Manoj Sharma Vs. State and Ors.
EmailAppeal: Criminal Appeal No. 1619 of 2008
[Arising out of SLP (Crl.) No. 5265 of 2007]
[From the final Judgment and Order dated 17.8.2007 of the High Court of Delhi at New Delhi in W.P. (Crl.) No. 1075 of 2007]
[Arising out of SLP (Crl.) No. 5265 of 2007]
[From the final Judgment and Order dated 17.8.2007 of the High Court of Delhi at New Delhi in W.P. (Crl.) No. 1075 of 2007]
Petitioner: Manoj Sharma
Respondent: State and Ors.
Apeal: Criminal Appeal No. 1619 of 2008
[Arising out of SLP (Crl.) No. 5265 of 2007]
[From the final Judgment and Order dated 17.8.2007 of the High Court of Delhi at New Delhi in W.P. (Crl.) No. 1075 of 2007]
[Arising out of SLP (Crl.) No. 5265 of 2007]
[From the final Judgment and Order dated 17.8.2007 of the High Court of Delhi at New Delhi in W.P. (Crl.) No. 1075 of 2007]
Judges: Altamas Kabir & Markandey Katju, JJ.
Date of Judgment: Oct 16, 2008
Appearances:
Mr. H.K. Chaturvedi, Advocate for the Appellant.
Mr. B.B. Singh, Ms. Savitri Pandey and Mr. D.S. Mahra, Advocates for the Respondent.
Mr. B.B. Singh, Ms. Savitri Pandey and Mr. D.S. Mahra, Advocates for the Respondent.
Head Note:
Criminal Laws
Criminal Procedure Code, 1973
Sections 482 and 320 – Constitution of India, 1950, Article 226 – Penal Code, 1860 – Sections 420/468/471/34/120B – FIR – Quashing of – Dispute of personal nature – Accused and complainant reaching a compromise – Yet High Court refusing to quash FIR. Held (per Altamas Kabir, J.) that dispute being of a private nature and complainant having decided not to pursue the matter further, High Court should have taken a pragmatic view. Held (per Katju, J. concurring) that except for offence under Section 420 all the other offences mentioned in the FIR were not compoundable even with the permission of the judge. It was observed that power under Section 482 should not be exercised where offences are non-compoundable. However in B.S. Joshi’s case Apex Court held that power under Section 482 can be exercised if ends of justice so require and court is convinced that there is no chance of conviction. Hence, there is a need to decide which all non-compoundable offences can be quashed in exercise of power under Section 482 CrPC or under Article 226. B.S. Joshi’s case relied upon. Appeal allowed.
Judicial activism
Criminal Procedure Code, 1973
Section 482 – Words ‘or otherwise to secure the ends of justice’ – Implication . Held that in very rare cases High Court can pass an order in violation of provisions of CrPC. Even though as per certain decisions of Apex Court power under Section 482 cannot be exercised to do something which is expressly barred, judgments cannot be read as a Euclid’s formula and in rare and exceptional cases judicial activism can be resorted to by the Court where the situation warrants it in the interest of the country or society. Brown v. Board of Education [347 U.S. 483], Miranda v. Arizona [384 U.S. 436], Roe v. Wade [410 US 113] relied upon. (Paras 29-31)
Criminal Procedure Code, 1973
Sections 482 and 320 – Constitution of India, 1950, Article 226 – Penal Code, 1860 – Sections 420/468/471/34/120B – FIR – Quashing of – Dispute of personal nature – Accused and complainant reaching a compromise – Yet High Court refusing to quash FIR. Held (per Altamas Kabir, J.) that dispute being of a private nature and complainant having decided not to pursue the matter further, High Court should have taken a pragmatic view. Held (per Katju, J. concurring) that except for offence under Section 420 all the other offences mentioned in the FIR were not compoundable even with the permission of the judge. It was observed that power under Section 482 should not be exercised where offences are non-compoundable. However in B.S. Joshi’s case Apex Court held that power under Section 482 can be exercised if ends of justice so require and court is convinced that there is no chance of conviction. Hence, there is a need to decide which all non-compoundable offences can be quashed in exercise of power under Section 482 CrPC or under Article 226. B.S. Joshi’s case relied upon. Appeal allowed.
Judicial activism
Criminal Procedure Code, 1973
Section 482 – Words ‘or otherwise to secure the ends of justice’ – Implication . Held that in very rare cases High Court can pass an order in violation of provisions of CrPC. Even though as per certain decisions of Apex Court power under Section 482 cannot be exercised to do something which is expressly barred, judgments cannot be read as a Euclid’s formula and in rare and exceptional cases judicial activism can be resorted to by the Court where the situation warrants it in the interest of the country or society. Brown v. Board of Education [347 U.S. 483], Miranda v. Arizona [384 U.S. 436], Roe v. Wade [410 US 113] relied upon. (Paras 29-31)
Held:
Held (Per Altamas Kabir, J.)
