Santosh Kumar Sahu vs State Of Chhattisgarh

Petitioners have filed this petition under Section 482 of Cr.PC seeking following reliefs :-

“(1). This Hon'ble Court may kindly be pleased to set-aside/quash the order dated 26.03.2021 (Annexure A-1) and compound the offence under Sections 498-A/34 of IPC on the basis of the compromise arrived between the parties.

(2). This Hon'ble Court may kindly be pleased to quash the criminal proceeding pending against the applicants on the basis of compromise arrived at between the parties, in the interest of justice.”

Facts relevant for disposal of this petition are that FIR bearing No.268/2014 for offence punishable under Section 498-A/34 of IPC was registered against the petitioners. After investigation, Police submitted charge-sheet for aforementioned offence against the petitioners. Charge was framed and after conclusion of trial, learned Magistrate vide judgment dated 29.01.2020 (Annexure P-3), convicted the petitioners for offence punishable under Section 498-A of IPC and sentenced each of them to undergo RI for six months and fine of Rs.100/-. Against judgment of conviction, petitioners preferred an appeal before Sessions Court, Janjgir-Champa. During pendency of appeal, applicant No.1 entered into settlement with complainant/non-applicant No.2 and written settlement deed was also executed and thereafter application under Section 320 (8) of Cr.PC was filed before Appellant Court on 26.03.2021. As offence under Section 498-A of IPC is non-compoundable, Court below rejected said application vide order impugned.

Learned counsel for petitioners submits that during pendency of appeal before Court of learned Sessions Judge, Janjgir-Champa, settlement is arrived between the parties for which settlement deed was also executed. In settlement deed, it is mentioned that parties agreed to file an application under Section 13(B) of Hindu Marriage Act, 1955 for mutual divorce, and complainant/Non-applicant No.2 will compromise in pending Criminal Appeal No.18/2022. He contended that as of now the dispute between the parties is resolved, therefore this petition be allowed, and order dated 26.03.2021 (Annexure A-1) passed by Second Additional Sessions Judge rejecting the application under Section 320 (8) & 320 (2)(5) of Cr.PC be set- aside/quash and further permit to compound the offence under Section 498-A/34 of IPC and to quash the criminal proceeding. In support of his contention, he places reliance upon decisions of Co-ordinate Bench of this Court passed in Criminal appeal No.660/22 & Criminal Appeal No.746/22 decided on 02.03.2023.

Learned State Counsel opposing submissions of counsel for petitioners, would submit that trial Court has already passed judgment of conviction appreciating evidence brought on record by respective parties, hence, no relief as prayed for by petitioners in this petition can be granted.

Heard learned counsel for the respective parties and perused record.

Admittedly, petitioners were charged for offence punishable under Section 498-A/34 of IPC and after full-fledged trial, learned trial Court passed judgement of conviction sentencing each of the petitioners to undergo six months RI and fine of Rs.100/-. Against judgment of conviction, petitioners have preferred Regular Criminal Appeal before Sessions Court, Janjgir-Champa which is pending consideration. During pendency of appeal, an application is filed under Sections 320 (8) of Cr.PC. Section 320 deals with compounding of offence in which a table is provided mentioning nature of offences punishable under sections mentioned therein to be compounded with or without permission of Court, and therefore, provision of Section 320 will apply to the offences as mentioned there under. Relevant provision under Section 320 of Cr.PC is extracted below :-

“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 :-

(2) – 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”

Under both the above mentioned provisions Section 498-A is not mentioned therefore the offence under Section 498-A is non-compoundable offence. Section 320 (9) in clear terms mentions that, no offence shall be compounded except as provided by this Section, meaning thereby no offence other than mentioned in table under Section 320(1) or 320(2) can be compounded under Section 320. In the afore-mentioned facts of the case, learned Sessions Court has not erred in dismissing the application filed under Section 320(8) of Cr.P.C.

The relief sought in this petition is also of quashing criminal proceedings. The learned Magistrate on appreciation of evidence has passed judgment of conviction. The question for consideration therefore is whether in exercise of the jurisdiction under Section 482 Cr.P.C judgement of conviction can be set aside pending appeal before the Court of Session.

