Maya Sanjay Khandare v. State of Maharashtra (2021) - S. 482, CrPC applicable in 'rarest of rare' case


Court :
Bombay High Court, Nagpur Bench

Brief :
The following judgement deals with Section 482 of Cr. PC and whether the powers under section 482 allows an application for settlement to be entertained and whether the conviction of the accused could be quashed in cases where a settlement is reached between the accused and the victim after due trial and conviction of the accused.

Citation :
CRIMINAL APPLICATION NO. : U/S. 482 No. 709 Of 2020

Maya Sanjay Khandare v. State of Maharashtra (2021)
(Section 482, CrPC should be applied in ‘rarest of rare’ case)
(Section 482 CrPC)

JUDGMENT SUMMARY: Maya Sanjay Khandare v.  State of Maharashtra 
DATE OF JUDGEMENT: 5th January 2021 
JUDGES: Justice A.S Chandurkar, Justice V.G Joshi, Justice Nitin B. Suryawanshi 
PARTIES:  Maya Sanjay Khandare  (Petitioner)
State of Maharashtra, The Station Police Officer, Murtizapur, Dist. Akola  (Respondent)

SUBJECT

The following judgement deals with Section 482 of Cr. PC and whether the powers under section 482 allows an application for settlement to be entertained and whether the conviction of the accused could be quashed in cases where a settlement is reached between the accused and the victim after due trial and conviction of the accused.

AN OVERVIEW

1. In the present case a report was launched against the accused and the offences were registered under Sections 354A, 354D and Section 506 of IPC along with Section 3(1) (xi) Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act 1989 and the accused was convicted by the Sessions Court. 

2. The convict preferred for an appeal and an affidavit was sworn by the convict stating that an apology had been tendered to the victim thereby reaching to a settlement and thus stated to invoke the jurisdiction of Section 482 to quash the F.I.R as well as the judgement of conviction passed by the Sessions Court. 

3. The question of reference which came into existence after the  Division Bench was of the view that exercise of power under section 482 of the code for quashing and setting aside an order of conviction has to be rarely exercised rather than being routinely exercised. In view of such disagreement the Division Bench framed two questions and sought a reference to be made to a larger bench to answer the same. 

4. The cases which formed the basis of reference were : 

• Udhav KisanRao Godse v. State of Maharashtra 
• Ajmatkhan & Anr. V. State of Maharashtra 
• Shivaji Haribhau Jawanjal v. State of Maharashtra 
• Kiran Tulsiram Ingale v. Anusara P. Gaikwad & Others 

5. Here it is amply clear that a reference to a larger bench is on  question/principle of law. 

ISSUES

The following are the major issues framed by the Division Bench of High Court – 

1. Whether in a prosecution which has culminated in a conviction whether the power under section 482 of Cr.PC  ought to be exercised for quashing the prosecution/conviction altogether instead of maintaining it and considering the issue for modification of sentence upon settlement between the convict and the victim.

2. Whether the broader principles/parameters as set out in Gian Kaur v. State of Punjab and Ors. (2012), Narinder Singh v. State of Punjab (2014) and Parbatbhai Aahir and Ors. V. State of Gujarat have been correctly applied while deciding the cases of Udhav KisanRao Godse, Ajmatkhan Rahematkhan and Shivaji Haribhau Jawanjal. 

IMPORTANT PROVISIONS

• Cr.PC -  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. 

ANALYSIS OF THE JUDGEMENT

1. The learned counsel on behalf of the applicants referring to the judgement of full bench of this Court in the case of Abasaheb Yadav Honmane cited that the inherent powers under section 482 were of wide magnitude and that such power could be exercised for quashing criminal proceedings of any kind whether compoundable or non compoundable  on settlement of disputes between the parties. And these powers could be exercised at the appellate stage. Also the learned counsel referred to the reformative theory that was taken note in the case of Shivaji Haribhau Jawanjal that if the accused had realized his guilt and was ready to reform himself then settlement in such cases should be encouraged. Refusal to quash criminal proceedings after conviction despite settlement between the parties would result in the stigma of  conviction to continue proceedings.

2. One of the learned senior advocate sought to invoke the principle of “Stare Decisis”  by urging that this Court had been consistently entertaining and quashing proceedings under section 482 of the code when parties arrived at a settlement notwithstanding the fact that the trial had resulted in an order for conviction. This fact showed that there was no limitation to the exercise of inherent powers of the High Court.

3. The Court while answering the first issue pointed out that it is necessary to examine the nature and scope of powers conferred under section 482 of the code. The provisions of section 482 its scope, width and amplitude had been considered by the Hon’ble Supreme Court in various decisions. Making references to some of the recent precedents the court in the case of  State of Punjab v. Davinder Pal Singh Bhullar & Others observed that the expressions “abuse of the process of law" and “ends of justice” are aspects that have to be dealt with in accordance with law which includes procedural laws and not otherwise. The court also observed that in the case of Prabhu Chawla and Ajay and others the position was made clear that the limitation on the court to exercise inherent powers is self restraint and nothing more.
 
4. Also it was observed by the court that the Hon’ble Supreme Court had used the expression “rarest of the rare case” while describing the scope of exercise of powers under section 482. Thus by requiring jurisdiction to be exercised in rarest of the rare case the approach to be adopted by the High Court under section 482 of this code has been indicated. Also it has been seen that in cases where the conviction had already been recorded by the trial court and the matter was at the appellate stage mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who had been convicted by the trial court.

5. The Judges were of the opinion that these observations clearing pointed out that even while exercising the power of quashing criminal proceedings in respect of non compoundable offences which are private in nature on do not have serious impact on the society still the High Court is expected to consider the antecedents of the accused, his conduct as to whether he was absconding and the reason for the same and how he managed with the complainant to enter into a compromise. These observations act as parameters that has to be applied even with regards to quashing non compoundable offences which are private in nature and do not have an impact on society.  

6. The judges after also referring to the decisions in  Gian Kaur v.  State of Punjab  and  Narinder Singh v. State of Punjab held that offences under Section 307 of IPC and under the Arms Act, 1959  would fall in the category of heinous and serious offences which were required to be treated as crime against the society and not against the individual alone. Criminal proceedings for such offences that had a serious impact on the society could not be quashed in exercise of powers under section 482 of the code on the grounds that the parties had resolve their disputes amongst themselves. 

7. It is well settled that the power of compounding an offence has to be strictly in the manner provided by section 320 of the code. However the power to compound under section 320 is different from the aspect of quashing of proceedings. Thus a non compoundable offence cannot be permitted to be compounded by taking recourse to section 320 of the code.

8. Thus  the second issue was itself answered and was made clear by the bench that compromise in itself is not sufficient requisite to set aside any order for conviction in non compoundable offences. 

CONCLUSION

The court has made it clear that while exercising inherent powers under section 482 of Cr.PC it cannot set aside the order of conviction of an accused in a non compoundable case merely on the grounds of compromise between the convict and the victim at a post conviction stage. However the same can be done only in “rarest of the rare” cases depending upon the individual facts and circumstances of the cases. Exercise of powers given under section 482 to the High Court should be invoked in exceptional circumstances and for offences which are not against the society which has been rightly pointed out by the court itself. 

To download the original copy of the judgment, click here

 

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JINALI SHAH
on 09 January 2021
Published in Others
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