High Court’s refusal to exercise its jurisdiction under Article 226 of the Constitution for quashing the criminal proceedings cannot be supported. The First Information Report, which had been lodged by the complainant indicates a dispute between the complainant and the accused which is of a private nature. It is no doubt true that the First Information Report was the basis of the investigation by the Police authorities, but the dispute between the parties remained one of a personal nature. Once the complainant decided not to pursue the matter further, the High Court could have taken a more pragmatic view of the matter. We do not suggest that while exercising its powers under Article 226 of the Constitution the High Court could not have refused to quash the First Information Report, but what we do say is that the matter could have been considered by the High Court with greater pragmatism in the facts of the case. As we have indicated hereinbefore, the exercise of power under Section 482 CrPC or Article 226 of the Constitution is discretionary to be exercised in the facts of each case. (Para 8)
Held (Per Markandey Katju, J.)
A perusal of Section 320 shows that offences under Section 468, 471, 34 and 120B IPC (with are mentioned in the FIR in question) cannot even be compounded with the permission of the Court. In fact, Section 320(9) CrPC expressly states that no offence shall be compounded except as provided by this Section. It apparently follows, therefore, that except for Section 420 IPC, which can be compounded with the permission of the Court in view of Section 320(2), the other provisions mentioned in the FIR in question could not be compounded even with the permission of the Court. It, prima facie, seems to follow that the offences mentioned in the FIR were not compoundable except in relation to the allegations about Section 420 IPC. (Para 20)
However, this was creating a lot of difficulty and hardship to the public and hence a way out was found by this Court in B.S. Joshi and others v. State of Haryana [JT 2003 (3) SC 277] (Para 22)
In B.S. Joshi’s case (supra) relying on its own decision in State of Karnataka v. L. Muniswamy [1977 (2) SCC 699] observed that the High Court under Section 482 CrPC can quash the criminal proceedings if it comes to the conclusion that the ends of justice so requires e.g. where there would almost be no chance of conviction. In a case under Section 498A IPC if the parties enter into a compromise the chances of an ultimate conviction are bleak, and hence no useful purpose would be served by allowing the criminal proceedings to continue. They should, therefore, be quashed by exercising power under Section 482 CrPC. (Para 23)
High Court’s refusal to exercise its jurisdiction under Article 226 of the Constitution for quashing the criminal proceedings cannot be supported. The First Information Report, which had been lodged by the complainant indicates a dispute between the complainant and the accused which is of a private nature. It is no doubt true that the First Information Report was the basis of the investigation by the Police authorities, but the dispute between the parties remained one of a personal nature. Once the complainant decided not to pursue the matter further, the High Court could have taken a more pragmatic view of the matter. We do not suggest that while exercising its powers under Article 226 of the Constitution the High Court could not have refused to quash the First Information Report, but what we do say is that the matter could have been considered by the High Court with greater pragmatism in the facts of the case. As we have indicated hereinbefore, the exercise of power under Section 482 CrPC or Article 226 of the Constitution is discretionary to be exercised in the facts of each case. (Para 8)
Held (Per Markandey Katju, J.)
