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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 410 OF 2008
1) MOHD. SHOAIB HAIDER KHAN )
aged 36 years, Occ.: Business, )
residing at 72, Lalji Somji Building, )
1st Floor, R/No.4, Tandel Street (N),)
Dongri, Bombay - 400 009. )
2) SAYYAD EJAZ KADRI @ EJJU
SAYYAD SAHAB, Aged about 37,
)
)
Occ.: Business, residing at Swagat )
Unique, Plot No.302, Rora Complex,)
Meera Road (P), Thane. )
(Presently in Jail at Thane) )
3) MOHAMMED TALHA ABDUL )
MUTALI ANSARI, aged about 33, )
Occ. Business, residing at Natkar )
Complex, D-Wing, Room No.103, )
Kausa- Mumbra, Dist.Thane. )
(Presently in Jail at Thane. ) ... ... Applicants.
(Orig.Accused Nos.2 & 3)
VERSUS
1) THE STATE OF MAHARASHTRA )
at the instance of Antop Hill Police )
Station, C.R. No.22/2008. )
2) MR. SALIM ABU SAMA KHAN )
aged 36 years, residing at MHADA )
colony, Transit Camp, Bldg. No.6A, )
Room No.214, Antop Hill, Bombay )
400 037. ) ... .... Respondents.
Mr. Iqbal Y. Solkar for the Applicants.
Mrs. A. S. Pai, APP for the State.
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CORAM : BILAL NAZKI and
A. A. KUMBHAKONI, JJ.
RESERVED ON : 16TH SEPTEMBER, 2008.
DELIVERED ON: 22ND OCTOBER, 2008.
(At 4.30 p.m.in Court)
JUDGMENT (Per Bilal Nazki, J.) :
This application has been filed to quash the FIR No.22/2008
registered by the Antop Hill Police Station, Mumbai, on 21st January, 2008
for the offences under Section 326 and 34 of the Indian Penal Code. The
main ground for quashing of FIR is that the complainant and the applicants
have settled the differences in between themselves.
2. It may be stated at the outset that the criminal law is based on the
principles that the offences committed are against the State and also against
the victim. Therefore, the scheme of the Criminal Procedure Code is such
that most of the serious offences are not compoundable, less serious
offences are compoundable with the permission of the court and some trivial
offences are compoundable at the behest of the complainant. If this scheme
is kept in mind, then it will be clear that even if the victims or the injured
are prepared to compromise the matter the State itself insists on conviction
and punishment because the offence is against the State. In any case the
applicants have not come to this court for compounding of the offence but
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have come for quashing of the FIR against them.
3. Now the principles laid down by the Supreme Court are so well
enumerated that it will not be difficult to come to a conclusion whether in
the present case the FIR could be quashed or not. It may be remembered
that the criminal juris prudence in this country is that once an investigation
discloses commission of an offence it should reach to its normal conclusion
by way of a fair trial. We will not deal with many judgments which have
been delivered from the Privy Council till date. But we will only refer to the
principles which have been followed in State of Haryana and Ors. V/s Ch.
Bhajan Lal and others,
reported in AIR 1992 Supreme Court 604, because
the principles laid down in this judgment were in fact the principles which
had been laid prior to this judgment and were consolidated by this judgment
and even after 1992 these principles have been followed. In paragraph 108
of the judgment the following principles were laid down :
1. Where the allegations made in the First Information Report or
the complaint, even if they are taken at their face value and
accepted in their entirety do not prima facie constitute any
offence or make out a case against the accused.2. Where the allegations in the First Information Report and
other materials, if any, accompanying the F.I.R. do not disclose
a cognizable offence, justifying an investigation by police
officers under Section 156(1) of the Code except under an
order of a Magistrate within the purview of Section 155(2) of
the Code.::: Downloaded on – 09/06/2013 14:00:37 :::
43. Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same do
not disclose the commission of any offence and make out acase against the accused.
