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Saturday, November 30, 2013

Whether the high court can compound the offence under sec.307 I.P.C on compound of parties - Apex court held No = State of Rajasthan .. Appellant Versus Shambhu Kewat and Another .. Respondents = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=41024

Whether the high court can compound the offence under sec.307 I.P.C on compound of parties - Apex court held No =
 The  Sessions  Court,  after  hearing  the
parties and  considering  the  oral  and  documentary  evidence,  found  the
accused persons guilty of the offence  punishable  under  Section  307  read
with Section 34 IPC, but acquitted them of the rest  of  the  charges,  vide
its order  dated  9.7.2009.   

 The High Court examined the scope of Sections  482  and  320
CrPC and expressed  the  view  that  there  are  certain  similarities  and
differences between compounding  and  quashing  a  case  on  the  basis  of
compromise and hence, quashing of a criminal proceeding upon  a  compromise
is well within the discretionary power of the Court. 
 It also  opined  that
while the power under Section 320 CrPC is cribbed,  cabined  and  confined,
the power under Section 482 CrPC is vast, unparallel  and  paramount.    On
facts the High Court opined that it was a case where the fight between  the
parties had occurred on the spur and heat of the moment and the assault was
more a crime ‘against an individual’, rather than ‘against the  society  at
large’.    The High Court held as follows:
      “In the present case, the fight occurred at the spur of the moment  in
      the heat of the moment.  According to the prosecution, both the  sides
      were verbally fighting  when  alleged,  the  appellants  struck  Abdul
      Rashid (PW-3).  The assault was more a  crime  against  an  individual
      than against the society at large.  Admittedly, both the parties  have
      entered into a compromise.   They  have  resolved  their  differences.
      Thus, it would be in the interest of justice to allow the appeal.”

5.    The High Court felt  that  since  the  parties  had  entered  into  a
compromise and resolved their disputes and differences, it would be in  the
interest of justice to allow the appeal.    Consequently,  the  appeal  was
allowed and the  accused  persons  were  acquitted  of  the  offence  under
Sections 307 read with 34 IPC.   =          

Criminal  law  is
designed as a mechanism for achieving social control and its purpose is the
regulation of conduct and activities within the society.  
Why  Section  307
IPC is held to be non-compoundable, because the Code has  identified  which
conduct should be brought within the ambit  of  non-compoundable  offences.
Such provisions are not meant, just to  protect  the  individual,  but  the
society as a whole.  
High Court was not right in thinking that it was  only
an injury to the person and since the  accused  persons  had  received  the
monetary compensation and settled the matter, the crime as against them was
wiped off.  
Criminal justice system has a larger objective to achieve, that
is safety and protection of the people at large and it would  be  a  lesson
not only to the offender, but to the individuals  at  large  so  that  such
crimes would not be  committed  by  any  one  and  money  would  not  be  a
substitute for the crime committed against the society.  Taking  a  lenient
view on a serious offence like the present, will leave a  wrong  impression
about the criminal justice system and will encourage further criminal acts,
which will endanger the peaceful co-existence and welfare of the society at
large.

16.   We are, therefore, inclined to allow this appeal and  set  aside  the
judgment of the High Court.   The  High  Court  was  carried  away  by  the
settlement and has not  examined  the  matter  on  merits,  hence,  we  are
inclined to direct the High Court to take back the appeal to its  file  and
decide the appeal on merits.  Let the High  Court  dispose  of  the  appeal
within six months.  Ordered accordingly.


                                                 REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL NO. 2018 OF 2013
                [Arising out of SLP (Crl.) No. 9278 of 2012]


State of Rajasthan                           .. Appellant
                                   Versus
Shambhu Kewat and Another               .. Respondents