A perusal of Section 320 shows that offences under Section 468, 471, 34 and 120B IPC (with are mentioned in the FIR in question) cannot even be compounded with the permission of the Court. In fact, Section 320(9) CrPC expressly states that no offence shall be compounded except as provided by this Section. It apparently follows, therefore, that except for Section 420 IPC, which can be compounded with the permission of the Court in view of Section 320(2), the other provisions mentioned in the FIR in question could not be compounded even with the permission of the Court. It, prima facie, seems to follow that the offences mentioned in the FIR were not compoundable except in relation to the allegations about Section 420 IPC. (Para 20)
However, this was creating a lot of difficulty and hardship to the public and hence a way out was found by this Court in B.S. Joshi and others v. State of Haryana [JT 2003 (3) SC 277] (Para 22)
In B.S. Joshi’s case (supra) relying on its own decision in State of Karnataka v. L. Muniswamy [1977 (2) SCC 699] observed that the High Court under Section 482 CrPC can quash the criminal proceedings if it comes to the conclusion that the ends of justice so requires e.g. where there would almost be no chance of conviction. In a case under Section 498A IPC if the parties enter into a compromise the chances of an ultimate conviction are bleak, and hence no useful purpose would be served by allowing the criminal proceedings to continue. They should, therefore, be quashed by exercising power under Section 482 CrPC. (Para 23)
Cases Reffered:
1. Nikhil Merchant v. Central Bureau of Investigation and another [JT 2008 (9) SC 192] (Para 24)
2. Dr. Rajbir Singh Dalal v. Chaudhari Devi Lal University [JT 2008 (8) SC 621] (Para 31)
3. Aravali Golf Club and another v. Chander Hass and another [JT 2008 (3) SC 221] (Para 26)
4. Government of Andhra Pradesh and others v. Smt. P. Laxmi Devi [JT 2008 (2) SC 639] (Para 26)
5. Bharat Petroleum Corporation Ltd. and another v. N.R. Vairamani and another [JT 2004 (8) SC 171] (Para 31)
6. Textile Labour Association and Anr. v. Official Liquidator and Anr. [JT 2004 (Suppl.1) SC 1] (Para 5)
7. B.S. Joshi and others v. State of Haryana [JT 2003 (3) SC 277] (Para 22)
9. K.G. Prem Shankar v. Inspector of Police and Anr. [JT 2002 (7) SC 30] (Para 5)
10. CBI v. Rajagopal [JT 2002 (2) SC 331] (Para 5)
11. G.V. Rao v. L.H.V. Prasad [2000 (3) SCC 693] (Para 23)
12. Surendra Nath Mohanty v. State of Orissa [JT 1993 (3) SC 408] (Para 22)
13. Pepsi Food Limited v. Special Judicial Magistrate, [JT 1997(8) SC 705] (Para 4)
14. Mosst. Simrikhia v. Dolley Mukherjee [JT 1990 (3) SC 79] (Para 30)
15. Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [JT 1988 (1) SC 279] (Para 23)
16. Sooraj Devi v. Pyare Lal and another [AIR 1981 SC 736] (Para 30)
17. Madhu Limaye v. State of Maharashtra [1977 (4) SCC 551] (Para 22)
18. State of Karnataka v. L. Muniswamy [1977 (2) SCC 699] (Para 23)
19. R.P. Kapur v. State of Punjab [AIR 1960 SC 866] (Para 30)
Foreign Cases:
1. Brown v. Board of Education [347 US 483] (relied upon) (Para 31)
2. Miranda v. Arizona [384 U.S. 436] (relied upon) (Para 31)
3. Roe v. Wade [410 US 113] (relied upon) (Para 31)
2. Dr. Rajbir Singh Dalal v. Chaudhari Devi Lal University [JT 2008 (8) SC 621] (Para 31)
3. Aravali Golf Club and another v. Chander Hass and another [JT 2008 (3) SC 221] (Para 26)
4. Government of Andhra Pradesh and others v. Smt. P. Laxmi Devi [JT 2008 (2) SC 639] (Para 26)
5. Bharat Petroleum Corporation Ltd. and another v. N.R. Vairamani and another [JT 2004 (8) SC 171] (Para 31)
6. Textile Labour Association and Anr. v. Official Liquidator and Anr. [JT 2004 (Suppl.1) SC 1] (Para 5)
7. B.S. Joshi and others v. State of Haryana [JT 2003 (3) SC 277] (Para 22)
9. K.G. Prem Shankar v. Inspector of Police and Anr. [JT 2002 (7) SC 30] (Para 5)
10. CBI v. Rajagopal [JT 2002 (2) SC 331] (Para 5)
11. G.V. Rao v. L.H.V. Prasad [2000 (3) SCC 693] (Para 23)
12. Surendra Nath Mohanty v. State of Orissa [JT 1993 (3) SC 408] (Para 22)
13. Pepsi Food Limited v. Special Judicial Magistrate, [JT 1997(8) SC 705] (Para 4)
14. Mosst. Simrikhia v. Dolley Mukherjee [JT 1990 (3) SC 79] (Para 30)
15. Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [JT 1988 (1) SC 279] (Para 23)
16. Sooraj Devi v. Pyare Lal and another [AIR 1981 SC 736] (Para 30)
17. Madhu Limaye v. State of Maharashtra [1977 (4) SCC 551] (Para 22)
18. State of Karnataka v. L. Muniswamy [1977 (2) SCC 699] (Para 23)
19. R.P. Kapur v. State of Punjab [AIR 1960 SC 866] (Para 30)
Foreign Cases:
1. Brown v. Board of Education [347 US 483] (relied upon) (Para 31)
2. Miranda v. Arizona [384 U.S. 436] (relied upon) (Para 31)
3. Roe v. Wade [410 US 113] (relied upon) (Para 31)
JUDGEMENT:
ALTAMAS KABIR, J.