4. Where, the allegations in the F.I.R. do not constitute a
cognizable offence but constitute only a non-cognizableoffence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.5. Where the allegations made in the FIR or complaint, are so
absurd and inherently improbable on the basis of which noprudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.6. Where there is an express legal bar engrafted in any of the
provisions of the Code or the concerned Act (under which a
criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a
specific provision in the Code or the concerned Act, providingefficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala
fide and/or where the proceeding is maliciously instituted with
an ulterior motive for wreaking vengeance on the accused and
with a view to spite him due to private and personal grudge.In as much as the scope of Section 320 of the Code is concerned, the
Constitution Bench of the Supreme Court in the case of Union Carbide
Corporation and others v/s Union of India and others, reported in (1991)
4 SCC 585, has observed thus:
“84. Learned Attorney General said that Section 320 Criminal
Procedure Code is “exhaustive of the circumstances and conditions
under which composition can be effected” and that “the courts
cannot go beyond a test laid down by the legislature for::: Downloaded on – 09/06/2013 14:00:37 :::
5determining the class of offences that are compoundable and
substitute one of their own”. Learned Attorney General also ref
erred to the following passage in Biswabahan Das v. Gopen ChandraHazarika.
“If a person is charged with an offence, then unless there is some
provision for composition of it the law must take its course and
the charge enquired into resulting either in conviction oracquittal.”
He said that “if a criminal case is declared to be non-
compoundable, then it is against public policy to compound it, and
any agreement to that end is wholly void in law.” (See MajibarRahman v. Muktashed Hossein); and submitted that court “cannot
make the legal which the law condemns”. Learned AttorneyGeneral stressed that the criminal case was subject matter of any
compromise or settlement. There is some justification to say that
the statutory prohibition against compounding of certain class ofserious offences, in which larger social interests and social security
are involved, is based on broader and fundamental considerations
of public policy. But all statutory prohibitions need not necessarily
partake of his quality. The attack on the power of the apex Court to
quash the criminal proceedings under Article 142(1) is ill-
conceived. But the justification for its exercise is another matter.”
4. Now in the light of these principles and in the light of the application
itself it can be safely said that the FIR discloses cognizable offence having
been committed. The affidavit filed by the Assistant Police Inspector further
states that during the course of investigation, one chopper used in incident
was recovered at the instance of applicant No.1. The motor cycle used in the
incidence belonged to Applicant No.1. Not only the statement of the
complainant was recorded but the statement of three eye witnesses were
also recorded, who were present at the spot of incidence. Even if it is
accepted that the applicants and the complainants have resolved their
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disputes, even then there will be witnesses, who may testify during the trial
against the accused. Therefore, we cannot scuttle the prosecution at this
stage.
5. Learned Counsel for the applicants has relied on various judgments of
the Supreme Court in which the offences were allowed to be compounded,
being the case of Mahesh Chand and another v/s State of Rajasthan,
reported in 1990 (Supp) Supreme Court Cases 681. This was an appeal
pending before the Supreme Court where the conviction under Section 307
of the Indian Penal Code had been challenged and during the hearing of the
appeal the parties want ed to compound the offence. The Supreme Court
noted, “The accused were acquitted by the trial court, but they were convicted
by the High Court for the offence under Section 307 IPC. This offence is not
compoundable under law. The parties, however, want to treat it as a special
case, in view of the peculiar circumstances of the case.” Then the Supreme
Court in paragraphs 3 and 4 held as under:
“3. We gave our anxious consideration to the case and
also the plea put forward for seeking permission to compound theoffence. 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.
4. We, therefore, direct the trial Judge to accord permission to
compound the offence, after giving an opportunity to the parties
and after being satisfied with the compromise agreed upon. The::: Downloaded on – 09/06/2013 14:00:37 :::
7connected papers filed in this connection before this Court be
transmitted to the trial court for the purpose. The parties, if they
want, may file additional documents.