Hon'ble Supreme Court in case of Manohar Singh versus State of Mahdya Pradesh & Anr reported in (2014) 13 SCC 75, while dealing with identical situation has observed thus :-

“8. In the instant case, the appellant is convicted under Section 498-A IPC and sentenced to undergo six months' imprisonment. He is convicted under Section 4 of the Dowry Act and sentenced to undergo six months' imprisonment. Substantive sentences are to run concurrently. Even though the appellant and respondent No.2 wife have arrived at a compromise, the order of conviction cannot be quashed on that ground because the offences involved are non-compoundable. However, in such a situation if the court feels that the parties have a real desire to bury the hatchet in the interest of peace, it can reduce the sentence of the accused to the sentence already undergone. Section 498-A IPC does not prescribe any minimum punishment. Section 4 of the Dowry Act prescribes minimum punishment of six months but proviso thereto states that the court may, for adequate or special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which may be less than six months. Therefore, sentence of the appellant can be reduced to sentence already undergone by him.

Now the question is whether a case for reduction of sentence is made out particularly when the appellant has undergone only seven days' sentence out of six months' sentence imposed on him. We see no reason why in this case we should not reduce the appellant’s sentence to sentence already undergone by him. There can be no doubt about the genuine nature of compromise between the appellant and respondent No.2 wife. The appellant has offered to pay a sum of Rs.2,50,000/- to respondent 2 wife as compensation. A demand draft drawn in the name of respondent is brought to the Court. As directed by us even litigation costs of Rs.25,000/- has been deposited by the appellant in the Court. Respondent 2 wife has appeared in this Court on more than one occasion and requested this Court to take compromise into consideration and pass appropriate orders. The learned counsel for the parties have requested us to take a kindly view of the matter. The affidavit filed by the State of Madhya Pradesh opposing the prayer of the parties does not impress us.

We must also note that the trial court had acquitted the appellant. Thought the Sessions Court reversed the order and convicted the appellant for two years, the High Court reduced the sentence to six months. The appellant and Respondent 2 were married in 2007. About seven years have gone by. Considering all these circumstances, in the interest of peace and amity, we are of the opinion that the appellant's sentence must be reduced to the sentence already undergone by him.

In the circumstances, the appeal is partly allowed. The conviction of the appellant under Section 498-A IPC and under Section 4 of the Dowry Act is maintained but the sentence awarded to the appellant is reduced to the sentence already undergone by him, subject to the condition that the appellant pays a sum of Rs.2,50,000/-(Rupees two lakh fifty thousand only) to respondent 2 wife as compensation. The impugned order stands modified to the above extent. We must not that a demand draft in the sum of Rs.2,50,000/- drawn in the name of respondent 2 Reena has been handed over to her counsel by the learned counsel for the appellant on 18-7-2014. In view of this, bail bond of the appellant, if any, stands discharged.”

In the facts and circumstances of the case, where the applicants have been convicted by trial Court and appeal is pending consideration before Sessions Court, no relief as prayed for by petitioner can be granted to them in this petition.

In case of Bajrang Yadav & Ors vs State of Chhattisgarh and Ors (CRMP No.1030/2018) decided on 12.01.2021, High Court considered the issue whether petition under Section 482 of Cr.PC on behalf of the convict of non-compoundable offence(s) during pendency of the criminal appeal, conviction of the applicants/petitioners therein can be set aside on the ground that settlement is arrived between complainant and convict and considering the decision of High Court of Bombay (Bench at Nagpur) in case of Sau Maya Sanjay Khandare & Anr vs State of Maharashtra decided on 05/01/2021, held that the petitioner therein failed to make out the case in terms of the decision in case of Sau Maya Sanjay Khandare (supra) and observed that the compromise will be considered by the Appellate Court.

In the case at hand also the ground for invoking jurisdiction of Court under Section 482 of Cr.PC during pendency of appeal before Sessions Court is that during pendency of appeal parties entered into compromise. No exceptional facts is pleaded or argued before this Court.

Considering above facts of the case, submissions of counsel for the respective parties, documents available on record, decisions of Hon'ble Supreme Court in cases of Manohar Singh (supra), and the fact that criminal appeal is pending before Sessions Court, this Court is of the opinion that learned Court below has not committed any error in dismissing application of petitioners filed under Sections 320 (8) of Cr.PC in the facts of the case because the Session Court is having the powers as provided under Section 320 of the Code only and not beyond that. The Session Court is yet to decide the appeal on merits and while deciding the appeal on merits appreciating the evidence may, on appreciation of evidence can also set aside the judgement of conviction and if not can consider the compromise arrived between the parties for the purpose of modifying the sentence awarded accordingly.

Orders which are sought to be relied upon by counsel for petitioners ie Criminal Appeal No.660/22 & Criminal Appeal No. 746/22, are of no help being distinguishable on facts.

Accordingly, petition is hereby dismissed. The learned Appellate Court will be at liberty to decide the appeal as observed above keeping in mind the decision of Hon'ble Supreme Court in case of Manohar Singh (supra).

CC as per rules.