IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1216 of 2006
1. Atul Chandra Mahto
2. Mohan Mahto
3. Umesh Mahto
4. Dilip Kumar Mahto ... ... Petitioners
Vs.
1. The State of Jharkhand
2. Chandra Deo Mahto ... ... Opposite Parties
CORAM: HON'BLE MR. JUSTICE PRASHANT KUMAR
For the Petitioners: Mr. Brij Bihari Sinha, Advocate
For the Opposite Party No. 2 : Mr. Prabir Chatterjee, Advocate
...
8/01/09/2009
This is an application for quashing the order dated
29.06.2008 passed by learned 4th Additional Sessions Judge,
Bokaro in S.T. No. 91 of 2003 whereby and whereunder he
rejected the application of the petitioners for recalling the
prosecution witnesses. The petitioners further pray for quashing
the entire criminal proceeding in connection with S.T. No. 91 of
2003 on the basis of joint compromise petition filed by the
parties.
2. It appears that on the basis of written report filed by
the informant, Chandra Deo Mahto, Pindrajora P.S. Case No. 19
of 2002 dated 14.04.2002 under Sections 147, 148, 323 and 307
of the I.P.C. instituted and police took up investigation. After
completing investigation, police submitted charge-sheet and
accordingly cognizance was taken under the said Sections. Since,
the offence under Section 307 of the I.P.C. is exclusively triable by
the court of Sessions, the case was committed to the court of
Sessions and accordingly S.T. No. 31 of 2003 was instituted. It
further appears that charge framed against the petitioners under
Sections 148, 149, 323, 307 of the I.P.C. and thereafter the
witnesses were examined. The record further reveals that the
statement of accused persons (petitioners) had already been
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recorded under Section 313 Cr.P.C. on 23.02.2004. It further
appears that on 26.04.2006, a compromise petition filed by the
parties, but the same has been rejected by the court vide order
dated 01.06.2006 on the ground that the offence under Section
148, 149 and 307 of the I.P.C. are not compoundable. Thereafter,
another application filed on 22.06.2006 for recalling the
prosecution witness Nos. 1, 2, 3, 4 and 5 under Section 311 of
the Cr.P.C. because the parties had compromised their case
outside the court. The said application also rejected by the
impugned order. Against that the present case has been filed.
3. It is submitted by learned counsel for the petitioner
that if the parties are inclined to settle the dispute amicably then
in such circumstance, the trial court ought to have granted
permission to compromise the case and it is not in the interest of
justice to proceed any more. Accordingly, it is submitted that the
refusal to recall the witnesses on the basis of joint compromise
petition is an abuse of the process of the court, therefore, the
same cannot be sustained.
4. On the other hand, learned Additional P.P. submits
that admittedly the offence under Sections 148, 149 and 307 of
the I.P.C. is not compoundable as per the provisions contained in
the Code of Criminal Procedure. It is further submitted that the
case of the prosecution has already been closed and the
statement of accused under Section 313 Cr.P.C. had also been
recorded much before the date of filing of compromise petition.
Under the said circumstance, after the close of the case of
prosecution the question of recalling prosecution witnesses that
too on the behest of defence does not arise. It is submitted that
acquittal of accused on the basis of compromise for an offence
under Section 307 of I.P.C. is against the society and it involve
public policy. Accordingly, it is submitted that there is no
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illegality in the order of court below which requires any
interference by this Court.
5. Having heard the submissions, I have gone through
the record of the case. From perusal of Annexure-3, it appears
that the statement of accused persons recorded under Section
313 Cr.P.C. on 23.02.2004. It further appears that the
compromise petition has been filed on 26.04.2006, which was
rejected by order dated 01.06.2006. Thereafter, another
application has been filed for recalling the witnesses on
22.06.2006 which was disposed of by the learned court below
vide order dated 29.06.2006. Thus, it is apparent that on
22.06.2006 when the application for recalling of witnesses has
been filed, no compromise petition pending in the court below,
because the same has already been rejected vide order dated
01.06.2006. Thus, the ground for recalling of the witnesses is not
available to the petitioners. Moreover, it appears that the
compromise petition has been rejected by the learned court below
taking into account that it is against the interest of the society to
dispose of cases of serious nature like the cases under Section
307 of the I.P.C. on the basis of compromise. In Madan Mohan
Abbot Vs. State of Punjab reported in (2008) 4 SCC 582
Hon’ble Supreme Court held that if dispute between the parties is
personal and absolutely no public policy involved then the High
Court in exercise of power under Section 482 of Cr.P.C. can
quash the criminal proceeding on the basis of compromise even
in the cases involving non-compoundable offences. In the instant
case offence is under Section 307 of the I.P.C. In my view same is
serious in nature. Certainly the offence under Section 307 of
I.P.C. involves public policy because if such cases are allowed to
be disposed of on the basis of compromise then there is every
chance of further detoriation of law and order. Thus, I find that
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learned court below had rightly concluded that acceptance of
compromise in the instant case is not in the interest of society.
6. Section 311 gives power to the court to recall any
witness already examined if the court is satisfied that the
evidence is essential for the just decision of the case. From
perusal of impugned order dated 22.06.2006, it is clear that the
petitioners filed application for recalling the prosecution witness
Nos. 1, 2, 3, 4 and 5 on the ground that the party compromised
their case outside the court. Admittedly, the charge has been
framed under Sections 148, 149, 323 and 307 of the I.P.C. It is
worth mentioning that the offence under Sections 148, 149 and
307 of the I.P.C. are not compoundable. Thus, even if the said
compromise will be brought on record by the prosecution
witnesses, the fate of the case will not change. Under the said
circumstances, recalling of the prosecution witnesses is not
essential for the just decision of the present case. Thus, I find
that the learned court below has rightly refused to recall the
aforesaid prosecution witnesses for further cross-examination.
7. In view of the discussion made hereinbefore, I find
that there is no illegality in the order of the court below, which
requires any interference by this Court. In the result, I find no
merit in this application, the same is dismissed.
(Prashant Kumar, J.)
Sunil/N.A.F.R.