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Sri Samar Kumar Das-vs-The State Of West Bengal And Anr. on 10 February, 2004

Calcutta High Court Sri Samar Kumar Das-vs-The State Of West Bengal And Anr. on 10 February, 2004
Equivalent citations:(2004) 1 CALLT 575 HC
Author: A Bisi
Bench: A K Bisi

JUDGMENT

A.K. Bisi, J.

1. The instant revision application has arisen out of the judgment and order passed by the learned Additional Sessions Judge, Fast Track Court, Raiganj, Uttar Dinajpur on 27.6.2003 in Cr. Appeal No. 6/2001.

2. By the judgment and order impugned, the learned Additional Sessions Judge, Raiganj, dismissed the criminal appeal, preferred by the present petitioner, and upheld the order of conviction and sentence passed by the learned Judicial Magistrate, Raiganj, on 26.4.1999 in G.R. 1280/88. It appears from the materials on record that the learned Judicial Magistrate, Raiganj, convicted the present petitioner for the offence punishable under Section 498A of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for one year and to pay fine of Rs. 2000/- in default to suffer rigorous imprisonment for two months. On appeal preferred by the convict, presently the petitioner, the learned Additional Sessions Judge, Fast Track Court, Raiganj, upheld the order of conviction and sentence passed by the learned trial Court whereupon the present revisional application has been preferred by the petitioner.

3. The factual matrix leading to the conviction and sentence of the petitioner may briefly be narrated thus:

4. Smt. Namita Das, presently the opposite party No. 2 is the legally married wife of the present petitioner, Samar Kumar Das. After her marriage, she used to reside in her matrimonial home where her husband along with others started torturing her. Prior to marriage the petitioner is alleged to have taken dowry in cash and other articles and subsequently after marriage the mother and brother of the opposite party No. 2 wife, paid Rs. 11,000/- in cash but inspite of that torture upon her remained unabated. Subsequently, opposite party No. 2 wife, had to lodge a written complaint with the Inspector-in-Charge, Raiganj Police Station, whereupon the investigation was started and charge-sheet was submitted against the present petitioner and some of his family members.

5. After full trial on evidence the learned trial Court found the present petitioner/husband guilty of the offence punishable under Section 498A of the Indian Penal Code and convicted and sentenced him in the manner as indicated. As mentioned hereinbefore, the appeal preferred by the present petitioner/husband failed.

6. In course of hearing of the Instant revision application, a petition of compromise being CRAN 155/2004 has been filed by the petitioner/ husband and opposite party No. 2/wife in this Court wherein it has been averred, inter alia, that both the petitioner and his wife had settled their disputes between themselves on 25.11.2003 and affirmed an affidavit to that effect before the Notary on 29.11.03 copy of which is marked as annexure B to the said application.

7. It is submitted by Mr. De, learned advocate appearing for the petitioner that since the disputes between the husband and the wife had already been settled and the husband and wife have started living together, the compromise petition can be accepted and the petitioner/husband can be exonerated from the charge under Section 498A of the Indian Penal Code. It has been further urged by Mr. De that though the offence under Section 498A of the Indian Penal Code is non-compoundable in nature, in view of the ratio of decision of the Hon’ble Supreme Court in the case of B.S. Joshi and Ors. v. State of Haryana and Anr. , permission can be given

to the parties to compound the said non-compoundable offence and the order of conviction and sentence can be set aside. No argument has been advanced by Mr. De on merits of the revision application.

8. In the case of B.S. Joshi (supra) on page 1390 at para 10, the Hon’ble Supreme Court has pointed out that in the said case the wife filed an affidavit that the First Information Report was registered at her instance due to temperamental differences and implied imputations and there may be many reasons for not supporting the imputations. In the said case the wife had again started living with her husband with whom she earlier had differences or she had willingly parted company and was living happily on her own. It is in such context, the Hon’ble Supreme Court has held:

“Would it then be proper to decline to exercise power of quashing on the ground that it would be permitting the parties to compound non-corn pound able offences. Answer clearly has to be in ‘negative’. It would, however, be a different matter if the High Court on facts declines the prayer for quashing for any valid reasons including lack of bona fides.”

