Allowed

Nidubrole Koteswara Rao and Another v. the State of A.P.

Andhra Pradesh HC16 Nov 2023CRLRC/2211/2009

Case brief

AI extract

What is this about?

The High Court allowed the criminal revision and miscellaneous applications, exercising its inherent powers under Section 482 Cr.P.C. to quash the proceedings for an offence under Section 324 IPC. This was deemed appropriate because the parties had amicably settled the dispute, and continuing the trial would be an abuse of process despite the non-compoundable nature of the offence.

What did the court decide?

Conviction and sentence set aside; Petitioners acquitted; Fine refunded.

Nidubrole Koteswara Rao and Another Vs the… — Criminal Trial and Appeal | Andhra Pradesh HC (2023)

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THE HON'BLE SRI JUSTICE V.SRINIVAS

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I.A.NO.2 & 3 of 2023 IN/AND CRIMINAL REVISION CASENo.2211 of 2009

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COMMON ORDER:

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Assailing the judgment dated 15.12.2009 in Crl.A.No.365 of 2009 on the file of Court of learned XI Additional District & Sessions Judge, (Fast Track Court), Guntur at Tenali, confirming the conviction and sentence imposed by the judgment dated 13.10.2009 in C.C.No.66 of 2008 on the file of Court of learned II Additional Judicial Magistrate of First Class, Tenali for the offence under Section 324 r/w.34 IPC, the petitioners/accused filed the present criminal revision case under Section 397 read with 401 of the Criminal Procedure Code, 1973 (hereinafter referred as “Cr.P.C.”)

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The revision case was admitted on 31.12.2009 and the sentence of imprisonment was suspended.

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Pending criminal revision case, I.A.Nos.1, 2 and 3 of 2023 were filed by the petitioners and defacto-complainant.

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The petitioners herein and others were arrayed as accused in Crime No.70 of 2007 of Duggirala Police Station for the offences punishable under Sections 324,509 and 506 read

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with 34 IPC and police after conducting investigation filed charge sheet and the same was taken on file as C.C.No.66 of 2008 for the offences punishable under Sections 324 and 509 read with 34 IPC and the trial was conducted and petitioners herein are acquitted for the offence under Section 509 IPC and convicted for the offence punishable under Section 324 read with 34 IPC and also sentenced to undergo imprisonment for a period of six months each and also pay a fine of Rs.500/- each for the charge under section 324 r/w.34IPC, in default, suffer simple imprisonment for three (3) months

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Aggrieved by the said conviction and sentence imposed by the Trial Court, the petitioners/accused filed an appeal, vide Crl.A.No.365 of 2009, before the Court of learned XI Additional District and Sessions Judge (Fast Track Court), Guntur at Tenali and the first Appellate Court dismissed the said appeal. Against the said judgment, the present Criminal Revision Case is preferred by the petitioners herein and when it is pending for consideration and while hearing the revision, the petitioners herein and 2^nd respondent/defacto complainant are present in the Court.

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The defacto-complainant was impleaded as 2^nd respondent in the present revision, vide orders dated 16.11.2023 in I.A.No.1 of 2023.

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I.A.No.2 of 2023 is filed under Section 320(2) of Cr.P.C. by the defacto complainant/2^nd respondent, seeking to record the compromise and compound the offence against the petitioners herein. The petitioners herein and defacto complainant produced their respective identity proofs, they were identified by the learned counsel on both sides and they jointly filed a compromise petition stating that pending the Revision Case, both the parties have settled the dispute amicably out of the Court at the intervention of their elders and well-wishers to maintain peace and tranquility in the locality and the elders have pacified the differences between them.

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I.A.No.3 of 2023 is jointly filed by the defacto complainant and petitioner/accused seeking permission of the Court to compound the offence under Section 324 of IPC.

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Now the question come up for consideration is whether the petitioners as well as 2^nd respondent can permit to invoke the provisions of Section 482 of Cr.P.C., which is inherent power to the High Court to make orders necessary to meet the ends of justice and to prevent the abuse of process of Court.

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Section 482 of Cr.P.C. conferred powers on the High Court to exercise inherent powers, and said section reads as follows:

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“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 this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice”.

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Generally, Section 482 Cr.P.C used to invoke to quash the criminal proceedings including F.I.R. or complaint in appropriate cases. The decision to invoke Section 482 Cr.P.C. in a criminal revision under Section 397 Cr.P.C. will depend on the facts and circumstances of each case.