                               J U D G M E N T

K. S. Radhakrishnan, J.

1.    Leave granted.


2.    Respondents herein were charge-sheeted  for  the  offences  punishable
under Sections 307, 323, 325, 427 read  with  Section  34  IPC.   They  were
tried before the Court of Additional  Sessions  Judge,  Fast  Track  No.  1,
Kota, Rajasthan.  From the  side  of  the  prosecution,  PWs  1  to  5  were
examined and Exh. P1- P12 were produced.  From the side of  defence,  second
accused was examined  as  DW1.  
The  Sessions  Court,  after  hearing  the
parties and  considering  the  oral  and  documentary  evidence,  found  the
accused persons guilty of the offence  punishable  under  Section  307  read
with Section 34 IPC, but acquitted them of the rest  of  the  charges,  vide
its order  dated  9.7.2009.  
Later,  the  accused  persons  were  heard  on
sentence, and they   stated that they are not  habitual  criminals  and  are
aged 26 and 28 years, respectively.  Further, it was pointed out  that  they
are poor labourers married and have children.  Further, it was also  pointed
out that the injuries were caused due to sudden provocation,  and  were  not
pre-meditated.    After hearing the accused and the prosecution,  the  trial
Court, on sentence, passed the following order:
      “Heard both the parties.  On the basis of the above arguments, perused
      the case file.  Though no criminal record has  been  produced  by  the
      Prosecution against the accused,  nor  has  any  arguments  about  the
      habitual criminal, however, from the evidence came on file, this  fact
      has been established that accused Banwari and Shambhu had been  taking
      the goods on credit from the complainant Abdul Rashid, also on the day
      of incident, had come to take goods on credit and due  to  arrears  of
      money, he had refused to give the goods on credit.   Then  they  again
      came back at the place of incident.  Thereafter about 10 minutes  both
      came with iron rod and a strip of iron like sword in a planned manner,
      and both together made a murderous attack on Abdul Rashid.  By causing
      fatal injury on the head after fracture of piece of bone  of  head  of
      Abdul Rashid, went inside the brain.  The doctor performed the surgery
      and taken out.  Thereafter it cannot be  said  that  the  accused  has
      injured in ignorance, suddenly  on  instigation  and  cause  the  said
      injury to Abdul Rashid and for committing the act by them,  they  have
      no intention or purpose for committing such act.  Case  under  Section
      307 IPC has been proved against the accused beyond  doubt.   Therefore
      in this situation lenient view cannot be adopted against the  accused.
      The Hon’ble Supreme Court has shown this intent in several cases  that
      if the leniency is given to the accused, then the criminal  people  in
      the society will be encouraged.  The accused had  without  any  reason
      has injured the complainant  sitting  in  his  shop.   This  has  been
      witnessed by other people of the society sitting  in  shop.   Adopting
      lenient view with the accused,  faith  of  the  other  people  of  the
      society will go from justice.  In such situation, as per the direction
      given by the Hon’ble Supreme Court, the accused are punished as under:


                             ORDER OF SENTENCE:
      Therefore accused Shambhu son of Babu Lal and accused Banwari lal  son
      of Babu Lal Kevat, residents  of  Iqbal  Chowk,  Sakatpura,  Kota  are
      declared acquitted from the charge under Section 427 IPC and both  the
      accused are convicted and are  sentenced  for  10-10  (Ten-Ten)  years
      rigorous imprisonment and fine of Rs.5000-5000/- (Rupees five thousand
      only) for the charge under Section 307 read with Section 34 IPC.    In
      the event of committing default in  the  payment  of  fine  will  face
      additional simple imprisonment of 3-3 months.   The  period  spent  in
      police/judicial custody by the accused will be adjusted in the  period
      of original sentence  under  the  provision  of  Section  428  Cr.P.C.
      Warrant of sentence be prepared.  Recovered property in the case, iron
      road and strip of  iron  like  sword  be  destroyed  after  expiry  of
      limitation of appeal as per  directions.   Copy  of  the  judgment  be
      supplied to the accused free of cost.”

3.    Aggrieved by the  order  of  conviction  and  sentence,  the  accused
persons approached the High Court by filing S.B. Criminal Appeal No. 825 of
2009.    When  the  appeal  came  up  for  hearing,  on   16.11.2011,   the
complainant, Abdul Rashid who was present in the court,    stated  that  he
and the accused persons had entered into a compromise and,  based  on  that
compromise, he had  received  the  compensation  amount  from  the  accused
persons for the injuries caused to him.   Consequently, it was pointed  out
that he did not wish to pursue the appeal.  Learned counsel  appearing  for
the complainant submitted before the High Court that since the parties  had
buried  the  differences  and  since  offence  committed  was  ‘against  an
individual’, rather than ‘against the State’, no fruitful purpose would  be
served by keeping the accused persons behind the bars, and  hence,  it  was
requested that the case be compounded and the appeal be allowed.

4.    We have examined the reasons stated by the High Court for acceding to
that request.  The High Court examined the scope of Sections  482  and  320
CrPC and expressed  the  view  that  there  are  certain  similarities  and
differences between compounding  and  quashing  a  case  on  the  basis  of
compromise and hence, quashing of a criminal proceeding upon  a  compromise
is well within the discretionary power of the Court. 
 It also  opined  that
while the power under Section 320 CrPC is cribbed,  cabined  and  confined,
the power under Section 482 CrPC is vast, unparallel  and  paramount.    On
facts the High Court opined that it was a case where the fight between  the
parties had occurred on the spur and heat of the moment and the assault was
more a crime ‘against an individual’, rather than ‘against the  society  at
large’.    The High Court held as follows:
      “In the present case, the fight occurred at the spur of the moment  in
      the heat of the moment.  According to the prosecution, both the  sides
      were verbally fighting  when  alleged,  the  appellants  struck  Abdul
      Rashid (PW-3).  The assault was more a  crime  against  an  individual
      than against the society at large.  Admittedly, both the parties  have
      entered into a compromise.   They  have  resolved  their  differences.
      Thus, it would be in the interest of justice to allow the appeal.”

