Date of judgement :
27th April 2021
DR. Justice Kauser Edappagath
Respondent: State of Kerala
Can non-compoundable criminal proceedings be quashed at the post-conviction level by using the power under Section 482 of the Code of Criminal Procedure based on a settlement between the defendant and the victim?
- The appellant and six others were charged in the Court with violating Sections 143, 147, 149, 326, 307 r/w 149 of the I.P.C. on the grounds that they organized an unlawful assembly armed with deadly weapons and attacked the victim with an iron pipe in pursuit of the common purpose of the assembly, causing injury to his head.
- The Court below found the appellant alone guilty of the crime punishable under section 326 of the I.P.C. after a complete trial, and he was sentenced for it. He was found not guilty of the other charges against him.
- The accused No. 2 through 7 were found not guilty on all of the charges levelled against them and were acquitted. According to the impugned judgment, the appellant was sentenced to three years of rigorous imprisonment and a fine of 6,000/-, or, if he did not pay the fine, he was sentenced to three months of simple imprisonment. The appellant chose the above appeal to challenge the said conviction and sentence.
- The appellant filed a case under Sections 482 and 320 of the Cr.P.C. to quash the whole proceedings and to set aside the conviction and punishment on the grounds that the whole conflict between him and the victim had been resolved. The victim's affidavit has been used to help the application.
- Section 482 of the Code says the High Court's fundamental powers are preserved. Nothing in this Code shall be construed to restrict or affect the High Court's inherent powers to make such orders as may be required to carry out any order made under this Code, to avoid misuse of any Court's procedure, or to otherwise protect the ends of justice.
- Section 320 of the Code talks about the compounding of an offence.
- Due to the amicable resolution of conflicts between the appellant and the survivor, the learned counsel for the appellant, Sri.C.P.Udayabhanu, argued that this Court's jurisdiction should be exercised to quash the entire proceedings. The learned counsel further argued that the inherent powers enumerated in Section 482 of the Code of Criminal Procedure were vast and far-reaching and that they could be used to quash criminal proceedings of any sort, compoundable or non-compoundable, at any time, except after the defendant and the victim had reached an agreement.
- Joshi v. State of Haryana [2003 (2) KLT 1062 (SC)]; Nikhil Merchant v. Central Bureau of Investigation [2008 (3) KLT 769 (SC)]; Manoj Sharma v. State [2008 (4) KLT 417 (SC)]; Gian Singh v. State of Punjab [2012 (4) KLT 108 (SC)] is cited by the learned counsel.
- Section 320 of the Cr.P.C. is the only legislative provision for compounding an offence, and it divides offences into two categories: simple compoundable and compoundable with the Court's approval [Ss.320(1) and 320(2)].
- The question of the scope of power exercisable under Section 482 of the Cr.P.C. when a prayer is made for quashing criminal proceedings involving non-compoundable offences on the basis of a settlement between the parties was first brought before the Apex Court in Joshi's case. S.320 of the Cr.P.C. would not restrict or regulate the exercise of powers vested in the Court u/s 482 of the Cr.P.C., and the Court will have the power to quash criminal proceedings or an FIR under the exercise of powers u/s 482 even though the offence was non-compoundable u/s 320 of the Cr.P.C., it was held.
- The Supreme Court held in the Manoj Sharma case, that unless the parties have reached an amicable agreement, the High Court cannot refuse to exercise its jurisdiction under Section 482 and Article 226 of the Constitution of India to quash the criminal proceedings, even if the offence is non-compoundable.
- In Narinder Singh and Others v. State of Punjab and State of Madhya Pradesh v. Laxmi Narayan and Others, the Supreme Court summed up and laid down principles by which the High Court would be driven in giving proper treatment to the parties settlement and exercising its power under Section 482 of the Cr.P.C. thus accepting the settlement and quashing the proceedings or refusing to accede to the settlement.
- It is well established that the High Court's plenary powers under section 482 of the Cr.P.C. are extensive, but they should be used sparingly and with caution. It is also well established that the said power can be used in conjunction with appellate or revisional jurisdiction, regardless of the nature of the proceedings.
- Criminal proceedings begin with the filing of an FIR and continue until the finalization of a conviction warrant, whether one is issued. When a trial court's order of conviction is challenged by an appellate or revisional court, it cannot be assumed that the order of conviction has reached finality.
- Despite the trial court's verdict, the presumption of innocence will be maintained until the order of conviction is finalized. An appeal against a conviction order has the effect of delaying the trial itself. Since S.320 does not regulate the power under Section 482 of the Cr.P.C., it may be used at any level of the criminal process, including the appellate or revisional stage.
- The section does not contemplate or designate any specific stage at which the powers granted under section 482 could be used. S.320 also makes no mention of any stage or method by which the court may allow the offences to be compounded.
- Thus, there is no need to limit the exercise of powers under section 482 of the Cr.P.C. to cases in which a conviction order has not been issued. Since the inherent power of quashing criminal proceedings under section 482 is so broad and can be used to secure the ends of justice, such powers cannot be limited to being used only prior to an accused's conviction.
- The mere fact that the order of conviction was awaiting appeal or revision could not be used as a reason to refuse to exercise powers under section 482 of the Cr.P.C. to quash the criminal proceedings, particularly when the parties to the dispute had reached an agreement.
- The offence for which the appellant was found guilty is not one of mental depravity or criminal nature, such as kidnapping, dacoity, or murder. It does not come under the category of offences identified as prohibited in the Apex Court's pronouncements to be compounded under section 482 of the Cr.P.C. The conflict seems to be personal in nature, and the victim has lost interest in continuing the criminal case.
The High Court has inherent power under Section 482 of the Cr.P.C. with no constitutional limitations, including S.320 of the Cr.P.C., which has held that these powers are to be exercised to protect the ends of justice or to avoid misuse of any Court's procedure and that these powers can be used to quash criminal proceedings, complaints, or FIRs in appropriate cases where the accused and victim have settled their dispute.
However, the Court must consider the essence and seriousness of the crime, and criminal prosecutions of egregious and serious offences, such as murder, rape, and dacoity, can not be quashed even though the victim or victim's family has reached an agreement with the perpetrator.
The law enunciated in the above decisions makes it clear that the High Court's power under Section 482 of the Cr. P.C is not limited by the provisions of Section 320 of the Cr. P.C, and that FIRs and criminal proceedings may be quashed by exercising inherent powers under Section 482 of the Cr. P.C if it is warranted in the given facts and circumstances of the case or to prevent abuse of process.