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In this connection, the learned counsel for the petitioners brought to the notice of this Court judgment of Hon’ble Supreme Court in between Shiji @ Pappu v. Radhika¹ , wherein at paragraph No.17 held as follows:

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“13.It is manifest that simply because an offence is not compoundable under Section 320 IPC is by itself no reason for the High Court to refuse exercise of its power under Section 482 Cr.P.C. That power can in our opinion be exercised in cases where there is no chance of recording a conviction against the accused and the entire exercise of a trial is destined to be an

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1(2011) 10 SCC 705

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exercise in futility. There is a subtle distinction between compounding of offences by the parties before the trial Court or in appeal on one hand and the exercise of power by the High Court to quash the prosecution under Section 482 Cr.P.C. on the other. While a Court trying an accused or hearing an appeal against conviction, may not be competent to permit compounding of an offence based on a settlement arrived at between the parties in cases where the offences are not compoundable under Section 320, the High Court may quash the prosecution even in cases where the offences with which the accused stand charged are non-compoundable. The inherent powers of the High Court under Section 482 Cr.P.C. are not for that purpose controlled by Section 320 Cr.P.C.”

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Herein this case, whether invoking provisions under Section 482 of Cr.P.C. is required in an offence under Section 324 IPC, which is not compoundable. The petitioners as well as 2^nd respondent categorically stated that on the intervention of elders of both the parties and well-wishers to maintain peace and tranquility in their locality and also in their respective families, they intend to compromise the matter and the 2^nd respondent, who is defacto complainant came forward for recording the compromise. On examination, she stated that she voluntarily came forward to compromise the matter with the

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petitioners herein and she has no objection to set aside the conviction and sentence recorded against the petitioners herein.

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It is needless to mention that the High Court has to exercise its inherent powers under Section 482 Cr.P.C in the circumstances so warrants such an invocation. Section 482 Cr.P.C. is very clear that it may be used its inherent power to meet the ends of justice or found to continue the proceedings would be abuse of process of Court or otherwise to meet the ends of justice to the parties.

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This Court is conscious of the fact that the inherent power used under Section 482 Cr.P.C. is discretionary, sparingly and cautiously to prevent misuse and while using it should also be conscious. The Hon’ble Supreme Court and High Courts laid guidelines, when the inherent powers can be invoked, where there is an abuse of process of the Court or to meet the ends of justice the Court can invoke inherent jurisdiction.

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In this connection, it is also relevant to make a mention judgment of the Hon’ble Supreme court in Central Bureau of Investigation v. Ravi Shankar Srivastava, IAS² , wherein had

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22006 AIR SCW 3990

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laid down the powers of the High Court under Section 482 Cr.P.C., which are as follows:

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“Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives

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him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist." restored powers of the High Court under Section 482 Cr.P.C.”

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In view of the above ratio laid down by the Hon’ble Supreme Court as well this Court, also perused another judgment of the Hon’ble Supreme Court in between Gian Singh v. State of Punjab³ , wherein at paragraph No.61 held as follows:

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“61.The position that emerges from the above discussion can be summarized thus: 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; (i) to secure the ends of justice or (ii)

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3 (2012) 10 SCC 303

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to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and 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 serious impact on society. Similarly, any compromise between the victim and 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 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,

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because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put 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 wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.”

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It is also relevant to refer the judgment of High Court of Andhra Pradesh between Darapuneni Raj Kumar v. The State of A.P.⁴ , wherein it was held that “Both parties i.e., revision petitioner and defacto complainant, appeared to compound with the application under Section 320(1) Cr.P.C. seeking permission of the Court to compound the offence. Section 324 I.P.C. is not covered to compound under Section 320(1) Cr.P.C. without

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4(2014) 09 AP CK 0123

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permission of the Court, by the de facto complainant. Even as per Section 320(2) of Cr.P.C., with permission of Court it is covered for compounding. The Apex Court while referring to Section 320 Cr.P.C. read with 324 I.P.C. permitted such compounding vide decision Avinash Shetty v. State of Karnataka (2006) 1 SCC (Crl) 316.”

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Taking into consideration of the above authoritative pronouncements and in view of the joint memo filed by the revision petitioners and the 2^nd respondent/defacto complainant and affidavit filed with regard to the compromise between the parties, this Court deems it appropriate to allow the present criminal revision case. Having regard to the above, I.A.Nos.2 and 3 of 2023 are allowed.

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In the result, the Criminal Revisions Case is also allowed and the conviction and sentence imposed vide judgment dated 13.10.2009 in C.C.No.66 of 2008 on the file of Court of learned II Additional Judicial Magistrate of First Class, Tenali, as confirmed in the judgment dated 15.12.2009 in Crl.A.No.365 of 2009 on the file of Court of learned XI Additional District and Sessions Judge, Guntur at Tenali, is hereby set aside. The revision petitioners/accused Nos.1 and 2 are acquitted for the

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offence under Section 324 r/w.34 IPC. The fine amount paid by the petitioners/accused Nos.1 and 2, shall be refunded to them.

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As a sequel, miscellaneous applications pending, if any, shall stand closed.

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_______________________ JUSTICE V.SRINIVAS

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Date: 16.11.2023 Knn/Krs

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THE HON'BLE SRI JUSTICE V.SRINIVAS