BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27/07/2009
CORAM
THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI
Criminal Original Petition No.729 of 2009
1.Gobi
2.Rajesh
3.Kaliappan
4.Jeyachandran
5.Natchimuthu .. Petitioners
vs.
1.The State Rep. By its
The Inspector of Police,
Kannivadi Police Station,
Dindigul District.
2.Krishnamoorthy .. Respondents
* * *
Prayer
Criminal Original Petition filed under Section 482 of the Code of
Criminal Procedure praying to pass an order to quash the order passed in
S.C.NO.95 of 2003 dated 18.12.2003 by the learned Assistant Sessions Judge(Chief
Judicial Magistrate), Dindigul.
* * *
!For Petitioners ... Mr.T.Jeen Joseph
^For Respondent ... Mr.P.Rajendran For R1
Govt. Advocate(Crl. Side)
Mr.Sasikumar for R2
:ORDER
This petition has been filed by the petitioner seeking for a direction to
quash the order passed in S.C.No.95 of 2003 dated 18.12.2003 by the learned
Assistant Sessions Judge(Chief Judicial Magistrate), Dindigul.
2. The gist of the case is as follows:
(i) A criminal case has been instituted by the second respondent against
the petitioners for the offence under Sections 147, 148, 436 r/w 149 & 506(ii)
of I.P.C and the same was tried before the learned Assistant Sessions Judge
(Chief Judicial Magistrate), Dindigul and after trial, the learned Magistrate
convicted and sentenced the petitioners in S.C.No. 95 of 2003 as per the
judgment dated 18.12.2003 as follows:
Sl Conviction Sentence
No. Recorded Imposed
1. 147 I.P.C To Pay a fine of Rs.100/-(Rupees One Hundred Only)
each and in default to undergo Rigorous Imprisonment
for a period of one month.
2. 436 r/w 149 I.P.C To undergo Rigorous Imprisonment for a period of
one year each and to pay a fine of Rs.500/-(Rupees
Five Hundred Only) each and in default to undergo
Rigorous Imprisonment for a period of three months.
(ii) Against the judgment passed by the learned Assistant Sessions Judge
(Chief Judicial Magistrate), Dindigul, the petitioners preferred an appeal in
Crl.A.No.1 of 2004 before the Fast Track Judge (Additional Sessions Judge),
Dindigul and the same is pending before the said Court.
3. Learned counsel appearing for the petitioners submitted that the
petitioners and the de-facto complainant are closely related and they have
entered into a compromise and they have filed a compromise petition before the
learned Fast Track Judge (Additional Sessions Judge), Dindigul on 31.05.2007 and
the same was returned by the learned Judge without any endorsement. Therefore,
the petitioners has approached this Court to quash the conviction and sentence
passed in S.C.NO.95 of 2003 by the learned Assistant Sessions Judge(Chief
Judicial Magistrate), Dindigul as per judgment dated 18.12.2003.
4. Learned counsel relied on the judgment in Mahesh Chand and another vs.
State of Rajasthan reported in 1991 Supreme Court Cases (Cri) 159, wherein the
Supreme Court has held as follows:
“The offence not compoundable, however, in view of nature of the case and
circumstances under which the offence committed, the trial Court directed to
accord permission to compound the offence.”
5. Learned counsel appearing for the petitioner has also relied on the
judgment in B.S.Joshi and others vs. State of Haryana and another reported in
(2003) 4 Supreme Court Cases 675 for the same proposition.
6. Heard Mr.T.Jeen Joseph, learned counsel appearing for petitioner,
Mr.P.Rajendran, learned Government Advocate(Crl. Side) appearing for the first
respondent and Mr.Sasikumar, learned counsel appearing for the second respondent
and perused the materials available on record.
7. When the matter came up for hearing, both the petitioners and the de-
facto complainant, who is P.W.1 before the trial Court were present and they
have also filed a compromise memo signed by both parties and that is recorded.
8. The petitioners were charged for the offence under Sections 147, 148,
436 r/w 149 & 506(ii) of I.P.C. However, they have found guilty and sentenced
for the offence under Section 147 & 436 r/w 149 of I.P.C by the learned
Assistant Sessions Judge(Chief Judicial Magistrate), Dindigul by judgment dated
18.12.2003. Against which an appeal is also pending before the learned Fast
Track Judge (Additional Sessions Judge), Dindigul.
9. Now, the petitioners have come forward with this petition before this
Court stating that they have filed compromise petition before Fast Track Court,
Dindugal, where the appeal is pending and it was not admitted by the said
Court.
10. Now the petitioners have invoked the inherent powers of this Court
under Section 482 of Cr.P.C to quash the conviction and sentence passed in
S.C.No.95 of 2003 by the Assistant Sessions Judge(Chief Judicial Magistrate),
Dindigul on the basis of the compromise entered between the parties.
11. The Section 482 of Cr.P.C has held as follows:
“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 the Code, or to
prevent abuse of the process of any Court or otherwise to secure the ends of
justice.”
12. In the judgment in State of Haryana vs. Bhajan Lal, reported in 1992
SPP (1) SCC 335, the principles and guidelines for quashing of complaints, the
First Information Report and criminal proceedings have been settled in terms
thereof.
13. In my considered view, the inherent powers under Section 482 of Cr.P.C
cannot be invoked to set aside the conviction and sentence and the only course
available to the accused/petitioners is to prefer an appeal or revision.
14. However, the facts considered in Mahesh Chand and Another vs. State of
Rajasthan reported in 1991 Supreme Court Cases (Cri) 159, is that the accused
were acquitted by the trial Court, but they were convicted by the High Court for
the offence under Section 307 I.P.C. However, that offence was not compoundable
under law, the parties wanted to treat the case as a special case as there has
been a compromise. The Honourable Supreme Court had considered this point and
has stated as follows:
“3. We have our anxious consideration to the case and also the plea put
forward for seeking permission to compound the offence. After examining the
nature of the case and the circumstances under which the offence was committed,
it may be proper that the trial Court shall permit them to compound the
offence.”
15. I have no hesitation to follow the parameter laid down in the above
case, considering the fact that the de-facto complainant and the accused are
closely related, the alleged offence are under Section 147 & 436 r/w 149 I.P.C
and the conviction and sentence are minimum and the parties have compromised
among themselves and the parties are permitted to compound the offence, though
they are not non-compoundable.
16. In my considered view, the appropriate forum is that the Fast Track
Court, Dindigul, where the criminal appeal is pending for the consideration of
compounding the offence, though the offences are non-compoundable, the Appellate
Court is bound by the above judgment of the Hon’ble Supreme Court and can
compound the offence.
17. Therefore, the petitioners and the de-facto complainant are
directed to appear before the Fast Track Court, Dindigul, wherein the criminal
appeal is pending to file a petition for compounding along with compromise memo
and the learned Fast Track Judge (Additional Sessions Judge), Dindigul is
directed to permit the petitioners and de-facto complainant to compound the
offence even though it is non-compoundable as the offences are not serious in
nature and the sentence is very minimum.
With the above said direction, this petition is disposed of.
pm
To
1.The Fast Track Judge
(Additional Sessions Judge),
Dindigul.
2.The Assistant Sessions Judge
(Chief Judicial Magistrate),
Dindigul.
3.The Inspector of Police,
Kannivadi Police Station,
Dindigul District.
4.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.