed the co-accused persons and acquitted the petitioner of the offence under Sections 323, 451, and 506 of IPC as they are compoundable but directed they will face trial for the rest of the offences.

SUBMISSIONS

Mr. Arijeet Mishra, learned counsel for petitioners submits that during pendency of the CRLMC the matter has been amicably settled between the parties who are co-villager for which the opposite party no.2 does not want to proceed against the petitioners any further.

Mr. Deepak Mulia, learned counsel for the Opposite Party No.2.-Complainant, submits that the Petitioners and the Opposite Party No.2 settled the matter amicably and they have also filed a joint affidavit in Court today in support of the amicable settlement. He submits that they are living a happy peaceful life in the village without any dispute and amicable relations are prevailing between them.

Mr. Mishra, learned counsel for the Petitioners and Mr. D. Mulia, learned counsel on behalf of the Opposite Party No.2 submit that the parties had come to Court for swearing the joint affidavit before Oath Commissioner regarding their amicable settlement and are present in Court today. The complainant - opposite party no.2 is identified by Mr. Mulia, learned counsel and submits that she had submitted FIR against the accused person, but now the matter has been settled between them and they are staying together in the village peacefully without any disturbance.

Mr. S.J. Mohanty, learned Additional Standing Counsel produces the instructions dated 24.05.2025 of the Inspector-in-charge, Korei Police Station who has stated that he verified the compromise petition between the accused persons and the complainant and the co-complainant had informed in writing about the settlement which is attached to the instructions. Mr. Mohanty, learned counsel however submits that there is no error in the impugned order as non-compoundable offences could not have been compounded by the learned trial court nor witnesses could be recalled for cross examination on the ground of compromise.

STATUTORY PROVISIONS

Section 320 and Section 482 Code of Criminal Procedure are extracted below:-

“Section 320 -  Compounding of offences –

(1) The offences punishable under the sections of the Indian Penal Code (45 of 1860) specified in the first two columns of the Table next following may be compounded by the persons mentioned in the third column of that Table:-

XXX XXX XXX

The offences punishable under the sections of the Indian Penal Code (45 of 1860), specified in the first two columns of the table next following may, with the permission of the Court before which any prosecution for such offence is pending, be compounded by the persons mentioned in the third column of that table:-

XXX XXX XXX

When an offence is compoundable under this section, the abetment of such offence or an attempt to commit such offence (when such attempt is itself an offence) or where the accused is liable under section 34 or 149 of the Indian Penal Code, may be compounded in like manner.

– (a) When the person who would otherwise be competent to compound an offence under this section is under the age of eighteen years or is an idiot or a lunatic, any person competent to contract on his behalf, may, with the permission of the Court compound such offence.

(b) When the person who would otherwise be competent to compound an offence under this section is dead, the legal representative, as defined in the Code of Civil Procedure, 1908 (5 of 1908) of such person may, with the consent of the Court compound such offence.

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.

A High Court or Court of Session acting in the exercise of its powers of revision under section 401 may allow any person to compound any offence which such person is competent to compound under this section.

No offence shall be compounded if the accused is, by reason of a previous conviction, liable either to enhanced punishment or to a punishment of a different kind for such offence.

The composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded.

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

“Section  482.  Saving  of  inherent  powers  of  High Court.

“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.”

JUDICIAL PRONOUNCEMENTS

The decisions of the Supreme Court in the following cases are relevant for deciding this application.

In the case of Gian Singh vs. State of Punjab : 2012 (10) SCC 303, a two Judge Bench of the Supreme Court had referred the matter to a larger Bench by observing as follows :-

“Heard learned counsel for the petitioner.

The petitioner has been convicted under Section 420 and Section 120B, IPC by the learned Magistrate. He filed an appeal challenging his conviction before the learned Sessions Judge. While his appeal was pending, he filed an application before the learned Sessions Judge for compounding the offence, which, according to the learned counsel, was directed to be taken up along with the main appeal. Thereafter, the petitioner filed a petition under Section 482, Cr.P.C. for quashing of the FIR on the ground of compounding the offence. That petition under Section 482 Cr.P.C. has been dismissed by the High Court by its impugned order. Hence, this petition has been filed in this Court.

