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Jitendra Manohar Dixit And Anr.-vs-Gopal Babulal Upadyay And Ors. on 16 April, 2001

Bombay High Court Jitendra Manohar Dixit And Anr.-vs-Gopal Babulal Upadyay And Ors. on 16 April, 2001
Equivalent citations:(2002) 104 BOMLR 313
Author: R Batta
Bench: R Batta

JUDGMENT

R.K. Batta, J.

1. Rule. With the consent of learned Advocates for the parties, heard forthwith.

2. In this petition filed under Article 226 of the Constitution of India read with Section 482 of the Criminal Procedure Code, the petitioners seek quashing of and setting aside First Information Report and consequently, proceedings in Criminal Case No. 589 of 1999 pending before the Judicial Magistrate, First Class, Nagpur. The case of the petitioners is that their marriage was solemnized on 24.12.1998 and due to the misunderstanding between the petitioners and family members of the petitioners, several cases were filed. According to the petitioners, since the matter is compromised and as the offence under Section 498A of the Indian Penal Code is not compoundable, the extraordinary jurisdiction of this Court is invoked to secure the ends of justice. In Criminal Case No. 589 of 1999 complaint was filed by respondent No. 1 who is brother of petitioner No. 2 for offence under Sections 323, 395, 498A, 506 and 147 read with Section 149 of the Indian Penal Code as also under Section 4 of the Dowry Prohibition Act. Case No. 797 of 99 was filed by respondent No. 2 who is father of petitioner No. 1 for offences under Sections 323, 427, 506 and 147 read with Section 149 of the Indian Penal Code. Besides these criminal cases, the petitioner No. 2 has filed a petition for decree of nullity of marriage which is pending before the Family Court and the matter was compromised and both parties agreed to withdraw the allegations against each other and further agreed to file joint petition under Section 13-B of the Hindu Marriage Act for divorce by mutual consent. The petitioner No. 1 agreed to deposit Rs. 2,50,000/- towards past, present and future maintenance as permanent settlement and has deposited a sum of Rs. 2,21,000/-. The consent terms have been filed by the parties before the Family Court in Petition No. 88 of 1999. It is further alleged that the respondent Nos. 1 and 2 had given undertaking that they will extend co-operation to withdraw the criminal complaint. The offences under Sections 498A and 395 of the Indian Penal Code are not compoundable. Therefore, according to the parties, the matter cannot be finally settled and as such inherent powers should be exercised by this Court, to avoid harassment as also for the good of the society at large. According to them, this would also save valuable and precious time of this Honourable Court.

3. This petition is opposed by the State (respondent No. 3) on the ground that the offence under Sections 498A and 395 of the Indian Penal Code are not compoundable and the petition is liable to be rejected.

4. Learned Advocate for the petitioners, after placing reliance upon number of authorities, submitted that in the circumstances of the case, since the offences under Sections 498A and 395 of the Indian Penal Code are not compoundable and in the absence of compromise the entire settlement between the parties cannot take place, this Court in its inherent jurisdiction should quash the proceedings in Criminal Case No. 598 of 1999 pending before the Chief Judicial Magistrate, Nagpur. Learned Advocates for respondent Nos. 1 and 2 have adopted the arguments advanced by the learned Advocate for the petitioners. Learned A.P.P. while opposing the petition, has also placed reliance on number of rulings and has urged that the offences being non-compoundable. The question of quashing the proceedings would not arise.

5. The short question for decision is, whether writ jurisdiction or inherent jurisdiction of the High Court under Section 482 of the Criminal Procedure Code should be pressed into service for quashing the proceedings in cases where the offences are non-compoundable and the parties wish to settle the disputes between them by compromising the same. There is divergence of opinion amongst High Courts on this issue. The High Courts of Punjab and Haryana, Delhi High Court, Orissa High Court and Himachal Pradesh have taken a view that offence under Section 498A of the Indian Penal Code, though not compoundable, under Section 320 of the Criminal Procedure Code, can be allowed to be compounded by exercising inherent powers under Section 482 of the Criminal Procedure Code. On the other hand, the Full Bench of the Andhra Pradesh High Court; Full Bench of the Rajasthan High Court; Division Bench of the Madhya Pradesh High Court; High Court of Karnataka and learned Single Judge of the Bombay High Court, have taken the view that in the case of an offence under Section 498A of the Indian Penal Code which is non-compoundable under Section 320 of the Criminal Procedure Code, inherent powers cannot be exercised either to permit compromise or to quash proceedings on that count. Learned Advocate for the petitioners has taken the former view and the learned A.P.P. has pressed before me the later view.