5.    The High Court felt  that  since  the  parties  had  entered  into  a
compromise and resolved their disputes and differences, it would be in  the
interest of justice to allow the appeal.    Consequently,  the  appeal  was
allowed and the  accused  persons  were  acquitted  of  the  offence  under
Sections 307 read with 34 IPC.
Aggrieved by the same, this appeal has been
preferred.
6.    Learned counsel appearing for the State submitted that the High Court
has completely misread and misunderstood the various principles  laid  down
by this Court in Gian Singh v. State of Punjab and another  (2012)  10  SCC
regarding the scope and ambit of Sections 482 and 320 CrPC as well  as  the
powers conferred on  the  criminal  Court  to  quash  criminal  proceedings
involved in a non-compoundable offence, in view of the  compromise  arrived
at between the parties.  The various guidelines laid  down  by  this  Court
were also overlooked.     Learned counsel  also  submitted  that  the  High
Court has also committed an error in holding that  the  offence  which  has
been proved was merely  an  offence  against  an  individual,  rather  than
against the State.   Learned counsel submitted that the Sessions Court  had
correctly noticed the nature of injuries and rightly came to the conclusion
that the accused had committed injuries not due to sudden provocation,  but
it was a premeditated incident and that the trial Court has rightly awarded
the sentence of 10 years rigorous imprisonment for the  offence  punishable
under Section 307 IPC.

7.    Learned counsel appearing for the respondents,  on  the  other  hand,
contended that the parties had entered into a compromise and, on the  basis
of the compromise, the accused persons paid a  substantial  amount  to  the
complainant for the injuries caused to him and taking note of the fact that
the alleged crime was committed on the spur  of  the  moment  without  pre-
meditation, the High Court was justified in  compounding  the  offence  and
acquitting the accused persons.

8.    We may point out that in Gian Singh (supra), this Court has held that
quashing of offence or criminal proceedings on  the  ground  of  settlement
between an offender and the victim is not the same thing as compounding  of
offences.  This Court also held that the power of compounding  of  offences
conferred on a Court under Section 320 CrPC is  materially  different  from
the power conferred under Section 482 for quashing of criminal  proceedings
by the High Court.  In compounding of offences, power of a  criminal  court
is circumscribed by the provisions contained in Section 320  CrPC  and  the
Court is guided solely and squarely thereby, while, on the other hand,  the
formation of opinion by the High Court for quashing a  criminal  proceeding
or criminal complaint under Section 482 CrPC is guided by the  material  on
record as to whether the ends of justice would  justify  such  exercise  of
power, although the ultimate consequence may be acquittal or  dismissal  of
indictment.

9.    The Court also opined that 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  CrPC.   This  Court
further opined that the inherent  power  is  of  wide  plentitude  with  no
statutory limitation but it has to be  exercised  in  accordance  with  the
guidelines engrafted in such power, namely,  (i)  to  secure  the  ends  of
justice, or (ii) to prevent abuse of the process of any court.  This  Court
also cautioned that while exercising the power of compounding the  offence,
the court must have due regard to the nature and gravity of the crime.

10.   We notice, in this case,  admittedly,  the  offence  committed  under
Section 307 IPC is not compoundable.  In Ishwar  Singh  v.  State  of  M.P.
(2008) 15 SCC 667, the accused was alleged to  have  committed  an  offence
punishable under Section 307 IPC and, with reference to Section  320  CrPC,
it was held that Section 307 was not a compoundable offence and  there  was
express bar in Section 320 that no offence shall be compounded if it is not
compoundable under the Code.  In Gulab Das and others v.  State  of  Madhya
Pradesh (2011) 10 SCC 765, a different note was struck by this  Court,  but
certain reasons for compounding the offence  under  Section  307  IPC  were
stated.   In that case, this Court noticed  that  the  incident  had  taken
place in the year 1994 and the parties were related to each  other.    Both
the accused persons, at the time of  the  incident,  were  in  their  20’s.
Further, it was also noticed that a cross case was registered  against  the
complainant also in which he was convicted and sentenced.  Further, it  was
also noticed that the accused persons had also undergone certain period  of
sentence.  The  case  which  was  settled  between  the  parties,  involved
offences punishable under Section 325 read with Section 34 and  also  under
Section 323 IPC.   It was in such circumstances that the  Court  felt  that
the settlement arrived at between the parties was a sensible once so as  to
give quietus to the controversy.  The Court while upholding the conviction,
reduced the sentence awarded to the accused to the period they had  already
undergone.