1. Leave granted.
2. The question whether a First Information Report under Sections 420/468/471/34/120-B IPC can be quashed either under Section 482 of the Code of Criminal Procedure or under Article 226 of the Constitution, when the accused and the complainant have compromised and settled the matter between themselves, is the question which arises for decision in this appeal.
3. The identical question fell for the consideration of this Court in the case of B.S. Joshi v. State of Haryana, [JT 2003 (3) SC 277; 2003 (4) SCC 675] wherein also the question arose as to whether criminal proceedings or a First Information Report or complaint filed under Section 498A and 406 IPC by the wife could be quashed under Section 482 CrPC on account of the fact that the offences complained of were not compoundable under Section 320 of the Code. The objection taken in the said case has also been raised by Mr. B.B. Singh, learned advocate for the respondent State.
4. In B.S. Joshi’s case, this Court drew a distinction between compounding an offence as permitted under Section 320 CrPC and quashing of the complaint or criminal proceedings under Section 482 CrPC as also Article 226 of the Constitution. Pointing out that the appellant in the said case had not prayed for compounding the offence as the same was not compoundable, this Court observed with reference to the earlier decision in Pepsi Food Limited v. Special Judicial Magistrate, [JT 1997(8) SC 705; 1998 (5) SCC 749], that where the Court will exercise jurisdiction under Section 482 of the Code could not be inflexible or rigid formulae to be followed by the Courts could not be laid down. Exercise of such power would depend upon the facts and circumstances of each case but with the sole object of preventing abuse of the process of any Court, or otherwise to secure the ends of justice. It was also observed that it is well settled that these powers have no bar, but the same was required to be exercised with utmost care and caution. Accordingly, the learned Judges held that the power of the High Court under Section 482 of the Code to quash Criminal proceedings or FIR or complaint were not circumscribed by Section 320 of the Code of Criminal Procedure.
5. While the appellant herein strongly relied on the decision in B.S. Joshi’s case. Mr. B.B. Singh, learned counsel appearing for the respondent-State urged that having regard to the specific provision in the Code regarding compounding of offences, and indicating what offences may be compromised either with or without the leave of the Court, possibly the decision rendered in B.S. Joshi’s case required a second look. Relying on the decision of this Court in Inspector of Police, CBI v. Rajagopal, [JT 2002 (2) SC 331; 2002 (9) SCC 533], K.G. Prem Shankar v. Inspector of Police and Anr. [JT 2002 (7) SC 30] and also Textile Labour Association and Anr. v. Official Liquidator and Anr. [JT 2004 (Suppl.1) SC 1], Mr. Singh submitted that in B.S. Joshi’s case there was a departure from the view taken in the first of the two aforesaid cases.
6. We have carefully considered the submissions made on behalf of the respective parties and the facts involved in this case, and we are not inclined to accept Mr. Singh’s contention that the decision in B.S. Joshi’s case requires reconsideration, at least not in the facts of this case. What was decided in B.S. Joshi’s case was the power and authority of the High Court to exercise jurisdiction under Section 482 CrPC or under Article 226 of the Constitution to quash offences which are not compoundable. The law stated in the said case simply indicates the powers of the High Court to quash any criminal proceeding or First Information Report or complaint whether it be compoundable or not. The ultimate exercise of discretion under Section 482 CrPC or under Article 226 of the Constitution is with the Court which has to exercise such jurisdiction in the facts of each case. It has been explained that the said power is in no way limited by the provisions of Section 320 CrPC. We are unable to disagree with such statement of law. In any event, in this case, we are only required to consider whether the High Court had exercised its jurisdiction under Section 482 CrPC legally and correctly.
7. In view of the nature of the offences set out in the complaint, the High Court did not consider it an appropriate case for exercising its jurisdiction under Article 226 of the Constitution for quashing the same.
8. In our view, the High Court’s refusal to exercise its jurisdiction under Article 226 of the Constitution for quashing the criminal proceedings cannot be supported. The First Information Report, which had been lodged by the complainant indicates a dispute between the complainant and the accused which is of a private nature. It is no doubt true that the First Information Report was the basis of the investigation by the Police authorities, but the dispute between the parties remained one of a personal nature. Once the complainant decided not to pursue the matter further, the High Court could have taken a more pragmatic view of the matter. We do not suggest that while exercising its powers under Article 226 of the Constitution the High Court could not have refused to quash the First Information Report, but what we do say is that the matter could have been considered by the High Court with greater pragmatism in the facts of the case. As we have indicated hereinbefore, the exercise of power under Section 482 CrPC or Article 226 of the Constitution is discretionary to be exercised in the facts of each case.
