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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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