Obviously the court considered this case to be a special case and exercised
the power under Article 141 of the Constitution of India and as such this
judgment is not a precedent for this court to follow. It may also be noted
that while the Supreme Court passed this order the whole evidence was
before the Supreme Court as the accused were already convicted. We are
only dealing with the FIR.
6. The case of Madan Mohan Abbot v/s State of Punjab, reported in
(2008) 4 Supreme Court Cases 582, is the case where the offence was
allowed to be compounded by the Supreme Court on the ground that it
came to the following conclusion:
“We notice from a reading of the FIR and the other documents on
record that the dispute was purely a personal one between twocontesting parties and that it arose out of extensive business
dealings between them and that there was absolutely no public
policy involved in the nature of the allegations made against the
accused.”
This is not so in the present case where the Police Officer in his counter has
stated that even another FIR is pending against the Applicant No.3 for an
offence under Section 302 read with Section 34 of the Indian Penal Code at
J. J. Marg Police Station. Therefore, in our view, this judgment would also
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be of no help to the applicants.
7. There is another judgment in the case of Rajinder Singh v/s The
State (Delhi Administration), reported in AIR 1980 SC 1200. In this case
only the offence under Section 325 was compounded. For other offences
which were non-compoundable, the sentence were reduced. Another
Judgment in the case of Fahimuddin and others v/s State of U.P. And
another, reported in AIR 1981 SC 2008, in special leave to appeal the
Supreme Court found that the accused were guilty under Section 324 of the
Indian Penal Code which was compoundable and therefore they were
allowed to compromise. The applicants have also relied on a judgment of
the Full Bench of this Court in the case of Abasaheb Yadav Honmane v/s
State of Maharashtra & Anr., reported in 2008 (2) Mh. L. J. 856, on the
principles of quashing. The Full Bench of this Court also relied on the earlier
judgments of the Supreme Court and the principles laid down in the case of
Bhajan Lal (Supra) . In paragraphs 7.10 it referred to the various judgments
of the Supreme Court and carved out the principles as laid down by the
Supreme Court in some of the judgments. These principles may also be
enumerated below:
1. The High Court, in exercise of its inherent powers under section
482 of the Code, may interfere in proceedings relating to
cognizable offences to prevent abuse of the process of any
Court or otherwise to secure the ends of justice very sparingly::: Downloaded on – 09/06/2013 14:00:37 :::
9and with circumspection;
2. Inherent power under section 482 of the Criminal Procedure
Code should not be exercised to stifle a legitimate prosecution;
3. Power under section 482 of the Criminal Procedure Code is not
unlimited. It can inter alia be exercised where the Code is
silent, where the power of the Court is not treat ed as
exhaustive, or there is a specific provision in the Code; or the
statute does not fall within the purview of the Code because it
involves application of a special law;
4. The inherent power of the High Court can be invoked in respect
of matters covered by the provisions of the Code unless there is
specific provision to redness the grievance of the aggrieved
party;
5. Inherent power under section 482 of the Code overrides
provisions of the Code but evidently cannot be exercised in
violation / contravention of a statutory provision or power
created under any other enactment;
6. Power under section 482 to quash proceeding should not be
used mechanically or routinely, but with care and caution;
7. Such power should be used only when a clear case for quashing
is made out and failure to interfere would lead to a miscarriage
of justice;
8. Inherent jurisdiction under section 482, Criminal Procedure
Code may be exercised in following three circumstances.
(i) to give effect to an order under the Criminal Procedure
Code;
(ii) to prevent abuse of the process of Court; and
(iii) to otherwise secure the ends of justice.