6. I shall first deal with the view which is pressed into service by learned Advocate for the petitioners. Though the learned Advocate for the petitioners had placed reliance on the Division Bench judgment of the Andhra Pradesh High Court in Smt. Daggupati Jayalakshmi v. State 1993 Cri.L.J. 3162 : 1993 (3) All Cri.L.R. 317, yet the view taken therein has been held by the learned Single Judge of the Andhra Pradesh High Court in Annaamdevula Srinivasa Rao and Anr. v. State of A.P. and Ors. 1995 Cri.L.J. 3964, as view taken per incuriam. Subsequently, the Full Bench of the Andhra Pradesh High Court in Smt. Ghousia Sultana @ Ghousia Begum and etc. etc. v. Mohd. Ghouse Baig and Ors. 1996 Cri.L.J. 2973, has overruled the view taken by the Division Bench and has endorsed the view taken by the learned Single Judge. I shall discuss these authorities while discussing the other view put up before me by the learned A.P.P.

7. In Mohindeer Singh Khosla and Ors. v. State of Union Territory of Chandigarh and Ors. 1996 Cri.L.J. 1247 : 1992 All. L.J. 464, while dealing with the criminal case wherein offences under Sections 365, 384, 342 and 506 read with Section 34 of the Indian Penal Code were disclosed, it was found that the offences mentioned in the First Information Report were not compoundable, but the parties amicably settled their disputes and differences and in the interest of justice, exercising powers under Section 482 of the Criminal Procedure Code, the First Information Report was quashed. In this case it was pointed out that in Y. Suresh Babu v. State of A.P. 1987 (2) J.T. 361, an offence under Section 326 of the Indian Penal Code, which is non-compoundable, was allowed to be compounded by Their Lordships of the Supreme Court and similarly, in Mahesh Chand v. State of Rajasthan AIR 1988 SC 2111 : 1989 (1) J.T. 618 : 1989 Cr.L.J. 121. Their Lordships permitted the parties to compound the offence under Section 397 of the Indian Penal Code. However, it may be pointed out that the Apex Court in Ram Lal and Anr. v. State of J. & K. , has held that the judgments in Mahesh Chand v. State of Rajasthan (supra) and Suresh Babu v. State of A.P. (supra) were decisions rendered per incuriam. It was pointed out by the Apex Court that Section 320 provides two tables, one compoundable and the other compoundable with the permission of the Court and only such offences as are included in the two Tables can be compounded and none else. The Apex Court also pointed out that Sub-section (9) of Section 320 of the Code of Criminal Procedure, 1973 imposes a legislative ban in the following terms:

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

The judgment of the Apex Court in Ram Lal and Anr. v. State of J. & K. (supra) was followed in Surendranath Mohanty and Anr. v. State of Orissa , wherein it was held that an offence under

Section 326 of the Indian Penal Code is non-compoundable and compounding of the same is not permissible. Therefore, the basis of the judgment of the Punjab and Haryana High Court, wherein reliance was placed on the judgments in the case of Suresh Babu v. State of A.P. (supra) and Mahesh Chand v. State (supra) which have been held to be per incuriam in Ram Lal and Anr. v. State of J. & K. (supra) is shaken.

8. Learned Advocate for the petitioners has then placed reliance on the judgment of the Delhi High Court in Chain Sukh and Ors. v. State and Ors. (1999) C.C.R. 265, wherein the Delhi High Court was dealing with a criminal case under Sections 452, 323 and 506 read with Section 34 of the Indian Penal Code. Relying upon Smt. Daggupati Jayalakshmi v. The

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