9. Mr. De has cited a single Bench decision of the Bombay High Court in Suresh Nathmal Rathi and Ors. v. State of Maharashtra and Anr. reported in 1992 Cri LJ 2106. In the said case, permission was sought to compound the offence punishable under Section 498A of the Indian Penal Code and there was no dispute between the parties and complainant-wife was leading happy married life. Considering the peculiar and special circumstances, permission to compound the offence under Section 498A of the Indian Penal Code which is basically a non-compoundable one was granted. Likewise in Mahesh Chand and Anr. v. State of Rajasthan , as cited by Mr. De on behalf of the

petitioner, the plea was put forward for seeking permission to compound the offence under Section 307 of the Indian Penal Code which is also a non-compoundable one. In the said case, the parties wanted to treat if as a special case in view of the peculiar circumstances of the case and there was a counter case arising out of the same transaction and that counter case has subsequently been compromised. In the above factual background the Hon’ble Supreme Court directed the trial Judge to accord permission to compound the offence after giving an opportunity to the parties and after being satisfied with the compromise agreed upon.

10. In my view the abovenoted decision cited by Mr. De are not at all applicable to the case in hand.

11. In the instant case, there is no dispute that both the petitioner/ husband and the opposite party No. 2/wife have started living together. This position is admitted by the learned advocate for the opposite party No. 2/wife. But the notorious fact emerging from the materials on record is that both the husband and wife settled their disputes as stated and started living together after the order of conviction and sentence passed by the learned trial Court was confirmed on appeal. To be more precise, the criminal appeal preferred by the present petitioner was dismissed by the learned Additional Sessions Judge, Raiganj on 27.6.2003 whereas as per the averments made in the compromise petition filed in this Court the parties settled their disputes between themselves on 25.11.2003 and they started living together since that date. This is a noticeable feature which must be taken into account while judging the entire matter in proper perspective.

12. It is significant to note in this context that the judgment of the Hon’ble Supreme Court in the case of Surendra Nath Mahanty and Anr. v. State of Orissa has been referred to on

page 1389 at para 9 of the case of B.S. Joshi (supra) where the Hon’ble Supreme Court has held as under:

“The High Court has also relied upon the decision in case of Surendra Nath Mahanty’s case (supra) for the proposition that offence declared to be non-compoundable cannot be compounded at all even with the permission of the Court. That is of course so. The offences which can be compounded are mentioned in Section 320. Those offences which are not mentioned therein cannot be permitted to be compounded. In Mohanty’s case, the appellants were convicted by the trial Court for offence under Section 307. The High Court altered the conviction of the appellants and convicted them for offence under Section 326 and imposed sentence of six months. The trial Court had sentenced the appellants for a period of five years Rigorous Imprisonment. The application for compounding was, however, dismissed by the High Court. This Court holding that the offence for which the appellants had been convicted was non-compoundable and, therefore, it could not be permitted to be compounded but considering that the parties had called their dispute outside the Court, the sentence was reduced to the period already undergone. It is, however, to be borne in mind that in the present case the appellants had not sought compounding of the offences. They had approached the Court seeking quashing of FIR under the circumstances abovestated.”

13. Having given my anxious consideration to the submissions made by the learned advocates for the parties and the legal position as mentioned above, I find that since the present petitioner has already been found guilty of the offence punishable under Section 498A of the Indian Penal Code and both the learned trial Court and the learned Additional Sessions Judge, have arrived at the concurrent findings resulting in conviction of the present petitioner, there can hardly be any scope to accord permission to compound the offence in view of the compromise petition filed by the parties in this Court. But since it is an admitted fact that the parties have started living together subsequently and the disputes between them are reported to have been settled afterwards, I think it expedient in the interest of justice to invoke the power under Section 360 of the Code of Criminal Procedure so that the petitioner can be released on probation of good conduct on his entering into a bond to appear and receive sentence when called upon to do so. Such power can be exercised by this Court in view of Sub-section (4) of Section 360 of the Code of Criminal Procedure.

14. Accordingly, the petitioner be released on probation of good conduct for a period of two years on his entering into a bond subject to satisfaction of the learned trial Court on condition to appear and receive sentence in case of violation of the terms of the bond when called upon during such period.

15. The petitioner is directed to appear before the learned trial Court and furnish bond to the satisfaction of the learned trial Court, Raiganj, within two months from this date and the learned trial Court on due consideration will accept the bond and release the petitioner on probation of good conduct for a period of two years in the manner as already stated.

The revision application is allowed in part only to the above extent.

In view of the above order the compromise petition being CRAN 155/2004 is also disposed of.

Let copies of this order be sent down to the learned Additional Sessions Judge, Fast Track, Raiganj and learned Judicial Magistrate, Raiganj forthwith.

Urgent certified xerox copy of this judgment, if applied for, be granted to the parties as expeditiously as possible.

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