9. Inherent power should be exercised to do the right and undo a
wrong;
10. In exercise of inherent power under section 482 of the Code,
Court would be justified to quash any proceeding if the
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initiation / continuation of such proceeding amounts to `abuse
of the process’
of the Court or quashing of the proceeding
would otherwise serve the ends of justice;
11. While exercising inherent power under section 482 of the Code,
High Court must refrain from making imaginary journey in the
realm of possible harassment which may be caused to
concerned petitioner on account of investigation of FIR or
complaint;
12. While exercising inherent power under section 482 of the Code,
the High Court must all the while be conscious of the fact that
its exercise of such power will not result in miscarriage of
justice and will not encourage those accused to repeat the
crimes;
13. The inherent powers of High Court under section 482 of the
Code, cannot be exercised in regard to matters specifically
covered by the other provisions of the Criminal Procedure
Code;
14. For the purpose of quashing, the complaint has to be examined
as a whole, but without examining the merits of the allegations.
Neither a detailed inquiry nor a meticulous analysis of the
material nor an assessment of the realibility or genuineness of
the allegations in the complaint, is warranted while examining
prayer for quashing of a complaint;
15. The exercise of inherent jurisdiction under section 482 of the
Code should not be such as to harm legitimate expectation of
the people and the society, that the persons committing offence
are expeditiously brought to trial and if found guilty are
adequately punished;
16. Inherent powers may be used only when reasonably necessary
for the Court to be able to function and Courts may not exercise
inherent powers merely because their use would be convenient
or desirable;
17. The exercise of inherent power would be necessary whenever it
is just or equitable and it should be to ensure observance of the
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due process of law, to prevent improper vexation or oppression
and to do justice between the parties and to secure a fair trial;
and
18. While passing an order quashing FIR or criminal proceedings,
as the case may be, it may be appropriate for the Court to
examine the impact of such an order upon the system of
administration of criminal justice and the social fabric. This, of
course, is not a determinative factor but only a relevant
consideration.
Then in paragraph 9 the Full Bench held as under:
“9.
We have already held that power of the Court to compound
offences and power to quash the FIR or criminal proceedings are
distinct and different. They operate in different spheres and aredifferent concepts of criminal jurisprudence. Power to quash an FIR
or criminal proceedings under section 482 of the Code finds its
source from Judge made law, while power to compound is a
statutory power granted by the language of section 320 of the
Code. Both these powers have nothing in common except theultimate result, that is, acquittal. They have to be exercised upon
satisfaction of different criteria, fulfilment of relevant ingredientsand satisfaction of the object of legislative intent behind these
provisions. Power to quash the criminal proceedings is a power
which springs from the generality of the provisions of section 482
of the Code and to be exercised in consonance with the judicialpronouncements.”
8. While dealing with two judgements of the Supreme Court reported in
(1999) 2 SCC 213 and JT (1987) 2 SC 361, the Supreme Court has observed
in the case of Surendra Nath Mohanty and another v/s State of
Orissa,reported in (1999) 5 SCC 238 as under:
“5. In our view, the submission of the learned counsel for the
respondent requires to be accepted. For compounding of the
offences punishable under the Indian Penal Code, a complete::: Downloaded on – 09/06/2013 14:00:37 :::
12scheme is provided under Section 320 of the Code of Criminal
Procedure, 1973. Sub-section (1) of Section 320 provides that the
offences mentioned in the table provided thereunder can becompounded by the persons mentioned in column 3 of the said
table. Further, sub-section (2) provides that the offences mentioned
in the table could be compounded by the victim with the permission
of the court. As against this, sub-section (9) specifically providesthat “no offence shall be compounded except as provided by this
section”. In view of the aforesaid legislative mandate, only the
offences which are covered by Table 1 or Table 2 as stated above
can be compounded and the rest of the offences punishable underthe Indian Penal Code could not be compounded.”
“8.
We reiterate that the course adopted in Ram Pujan v. State of
U.P. And Mahesh Chand v. State of Rajasthan was not in
accordance with law. …. … … … …”
9. For the reasons given above, we do not find any merits in the
application and the FIR cannot be quashed at this stage. Accordingly, the
application for quashing of the FIR No.22 of 2008 registered with the Antop
Hill Police Station, Mumbai on 21st January, 2008 is rejected.
Sd/-
(BILAL NAZKI, J.)
Sd/-
(A. A. KUMBHAKONI, J.)
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