9. In the facts of this case we are of the view that continuing with the criminal proceedings would be an exercise in futility.
10. We, accordingly, allow the appeal and set aside the order of the High Court and quash the criminal proceedings pending before the learned Additional Chief Metropolitan Magistrate, Karkardooma Court, Delhi, in FIR No.50 of 1997 dated 31st January, 1997 P.S. Vivek Vihar (East Delhi).
Markandey Katju, J.
11. I have read the judgment of my learned brother Hon. Kabir, J. and I respectfully agree with his conclusion that the appeal should be allowed and the judgment of the High Court as well as the criminal proceedings pending before the Additional Chief Metropolitan Magistrate, Karkardooma Court, Delhi in FIR No. 50 of 1997 dated 31st January, 1997 P.O. Vivek Vihar (East Delhi) against the appellant should be quashed.
12. However, I wish to give a separate concurring judgment in view of the importance of the issue involved in this case.
13. The question involved in this case is whether an FIR under Section 420/468/471/34/120-B IPC can be quashed under Section 482 CrPC or Article 226 of the Constitution when the accused and the complainant have compromised and settled the matter between themselves.
14. The allegations in the FIR are as follows:
‘Statement of Sanjay Pal S/o Mahendra Singh Pal R/o House No. A-25, Jhilmil Colony, Vivek Vihar, Delhi, stated that I reside at the above mentioned address with my family. I got financed a Maruti Van bearing No. DL- 1CB-4065 from Shri Manoj Kumar Sharma – Vijay Lakshmi Finance and Investment Company before two years back for a consideration amount of Rs. 30,000/- and I paid Rs. 3954/- as first installment. After that Shri Man Mohan Sharma R/o D-131, Jhilmil Colony, came and told me that your finance is fabricated one, that is why your vehicle has not been financed by me from Real Auto Deals which is run by my brother-in-law. I have received the payment given by you and your file. He asked me to give return the first R.C. He gave me the new R.C.. I returned him the old R.C. He suggested me that now the financer of your vehicle is Real Auto Deals. I was shocked that how the vehicle got transferred without signing any form and paper. Man Mohan Sharma used to receive the installments in cash every month from me. The receipts issued to me put up with neither rubber stamp nor used the letter head of Real Auto Deals. The cheques received from me, encashed him in different-different names instead depositing in the account of Real Auto Deals. When it has come to my notice that he is playing fraud with me, then visited the bank and got stopped the payment of the cheques. He came to me when the cheque was dishonoured and asked me why you stop the payment. I explained him that I have already sent you a notice stating that I will make the payments of the installments in the name of Real Auto Deals but you are not doing so, therefore, I got stopped the payments. Thereafter, on 27.12.1995 at about 10 O’clock he came to me in Jhilmil along with an unknown person, I can recognize him if he comes to me, took my said Maruti Van with his help without my consent by showing me a paper duly stamped by the police. Vijay Lakshmi Finance, Real Auto Deals and Man Mohan Sharma, have sold my vehicle to some other place by making my forged signatures and by playing fraud with me, in connivance of each other. The appropriate legal action may kindly be taken against all these persons. Statement heard which is correct. Sd/- English. Sanjay Pal 31.1.97 Attested Sd/- Snglish Satya Narayan ASI 31.1.97’.
15. A perusal of the FIR shows that the allegations against the appellant were that he forged documents in respect of a vehicle and thereafter indulged in cheating and deposited the cheques received from the complainant against financing of the vehicle in different accounts. It is also alleged in the FIR that the appellant sold the vehicle of the complainant to some other party by making forged signature and by playing fraud with him.
16. On the basis of the above FIR charges were framed against the appellant and co-accused Man Mohan Sharma.
17. The appellant filed a writ petition before the High Court for quashing the FIR on the ground that the matter had been compromised between the complainant and the accused. In that writ petition an affidavit was filed by the complainant stating that in view of the settlement between the parties he is withdrawing the allegations against both the writ petitioners and he is also withdrawing the FIR. As per the amicable settlement a sum of Rs. 45,000/- would be paid to the appellant Manoj Sharma and a further sum of Rs. 45,000/- would be paid to the co-accused Man Mohan Sharma.
18. However, the Delhi High Court by the impugned judgment dated 17.8.2007 rejected the writ petition and hence this appeal.
