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Don’t Want To Encourage Politicians To Settle Cases Against Them After Conviction: Bombay HC

 

In a significant development with far reaching consequences that cannot be dismissed lightly, the Aurangabad Bench of Bombay High Court in Madhav Sathe & Anr v State of Maharashtra & Anr in Criminal Application No. 1120 of 2021 has dismissed a plea filed by two politician-applicants seeking quashing of a conviction order on the ground that they had settled the dispute with the victim-complainant. It must be apprised here that the applicants named Madhav Sathe and Shivaji Sonkamble were convicted under Sections 332 and 353 of the Indian Penal Code for assaulting and obstructing duty of a public servant (the complainant) and were sentenced to 6 months of rigorous imprisonment and fine of Rs 2000 by a Magistrate Court in Mukhed in Maharashtra. They filed an application seeking acquittal on the ground that the applicants had arrived at an amicable settlement with the complainant but it was rejected by the Sessions Court on the ground that the offence under Section 332 was non-compoundable. So then they approached the High Court Bench at Aurangabad.

To start with, Justice VK Jadhav who has authored this brief, brilliant, balanced and bold judgment for himself and Justice SG Dige first and foremost sets the ball rolling by unfolding the purpose of the petition in para 2 wherein it is put forth that, “This pertains to quashing of the criminal proceeding postconviction for non-compoundable offence on settlement between the applicants-convicts and respondent no.2-informant.”

To put things in perspective, the Bench then envisages in para 3 that, “Brief facts giving rise to the present criminal application are as follows:

a. Respondent no.2-informant is a public servant. On 13.05.2011 at about 13.00 hrs. in the office of Minor Irrigation, Mukhed, respondent no.2-complainant was busy with his official work. The applicants made a phone call to respondent no.2- complainant, however, he did not receive their phone call. Consequently, both the applicants went to his office and extended beating to him in the office itself. The respondent-informant sustained bleeding injury on his nose. He was rescued by the office staff. The respondent-informant was taken to the hospital. On the basis of the complaint lodged by the respondent-informant, crime no. 76 of 2011 came to be registered in the concerned police station and after completion of the investigation, charge-sheet came to be submitted before the court which is numbered as R.C.C. No. 104 of 2011. Both the accused persons were tried vide R.C.C. No. 104 of 2011 for the offence punishable under Sections 353, 332, 504 and 506(i) read with Section 34 of Indian Penal Code.

b. Learned Judicial Magistrate, First Class, Mukhed, District Nanded, by judgment and order dated 26.06.2013 in R.C.C. No. 104 of 2011, has convicted both the accused persons for the offence punishable under Sections 332 and 353 r/w 34 of IPC and sentenced them under Section 332 r/w 34 of IPC to suffer Rigorous Imprisonment for six months and to pay fine of Rs.2,000/- (Rupees Two Thousand only) each, in default to suffer Simple Imprisonment for one month. No separate sentence has been passed for the offence punishable under Section 353 r/w 34 of IPC.

c. Being aggrieved by the same, the applicants have preferred Criminal Appeal No. 12 of 2013 before the Sessions Court, Mukhed. The said criminal appeal is still pending before the Additional Sessions Judge, Mukhed. The applicants and respondent no.2-informant filed an application on 05.12.2018 below Exhibit 26 before the Additional Sessions Judge, Mukhed praying therein that the parties have arrived at an amicable settlement out of the court and thus, the applicants may be acquitted in view of the compromise. By order dated 12.03.2019 passed below Exhibit 26, the learned Additional Sessions Judge, Mukhed has rejected the application with the observations that the offence punishable under Section 332 of IPC is non-compoundable and as such the parties cannot be permitted to compound the said offence.

d. The applicants-original accused have thus approached this Court by filing the present Criminal Application under Section 482 of Criminal Procedure Code for quashing the criminal proceeding post-conviction for non-compoundable offence on settlement between them and the informant-complainant.”

Needless to say, after hearing both the sides, the Bench then observes in para 10 that, “We have carefully considered the submissions advanced by the learned counsel for the respective parties and the learned APP for the respondent-State. With their able assistance, we have perused the grounds taken in the application, annexures thereto, the reply filed by respondent no.2-informant along with the compromise deed and the case law cited by the respective parties.”