11.   In Rajendra Harakchand Bhandari and others v.  State  of  Maharashtra
and another (2011) 13 SCC 311, this Court had an occasion to  consider  the
question whether an offence under Section 307 IPC could  be  compounded  in
terms  of  the  compromise  reached  at  between  the  parties.    It   was
categorically  held  that  the  offence  under  Section  307  IPC  is   not
compoundable in terms of Section 320(9) CrPC and that compounding  of  such
an offence was out of question.   Further, taking note of the fact that the
incident had occurred in the year 1991 and it was  almost  20  years  since
then, and that the accused persons were agriculturists  by  occupation  and
had no previous criminal background and there had been reconciliation among
the parties, the Court held that the ends of justice would be  met  if  the
substantive sentence awarded to  the  accused  be  reduced  to  the  period
already undergone.

12.   We find, in this case, such a situation  does  not  arise.    In  the
instant case, the incident had occurred on  30.10.2008.   The  trial  Court
held that the accused persons, with common intention, went to the  shop  of
the injured Abdul Rashid on that day armed with iron rod  and  a  strip  of
iron and, in furtherance of their  common  intention,  had  caused  serious
injuries on the body of Abdul Rashid, of which injury number 4 was  on  his
head, which was of a serious nature.
13.   Dr. Rakesh Sharma, PW5, had stated that out of the injuries caused to
Abdul Rashid, injury no. 4 was an injury on the head and  that  injury  was
“grievous and fatal for life”.    PW8, Dr. Uday Bhomik, also opined that  a
grievous injury was caused on the head of Abdul Rashid.  Dr. Uday conducted
the operation on injuries of Abdul Rashid as  a  Neuro  Surgeon  and  fully
supported the opinion expressed by PW 5 Dr. Rakesh Sharma that injury no. 4
was “grievous and fatal for life”.

14.   We notice that the gravity of the injuries was taken note of  by  the
Sessions Court and it  had  awarded  the  sentence  of  10  years  rigorous
imprisonment for the offence punishable under Section 307 IPC, but  not  by
the High Court.   The High Court  has  completely  overlooked  the  various
principles laid down by this Court in Gian Singh (supra), and has committed
a mistake in taking the view that, the injuries were caused on the body  of
Abdul Rashid in a fight occurred at the spur and the heat of the moment. It
has been categorically held by this Court in Gian Singh  (supra)  that  the
Court, while exercising the power under Section 482, must have “due  regard
to the nature and gravity of the crime” and “the  societal  impact”.   Both
these aspects were completely overlooked by the High Court. The High  Court
in a cursory manner, without application  of  mind,  blindly  accepted  the
statement  of  the  parties  that  they  had  settled  their  disputes  and
differences and took the view that it was a crime against “an  individual”,
rather than against “the society at large”.

15.   We are not prepared to say  that  the  crime  alleged  to  have  been
committed by the accused persons was a crime against an individual, on  the
other hand it was a crime against the society at large.  
Criminal  law  is
designed as a mechanism for achieving social control and its purpose is the
regulation of conduct and activities within the society.  
Why  Section  307
IPC is held to be non-compoundable, because the Code has  identified  which
conduct should be brought within the ambit  of  non-compoundable  offences.
Such provisions are not meant, just to  protect  the  individual,  but  the
society as a whole.  
High Court was not right in thinking that it was  only
an injury to the person and since the  accused  persons  had  received  the
monetary compensation and settled the matter, the crime as against them was
wiped off.  
Criminal justice system has a larger objective to achieve, that
is safety and protection of the people at large and it would  be  a  lesson
not only to the offender, but to the individuals  at  large  so  that  such
crimes would not be  committed  by  any  one  and  money  would  not  be  a
substitute for the crime committed against the society.  Taking  a  lenient
view on a serious offence like the present, will leave a  wrong  impression
about the criminal justice system and will encourage further criminal acts,
which will endanger the peaceful co-existence and welfare of the society at
large.

16.   We are, therefore, inclined to allow this appeal and  set  aside  the
judgment of the High Court.   The  High  Court  was  carried  away  by  the
settlement and has not  examined  the  matter  on  merits,  hence,  we  are
inclined to direct the High Court to take back the appeal to its  file  and
decide the appeal on merits.  Let the High  Court  dispose  of  the  appeal
within six months.  Ordered accordingly.

                                       ………………………………J.
                                       (K. S. Radhakrishnan)






                                       ………………………………J.
                                       (A. K. Sikri)
New Delhi,
November 28, 2013.

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