19. It may be mentioned that under Section 320(1) CrPC certain offences in the IPC can be compounded by the persons mentioned in the 3rd column of the table in that provision. Also, in view of Section 320(2) certain other offences can be compounded with the permission of the Court. However, Section 320 (9) specifically states:
‘No offence shall be compounded except as provided by this Section’.
20. A perusal of Section 320 shows that offences under Section 468, 471, 34 and 120B IPC (with are mentioned in the FIR in question) cannot even be compounded with the permission of the Court. In fact, Section 320(9) CrPC expressly states that no offence shall be compounded except as provided by this Section. It apparently follows, therefore, that except for Section 420 IPC, which can be compounded with the permission of the Court in view of Section 320(2), the other provisions mentioned in the FIR in question could not be compounded even with the permission of the Court. It, prima facie, seems to follow that the offences mentioned in the FIR were not compoundable except in relation to the allegations about Section 420 IPC.
21. There are other provisions in the IPC e.g. Section 498A which apparently cannot be compounded even with the permission of the Court in view of Section 320 (9) CrPC.
22. However, this was creating a lot of difficulty and hardship to the public and hence a way out was found by this Court in B.S. Joshi and others v. State of Haryana [JT 2003 (3) SC 277; 2003(4) SCC 675; AIR 2003 SC 1386]. In that decision this Court referred to its own earlier decision in Madhu Limaye v. State of Maharashtra [1977 (4) SCC 551] in which it was held (vide para 8) that the power under Section 482 should not be exercised when there is an express bar in some other provision of the Code. The Court in B.S. Joshi’s case (supra) also referred to the decision in Surendra Nath Mohanty v. State of Orissa [JT 1993 (3) SC 408; AIR 1999 SC 2181] which held that since the offence under Section 326 IPC is not compoundable the High Court cannot compound the offence.
23. Despite the above decisions this Court in B.S. Joshi’s case (supra) relying on its own decision in State of Karnataka v. L. Muniswamy [1977 (2) SCC 699] observed that the High Court under Section 482 CrPC can quash the criminal proceedings if it comes to the conclusion that the ends of justice so requires e.g. where there would almost be no chance of conviction. In a case under Section 498A IPC if the parties enter into a compromise the chances of an ultimate conviction are bleak, and hence no useful purpose would be served by allowing the criminal proceedings to continue. They should, therefore, be quashed by exercising power under Section 482 CrPC. The Court also relied on the decisions in Madhavrao Jiwajirao Scindia v. Sambhajirao
1. Leave granted.
2. The question whether a First Information Report under Sections 420/468/471/34/120-B IPC can be quashed either under Section 482 of the Code of Criminal Procedure or under Article 226 of the Constitution, when the accused and the complainant have compromised and settled the matter between themselves, is the question which arises for decision in this appeal.
3. The identical question fell for the consideration of this Court in the case of B.S. Joshi v. State of Haryana, [JT 2003 (3) SC 277; 2003 (4) SCC 675] wherein also the question arose as to whether criminal proceedings or a First Information Report or complaint filed under Section 498A and 406 IPC by the wife could be quashed under Section 482 CrPC on account of the fact that the offences complained of were not compoundable under Section 320 of the Code. The objection taken in the said case has also been raised by Mr. B.B. Singh, learned advocate for the respondent State.
4. In B.S. Joshi’s case, this Court drew a distinction between compounding an offence as permitted under Section 320 CrPC and quashing of the complaint or criminal proceedings under Section 482 CrPC as also Article 226 of the Constitution. Pointing out that the appellant in the said case had not prayed for compounding the offence as the same was not compoundable, this Court observed with reference to the earlier decision in Pepsi Food Limited v. Special Judicial Magistrate, [JT 1997(8) SC 705; 1998 (5) SCC 749], that where the Court will exercise jurisdiction under Section 482 of the Code could not be inflexible or rigid formulae to be followed by the Courts could not be laid down. Exercise of such power would depend upon the facts and circumstances of each case but with the sole object of preventing abuse of the process of any Court, or otherwise to secure the ends of justice. It was also observed that it is well settled that these powers have no bar, but the same was required to be exercised with utmost care and caution. Accordingly, the learned Judges held that the power of the High Court under Section 482 of the Code to quash Criminal proceedings or FIR or complaint were not circumscribed by Section 320 of the Code of Criminal Procedure.