Learned counsel for the petitioner has relied on three decisions of this Court, all by two Judge Benches. They are B.S. Joshi vs. State of Haryana (2003) 4 SCC 675; Nikhil Merchant vs. Central Bureau of Investigation and Another (2008) 9 SCC 677; and Manoj Sharma vs. State and Others (2008) 16 SCC 1. In these decisions, this Court has indirectly permitted compounding of non-compoundable offences. One of us, Hon’ble Mr. Justice Markandey Katju, was a member to the last two decisions.

Section 320,  Cr.P.C.  mentions certain  offences  as compoundable, certain other offences as compoundable with the permission of the Court, and the other offences as non- compoundable vide Section 320(7).

Section 420, IPC, one of the counts on which the petitioner has been convicted, no doubt, is a compoundable offence with permission of the Court in view of Section 320, Cr.P.C. but Section 120B IPC, the other count on which the petitioner has been convicted, is a non-compoundable offence. Section 120B (Criminal conspiracy) is a separate offence and since it is a non-compoundable offence, we cannot permit it to be compounded.

The Court cannot amend the statute and must maintain judicial restraint in this connection. The Courts should not try to take over the function of the Parliament or executive. It is the legislature alone which can amend Section 320 Cr.P.C.

We are of the opinion that the above three decisions require to be re-considered as, in our opinion, something which cannot be done directly cannot be done indirectly. In our, prima facie, opinion, non-compoundable offences cannot be permitted to be compounded by the Court, whether directly or indirectly. Hence, the above three decisions do not appear to us to be correctly decided.

It is true that in the last two decisions, one of us, Hon’ble Mr. Justice Markandey Katju, was a member but a Judge should always be open to correct his mistakes. We feel that these decisions require re-consideration and hence we direct that this matter be placed before a larger Bench to reconsider the correctness of the aforesaid three decisions.

Let the papers of this case be placed before Hon’ble Chief Justice of India for constituting a larger Bench.”

The three judge bench of the Supreme Court after referring to a number of its earlier decisions, answered the reference holding as follows :-

“57. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a 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 or 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 statutes 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 proceeding 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.”

In the case of Parbatbhai Aahir Alias Parbathbhai Bhimsinhbhai Karmur and Others vs. State of Gujrat and Another, 2017 (9) SCC 641: AIR 2017 Supreme Court 4843, a three- Judge Bench of the Supreme Court refused to quash the proceedings holding that the appellants had criminal antecedents and were grabbing parcels of lands by opening bogus bank accounts. The allegations involved extortion, forgery and conspiracy and were acting as a team for which it would not be in the interest of society to quash the proceedings. After discussing its earlier decisions, it summarised the broad principles for exercise of power under Section 482 of the Crl.P.C. as follows :-

“16. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions:

16.1. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court.

16.2. The invocation of the jurisdiction of the High Court to quash a first information report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.

16.3. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power.

16.4. While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised (i) to secure the ends of justice, or (ii) to prevent an abuse of the process of any court.

16.5. The decision as to whether a complaint or first information report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated.

16.6. In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences.

16.7. As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing insofar as the exercise of the inherent power to quash is concerned.

16.8. Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute.

16.9. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and

16.10. There is yet an exception to the principle set out in propositions 16.8. and 16.9. above. Economic offences involving the financial and economic well-being of the State have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.”

In the case of Ramawatar vs. State of Madhya Pradesh : 2021 INSC 664, (2021) 10 SCR 499 : 2021 SCC OnLine SC 966, the appellants had been convicted by the learned trial court under Section  3(1)(x)  of  the  SC/ST  Act  and  sentenced  to  undergo  the consequential sentence of six months rigorous imprisonment and to pay  a  fine  of  Rs.  1000/-.and  their  appeal  against  conviction  had been dismissed by the High Court. The convict died during pendency of the appeal before the High Court. During pendency of the  appeal  before  the  Supreme  Court,  the  parties  had  settled  the

matter amongst themselves and had filed an application for compromise. By invoking their power under Article – 142 of the Constitution of India, the Supreme Court quashed the criminal proceedings. While doing so, the Supreme Court puta caveat that power under Article – 142 or Section 482 can be exercised where an appeal is pending before  one or the other judicial forum. The relevant paragraphs of the judgment are extracted below :

“18. We may hasten to add that in cases such as the present, the Courts ought to be even more vigilant to ensure that the complainant victim has entered into the compromise on the volition of his / her free will and not on account of any duress. It cannot be understated that since members of the Scheduled Caste and Scheduled Tribe belong to the weaker sections of our country, they are more prone to acts of coercion, and therefore ought to be accorded a higher level of protection. If the Courts find even a hint of compulsion or force, no relief can be given to the accused party. What factors the Courts should consider, would depend on the facts and circumstances of each case.