Simply put, the Bench then states in para 11 that, “In the case of Kiran Tulshiram Ingale (supra), the Division Bench of this Court has dealt with the preliminary objection raised by the respondent State to the maintainability of the application under Section 482 of Cr.P.C. for the purposes of quashing of the criminal proceedings at a stage when the criminal proceedings have led to conviction of the accused. The Division Bench has given a finding in the affirmative and upheld the maintainability of such application with detailed reasons. The Division Bench has referred the observations made by the Apex Court in the case of B. S. Joshi v. State of Haryana (2003 Cri.L.J. 2028). The Division Bench has answered the question regarding maintainability of an application filed under Section 482 of Cr.P.C. even after conviction of the applicant, as in the affirmative.”

Quite significantly, it cannot be lost on us that the Bench then without mincing any words observes unequivocally in para 12 that, “When the Special Leave Petition in Gian Singh v. State of Punjab and another. (2000) 15 SCC 118 came up for hearing, the two-Judge Bench of the Supreme Court doubted the correctness of the decisions of the Supreme Court in B. S. Joshi and others v. State of Haryana and another [(2003) 4 SCC 675], Nikhil Merchant v. Central Bureau of Investigation and another [(2008) 9 SCC 677] and Manoj Sharma v. State and others [(2008) 16 SCC 1] and referred the matter to a larger Bench. Hence, the question before the larger Bench was with regard to the inherent power of the High Court under Section 482 of Cr.P.C. for quashing criminal proceedings against an offender who has settled the dispute with the victim of the crime but the crime in which he is allegedly involved is non-compoundable under Section 320 of Cr.P.C. The larger Bench thus, in Gian Singh v. State of Punjab and Others [(2012) 10 SCC 303], in para 61, summarised the position that emerged from the discussion. Para 61 is reproduced hereinbelow:

“61. … 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 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz. : (1) to secure the ends of justice, or (ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.”

In para 58 of the judgment, the larger Bench of the Supreme Court has made the following observations which may be useful in deciding the present criminal application.

“58. Where the High Court quashes a criminal proceeding having regard to the fact that the dispute between the offender and the victim has been settled although the offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrongdoing that seriously endangers and threatens the well-being of the society and it is not safe to leave the crime-doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without the permission of the court. In respect of serious offences like murder, rape, dacoity, etc., or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between the offender and the victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to the victim and the offender and the victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or FIR if it is satisfied that on the face of such settlement, there is hardly any likelihood of the offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard-and-fast category can be prescribed.””

No less significant is what is then stated in para 13 that, “In the case of Maya Sanjay Khandare (supra) a Full Bench was constituted to answer the following two questions:

(A) In a prosecution which has culminated in a conviction, whether the power u/s. 482 Cr.P.C. ought to be exercised for quashing the prosecution/ conviction altogether, (instead of maintaining it and considering the issue of modification of the sentence) upon a settlement between the convict and the victim/complainant?

(B) Whether the broader principles/parameters as set out in Gian Singh v. State of Punjab and another (2012) 10 SCC 303, Narinder Singh v. State of Punjab (2014) 6 SCC 466 and Parbatbhai Aahir and others v. State of Gujrat (2017) 9 SCC 641 have been correctly applied in deciding Udhav Kisanrao Ghodse, Ajmatkhan Rahematkhan and Shivaji Haribhau Jawanhal?

In para 33, while answering question (a), the Full Bench has made the following observations:

“33. While answering Question (A) we may observe in the light of the settled legal position as under:

At the conclusion of the criminal trial the Court on finding the evidence on record led by the prosecution to be sufficient to prove the guilt of the accused would proceed to convict the accused. The remedy of challenging the order of conviction is available to the accused by way of an appeal. Any compromise entered into post-conviction for an non-compoundable offence cannot by itself result in acquittal of the accused. Similarly the Court has no power to compound any offence that is non-compoundable and not permitted to be compounded under Section 320 of the Code. The compromise entered into therefore is just a mitigating factor that can be taken into account while hearing the appeal/revision challenging the conviction and which factor has to be taken into consideration while imposing appropriate punishment/sentence. It is not permissible to set aside the judgment of conviction at the appellate/revisional stage only on the ground that the parties have entered into a compromise. In a given case the appellate Court/revisional Court also has the option of not accepting the compromise. Thus if the judgment of conviction cannot be set aside in an appeal/revision only on the ground that the parties have entered into a compromise similar result cannot be obtained in a proceeding under Section 482 of the Code.””