5. While the appellant herein strongly relied on the decision in B.S. Joshi’s case. Mr. B.B. Singh, learned counsel appearing for the respondent-State urged that having regard to the specific provision in the Code regarding compounding of offences, and indicating what offences may be compromised either with or without the leave of the Court, possibly the decision rendered in B.S. Joshi’s case required a second look. Relying on the decision of this Court in Inspector of Police, CBI v. Rajagopal, [JT 2002 (2) SC 331; 2002 (9) SCC 533], K.G. Prem Shankar v. Inspector of Police and Anr. [JT 2002 (7) SC 30] and also Textile Labour Association and Anr. v. Official Liquidator and Anr. [JT 2004 (Suppl.1) SC 1], Mr. Singh submitted that in B.S. Joshi’s case there was a departure from the view taken in the first of the two aforesaid cases.
6. We have carefully considered the submissions made on behalf of the respective parties and the facts involved in this case, and we are not inclined to accept Mr. Singh’s contention that the decision in B.S. Joshi’s case requires reconsideration, at least not in the facts of this case. What was decided in B.S. Joshi’s case was the power and authority of the High Court to exercise jurisdiction under Section 482 CrPC or under Article 226 of the Constitution to quash offences which are not compoundable. The law stated in the said case simply indicates the powers of the High Court to quash any criminal proceeding or First Information Report or complaint whether it be compoundable or not. The ultimate exercise of discretion under Section 482 CrPC or under Article 226 of the Constitution is with the Court which has to exercise such jurisdiction in the facts of each case. It has been explained that the said power is in no way limited by the provisions of Section 320 CrPC. We are unable to disagree with such statement of law. In any event, in this case, we are only required to consider whether the High Court had exercised its jurisdiction under Section 482 CrPC legally and correctly.
7. In view of the nature of the offences set out in the complaint, the High Court did not consider it an appropriate case for exercising its jurisdiction under Article 226 of the Constitution for quashing the same.
8. In our view, the High Court’s refusal to exercise its jurisdiction under Article 226 of the Constitution for quashing the criminal proceedings cannot be supported. The First Information Report, which had been lodged by the complainant indicates a dispute between the complainant and the accused which is of a private nature. It is no doubt true that the First Information Report was the basis of the investigation by the Police authorities, but the dispute between the parties remained one of a personal nature. Once the complainant decided not to pursue the matter further, the High Court could have taken a more pragmatic view of the matter. We do not suggest that while exercising its powers under Article 226 of the Constitution the High Court could not have refused to quash the First Information Report, but what we do say is that the matter could have been considered by the High Court with greater pragmatism in the facts of the case. As we have indicated hereinbefore, the exercise of power under Section 482 CrPC or Article 226 of the Constitution is discretionary to be exercised in the facts of each case.
9. In the facts of this case we are of the view that continuing with the criminal proceedings would be an exercise in futility.
10. We, accordingly, allow the appeal and set aside the order of the High Court and quash the criminal proceedings pending before the learned Additional Chief Metropolitan Magistrate, Karkardooma Court, Delhi, in FIR No.50 of 1997 dated 31st January, 1997 P.S. Vivek Vihar (East Delhi).
Markandey Katju, J.
11. I have read the judgment of my learned brother Hon. Kabir, J. and I respectfully agree with his conclusion that the appeal should be allowed and the judgment of the High Court as well as the criminal proceedings pending before the Additional Chief Metropolitan Magistrate, Karkardooma Court, Delhi in FIR No. 50 of 1997 dated 31st January, 1997 P.O. Vivek Vihar (East Delhi) against the appellant should be quashed.
12. However, I wish to give a separate concurring judgment in view of the importance of the issue involved in this case.
13. The question involved in this case is whether an FIR under Section 420/468/471/34/120-B IPC can be quashed under Section 482 CrPC or Article 226 of the Constitution when the accused and the complainant have compromised and settled the matter between themselves.