Having considered the peculiar facts and circumstances of the present case in light of the afore-stated principles, as well as having meditated on the application for compromise, we are inclined to invoke the powers under Article 142 and quash the instant Criminal proceedings with the sole objective of doing complete justice between the parties before us. We say so for the reasons that:

Firstly, the very purpose behind Section 3(1)(x) of the SC/ST is to deter caste-based insults and intimidations when they are used with the intention of demeaning a victim on account of he/she belonging to the Scheduled Caste/ Scheduled Tribe community. In the present case, the record manifests that there was an undeniable pre-existing civil dispute between the parties. The case of the Appellant, from the very beginning, has been that the alleged abuses were uttered solely on account of frustration and anger over the pending dispute. Thus, the genesis of the deprecated incident was the afore-stated civil/property dispute. Considering this aspect, we are of the opinion that it would not be incorrect to categorise the occurrence as one being overarchingly private in nature, having only subtle undertones of criminality, even though the provisions of a special statute have been attracted in the present case.

Secondly, the offence in question, for which the Appellant has been convicted, does not appear to exhibit his mental depravity. The aim of the SC/ST Act is to protect members of the downtrodden classes from atrocious acts of the upper strata of the society. It appears to us that although the Appellant may not belong to the same caste as the Complainant, he too belongs to the relatively weaker/backward section of the society and is certainly not in any better economic or social position when compared to the victim. Despite the rampant prevalence of segregation in Indian villages whereby members of the Scheduled Caste and Scheduled Tribe community are forced to restrict their quartes only to certain areas, it is seen that in the present case, the Appellant and the Complainant lived in adjoining houses. Therefore, keeping in mind the socio-economic status of the Appellant, we are of the opinion that the overriding objective of the SC/ST Act would not be overwhelmed if the present proceedings are quashed.

Thirdly, the incident occurred way back in the year 1994. Nothing on record indicates that either before or after the purported compromise, any untoward incident had transpired between the parties. The State Counsel has also not brought to our attention any other occurrence that would lead us to believe that the Appellant is either a repeat offender or is unremorseful about what transpired.

Fourthly, the Complainant has, on her own free will, without any compulsion, entered into a compromise and wishes to drop the present criminal proceedings against the accused.

Fifthly, given the nature of the offence, it is immaterial that the trial against the Appellant had been concluded.

Sixthly, the Appellant and the Complainant parties are residents of the same village and live in very close proximity to each other. We have no reason to doubt that the parties themselves have voluntarily settled their differences. Therefore, in order to avoid the revival of healed wounds, and to advance peace and harmony, it will be prudent to effectuate the present settlement.”

DISCUSSION AND CONCLUSION

It is not disputed that the offences sought to be quashed are not compoundable under Section 320 of the Cr.P.C. as they are not included in the list of offences in Section 320(1) or Section 320(2). Therefore there is no illegality in the order of the learned trial court, as it could not have allowed the compromise in respect of the offences which are not compoundable under Section 320 of Cr.P.C. nor recalled the witnesses on the ground of compromise.

In  the  present  case,  the  petitioners  and  the  informant’s family are co-villagers. As the son of the informant got a contract in which the petitioners were interested, there was exchange of hot words with the son of the petitioner after which the petitioners entered into the house of the informant and abused and threatened her and her family members by referring to their caste. It is therefore apparent that the dispute did not relate to the caste of the informant but to the contract which her son. It was more of a business rivalry. The dispute was personal in nature and no element of public interest is involved.

This case will therefore not fall in the category, which the Supreme Court in the case of Ramawatar (supra) has said should not be quashed in exercise of power under Section 482 of the Cr.P.C.

Considering the submissions made by the learned counsel for the respective parties, the fact that the dispute has been amicably settled between the parties who are co villagers and are now residing peacefully in the village, and as the Opposite Party No.2 is no longer interested in pursuing the case against the petitioners, the decisions on of the Supreme Court in the cases of Gian Singh (supra) and Ramwatar (supra), I am of considered view that it would be in the interest of justice to quash the proceedings in exercise of inherent power.

The proceeding against the petitioners in C.T. Case No.144 of 2018 in the Court of learned Additional Sessions Judge -cum-Special Judge, Jajpur Road, arising out of Korei P.S. Case No.161 of 2018 pending before is quashed.

The CRLMC is accordingly disposed of.

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