It is worth noting that the Bench then observes in para 15 that, “Though the Hon’ble Supreme Court in Gian Singh v. State of Punjab and Others (supra) has discussed certain categories of cases, however, further held that the list is illustrative and not exhaustive. Each case will depend on its own facts and no hard and fast category can be prescribed.”

Damningly, the Bench then reveals in para 16 that, “In the facts of the instant case, respondent no.2-informant is a public servant. The applicants are politicians. Applicant no. 1 herein is a Member of the Zilla Parishad. Respondent no.2- informant is a public servant working in the office of Minor Irrigation, Mukhed. At the relevant date, time and place, respondent no.2-informant was busy in discharging his official work. The applicants went there and extended him beating in the office itself on the ground that he did not receive their phone call.”

More damningly, the Bench then also is at pains to point out in para 17 that, “We have carefully gone through the affidavit-in-reply of respondent no.2-informant filed in the present application. In para 3 of the affidavit-in-reply, it is stated that the applicants are politicians having good future in politics and respondent no.2- informant is also in service. Though in the compromise petition, it is stated that the applicants have tendered an apology and therefore, respondent no.2-informant is not interested in their conviction, however, in our considered opinion, the applicants herein have not shown repentance on their part and even they have not assured as not to repeat the mistake in future.”

Most damningly, the Bench then is quite forthright to point out in para 18 that, “We have noticed that nowadays there is a growing tendency to make assault on public servants discharging their official duties under various pretext. There are cases of assault on the public servants in connection with excavation of sand illegally from the river bed, assault on doctors and hospital staff and causing damage to the public property, assault on R.T.O. officials by the errant drivers, assault on the officials of M.S.E.D.C.L. and the drivers and conductors of M.S.R.T.C., assault on police staff enforcing the Covid norms at public places etc. This tendency needs to be discouraged by taking stringent view in such matters. We are aware that each case will depend on its own facts and no straight jacket formula can be prepared to deal with it.”

Finally and far most significantly, the Bench then holds in para 19 that, “In the facts of the instant case, the applicants-accused persons have settled the matter amicably with respondent no.2- complainant (informant) for their good future in politics. In our considered opinion, the ends of justice could not be secured by accepting such type of settlement. We are not inclined to set up an altogether new trend encouraging the politicians, as in the present case, to settle their dispute post-conviction to achieve better future political prospects. However, the appeal preferred by the applicants against the judgment and order of conviction against them bearing Criminal Appeal No. 12 of 2013 is still pending before the learned Additional Sessions Judge, Mukhed. Thus, without getting influenced by the observations made herein above, the learned Judge of the appellate court may consider the settlement arrived at between the parties as a mitigating circumstance to reduce the sentence. However, we are not inclined to quash the criminal proceedings. Hence, we proceed to pass the following order:

ORDER

Criminal Application No. 1120 of 2021 is hereby dismissed.”

Of course, it has to be said after considering this case from all angles that Assistant Public Prosecutor MM Nerlikar has very rightly pointed out to the conviction order which recorded that the “conduct of the accused is unwarranted and if dealt with soft hands, a very bad message will go to the society”. It also cannot be lightly dismissed that the applicants did not show repentance on their part or assurance that such conduct will not be repeated in future. What also went against the applicants is that the Court held that the settlement arrived between the parties was not enough to secure the ends of justice in the present case. But we also need to bear in mind that the Aurangabad Bench of Bombay High Court left it to the Sessions Court to consider the settlement arrived at between parties would be a mitigating circumstance to reduce the sentence awarded to the applicants. The message sent out in this case is pretty loud and clear: Court does not want to encourage politicians to settle cases against them after conviction. The reason is quite ostensible: If this is allowed unhindered then the politicians will get away after doing anything by pressurizing the other party that is the complainant or offering him bribe and settle the case which is nothing but a mockery of law, justice and the “rule of due process of law”!

Sanjeev Sirohi,

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