14. The allegations in the FIR are as follows:
‘Statement of Sanjay Pal S/o Mahendra Singh Pal R/o House No. A-25, Jhilmil Colony, Vivek Vihar, Delhi, stated that I reside at the above mentioned address with my family. I got financed a Maruti Van bearing No. DL- 1CB-4065 from Shri Manoj Kumar Sharma – Vijay Lakshmi Finance and Investment Company before two years back for a consideration amount of Rs. 30,000/- and I paid Rs. 3954/- as first installment. After that Shri Man Mohan Sharma R/o D-131, Jhilmil Colony, came and told me that your finance is fabricated one, that is why your vehicle has not been financed by me from Real Auto Deals which is run by my brother-in-law. I have received the payment given by you and your file. He asked me to give return the first R.C. He gave me the new R.C.. I returned him the old R.C. He suggested me that now the financer of your vehicle is Real Auto Deals. I was shocked that how the vehicle got transferred without signing any form and paper. Man Mohan Sharma used to receive the installments in cash every month from me. The receipts issued to me put up with neither rubber stamp nor used the letter head of Real Auto Deals. The cheques received from me, encashed him in different-different names instead depositing in the account of Real Auto Deals. When it has come to my notice that he is playing fraud with me, then visited the bank and got stopped the payment of the cheques. He came to me when the cheque was dishonoured and asked me why you stop the payment. I explained him that I have already sent you a notice stating that I will make the payments of the installments in the name of Real Auto Deals but you are not doing so, therefore, I got stopped the payments. Thereafter, on 27.12.1995 at about 10 O’clock he came to me in Jhilmil along with an unknown person, I can recognize him if he comes to me, took my said Maruti Van with his help without my consent by showing me a paper duly stamped by the police. Vijay Lakshmi Finance, Real Auto Deals and Man Mohan Sharma, have sold my vehicle to some other place by making my forged signatures and by playing fraud with me, in connivance of each other. The appropriate legal action may kindly be taken against all these persons. Statement heard which is correct. Sd/- English. Sanjay Pal 31.1.97 Attested Sd/- Snglish Satya Narayan ASI 31.1.97’.
15. A perusal of the FIR shows that the allegations against the appellant were that he forged documents in respect of a vehicle and thereafter indulged in cheating and deposited the cheques received from the complainant against financing of the vehicle in different accounts. It is also alleged in the FIR that the appellant sold the vehicle of the complainant to some other party by making forged signature and by playing fraud with him.
16. On the basis of the above FIR charges were framed against the appellant and co-accused Man Mohan Sharma.
17. The appellant filed a writ petition before the High Court for quashing the FIR on the ground that the matter had been compromised between the complainant and the accused. In that writ petition an affidavit was filed by the complainant stating that in view of the settlement between the parties he is withdrawing the allegations against both the writ petitioners and he is also withdrawing the FIR. As per the amicable settlement a sum of Rs. 45,000/- would be paid to the appellant Manoj Sharma and a further sum of Rs. 45,000/- would be paid to the co-accused Man Mohan Sharma.
18. However, the Delhi High Court by the impugned judgment dated 17.8.2007 rejected the writ petition and hence this appeal.
19. It may be mentioned that under Section 320(1) CrPC certain offences in the IPC can be compounded by the persons mentioned in the 3rd column of the table in that provision. Also, in view of Section 320(2) certain other offences can be compounded with the permission of the Court. However, Section 320 (9) specifically states:
‘No offence shall be compounded except as provided by this Section’.
20. A perusal of Section 320 shows that offences under Section 468, 471, 34 and 120B IPC (with are mentioned in the FIR in question) cannot even be compounded with the permission of the Court. In fact, Section 320(9) CrPC expressly states that no offence shall be compounded except as provided by this Section. It apparently follows, therefore, that except for Section 420 IPC, which can be compounded with the permission of the Court in view of Section 320(2), the other provisions mentioned in the FIR in question could not be compounded even with the permission of the Court. It, prima facie, seems to follow that the offences mentioned in the FIR were not compoundable except in relation to the allegations about Section 420 IPC.
21. There are other provisions in the IPC e.g. Section 498A which apparently cannot be compounded even with the permission of the Court in view of Section 320 (9) CrPC.
22. However, this was creating a lot of difficulty and hardship to the public and hence a way out was found by this Court in B.S. Joshi and others v. State of Haryana [JT 2003 (3) SC 277; 2003(4) SCC 675; AIR 2003 SC 1386]. In that decision this Court referred to its own earlier decision in Madhu Limaye v. State of Maharashtra [1977 (4) SCC 551] in which it was held (vide para 8) that the power under Section 482 should not be exercised when there is an express bar in some other provision of the Code. The Court in B.S. Joshi’s case (supra) also referred to the decision in Surendra Nath Mohanty v. State of Orissa [JT 1993 (3) SC 408; AIR 1999 SC 2181] which held that since the offence under Section 326 IPC is not compoundable the High Court cannot compound the offence.
23. Despite the above decisions this Court in B.S. Joshi’s case (supra) relying on its own decision in State of Karnataka v. L. Muniswamy [1977 (2) SCC 699] observed that the High Court under Section 482 CrPC can quash the criminal proceedings if it comes to the conclusion that the ends of justice so requires e.g. where there would almost be no chance of conviction. In a case under Section 498A IPC if the parties enter into a compromise the chances of an ultimate conviction are bleak, and hence no useful purpose would be served by allowing the criminal proceedings to continue. They should, therefore, be quashed by exercising power under Section 482 CrPC. The Court also relied on the decisions in Madhavrao Jiwajirao Scindia v. Sambhajirao
